In Mouly v AIG Insurance, Hickinbottom J was faced with an unusual application from an English-domiciled insurance company to strike out or stay proceedings on the basis that Scotland was the forum conveniens. The Claimants, all French nationals, were injured in the course of a short holiday in Scotland when the driver (their husband and father) drove onto the wrong side of the road. Liability was admitted at an early stage and expert evidence obtained from English medico-legal experts. Proceedings were issued in England and served on AIG’s appointed (English) solicitors. The Defendant acknowledged service without challenging jurisdiction and two extensions of time were sought and obtained for service of a Defence before the Defendant brought the application out of time, raising for the first time the contention that the claim should proceed in Scotland. Hickinbottom J granted the retrospective extension of time (accepting the Claimants’ contention that he had to apply the test for relief for sanctions) but dismissed the application. It was agreed that the Claimants could not be required to litigate in France, but the domestic courts can still allocate jurisdiction between themselves depending on which is the forum conveniens. The question of forum conveniens had to be set against the issues that were actually likely to arise at trial, here the injuries the Claimants had suffered and the assessment of those damages under French law. The Defendant had not adduced any evidence to show why Scotland was clearly the more appropriate forum to determine those issues.
Katherine Deal acted for the successful Claimants, instructed by Pierre Thomas & Partners.
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February 12, 2021
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