Following a referral from the Court of Appeal, the European Court of Justice ("ECJ") decided that an English court cannot stay proceedings in favour of a state that is not a party to the Brussels Convention (“a non-contracting state”) on the basis that there is a more suitable forum for trial.
In Owusu v Jackson & Ors (case C-281/02), Mr Owusu (the "claimant") suffered serious injuries in a diving accident in Jamaica. The claimant was domiciled in the UK. The claimant issued proceedings in the English courts against Mr Jackson, (the "first defendant") (who was also domiciled in the UK) and several Jamaican companies.
It was held that the claimant could bring his claim in England even though Jamaica may have been a more suitable forum. A stay could not be ordered under the Brussels Convention on the basis of "forum non conveniens" in respect of a non-contracting state. The ECJ held that the Brussels Convention precluded a court of a contracting state from declining the jurisdiction, conferred on it by Article 2 of the Convention, on the basis that a court of a non-contracting state would be a more appropriate forum for the trial. This decision appears to have restricted the flexibility that has currently been enjoyed by the English courts to ensure that a dispute is heard in its natural forum.
The importance of the case is in the determination of questions of jurisdiction where the claimant wishes to sue defendants domiciled in England and defendants domiciled in a non-contracting state in the same proceedings. Where a number of defendants are sued in England but only one is domiciled there, the English courts cannot stay proceedings even if the natural forum is a non-contracting state. The upshot of this case is that defendants may find themselves dragged into proceedings in England, even if they and the subject matter have no connection to England.