Cross border claims: learnings from recent decisions on forum conveniens

Very nearly ten years ago the British electorate voted to leave the European Union, with membership ending on 31 December 2020. In the narrow field of cross border claims – or, more formally, private international law – the impact has been significant.

Rules for designating applicable law have not changed in substance, but instead the EU’s Rome II regulation on the issue has been subsumed into English law as an example of “assimilated law”.  It is on the question of jurisdiction, i.e., can the English court legitimately hear the claim, that there has been the greatest change, with the common law approach replacing the provisions of the Recast Brussels Regulation (EU 1215/2012) from EU exit day (31 December 2020).

We summarised the three elements of the common law test of jurisdiction in this article in early 2024. Two recent claims further emphasise the critical importance of the forum conveniens element of the approach.

Chmielnicki – moderate injuries in an accident in Poland

The first claim, Chmielnicki v Sopockie Towarzystwo Ubezpieczeń (23 April 2026, Manchester County Court, unreported) stemmed from a road traffic accident in Poland in 2021. All parties involved were Polish nationals, but the claimants were domiciled in England & Wales and returned here after the accident. The claimants issued proceedings here and the defendant sought to challenge on the grounds that England was not forum conveniens, i.e., not the most appropriate forum for hearing the case. Success for the defendant would mean a stay in the English proceedings and the matter having to be pursued in Poland.

Key factors within the case connected it strongly to both England and Poland. On balance, the judge found that England was the natural forum, with the residency of the claimants, the location of the provision of their medical treatment, rehabilitation and evidence on quantum appearing to be the elements of the case that tipped the balance in favour of the English court. The decision suggests that features such as the place of the accident, the applicable law, the nationality of the parties, the location of the defendant and its insurer were not, in this particular case at least, quite enough to show that England was forum non conveniens.

As in this claim, where there is an alternative forum that could take jurisdiction (here, Poland), the leading case - Spiliada Maritime Corp v Cansulex Ltd [1986] UKHL 10 - requires the judge additionally to assess the risk of substantial injustice to the claimant if the case was pursued there. In the present case, the judge found no evidence of substantial injustice if the matter was to be pursued in Poland but, despite this finding, nevertheless held that England was the most appropriate forum, an aspect of the decision that is difficult to understand and seems perhaps to blur the distinction between the first (appropriate forum) and second (risk of injustice) aspects of the Spiliada test.

In general, the ‘merits’ element of the jurisdiction test is a fairly low bar. On the ‘gateway’ element, it was hoped that FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45 had cleared the picture on tort gateway – damage sustained within the jurisdiction - and left any substantive disputes on jurisdiction mainly to arguments on forum. In Chmielnicki the injuries were incredibly modest and might be said to stretch the definition of suffering direct or indirect harm within the jurisdiction, on the basis that only modest aches and pains remained on the claimants’ return to England.

Fox – complex injuries from an accident in Spain

The second recent case is factually more complex. It involved an English truck driver employed by the English defendant company being seriously injured in a forklift accident in warehouse in Spain. On being served with High Court proceedings issued in England, the defendant employer filed a defence and made a part 20 application to add the Spanish driver of the forklift and his insurer as second and third defendants to seek indemnity or contribution against them.

These aspects bring far greater complexity to this case when compared to Chmielnicki. Not only were there contractual and tortious claims against the first defendant (which might well be subject to different applicable laws) but, in addition, the part 20 claims against the Spanish defendants raised the prospect of parallel proceedings between the first and second defendant and the latter and its insurer. Furthermore, although any proceedings in England involving the insurer would be subject to a different jurisdictional gateway than the contract and tort claims against the first and second defendants, forum conveniens would remain a relevant consideration.

The second and third defendants disputed jurisdiction, challenging forum conveniens, and sought a stay of the proceedings in England. Wiliams J delivered her judgment on 6 May in Fox v Steve Fellows Road Haulage Services Ltd & Ors [2026] EWHC 1054 (KB).

The decision carefully considers the various claims in play between the parties. This article deliberately side steps that detailed analysis – which would repay a close reading at a later date – to consider forum conveniens broadly, as the judge did in reaching her decision on jurisdiction.

She was satisfied that England was the most appropriate forum for all claims in the proceedings given the very real risk of different or diverging outcomes if the principal claim, the contribution claim, and the insurance aspect were to be heard in different courts. She concluded, in the passage below which combines parts of her paragraphs 110 and 133, that:

“the Court’s task, generally speaking, is to identify the single jurisdiction in which the claims against all the defendants may most suitably be tried. The claim against D1 is proceeding in this jurisdiction … [which] is the appropriate forum for hearing the Claimant’s claims against all defendants, including D2 and D3. There would be a considerable risk of irreconcilable judgments and of unnecessary expense and delay if I were, nonetheless, to conclude that D1’s contribution claim against D2 and D3 should be heard in a different jurisdiction…. There is a very considerable degree of overlap in terms of the evidence and the issues. The claims essentially involve one factual investigation and are closely bound up together. It is plainly in the interests of justice that the contribution claim is heard in the same proceedings as the Claimant’s claim against the Defendants.”

The judge dealt briefly with the injustice aspect of the Spiliada test, simply observing that the claimant’s counsel “did not seek to argue that the matters she raised regarding funding went as far as showing that there was a real risk of a denial of justice if the Claimant's claim against D2 and D3 was heard in Spain.”

Key themes and practical implications 

These two decisions demonstrate that following Brexit there is significantly reduced predictability in cases involving jurisdictional challenges. Forum disputes have become highly discretionary and intensely fact-specific, with defendants now operating within a less predictable jurisdictional landscape than was the case under the structured approach set out in the Recast Brussels Regulation.

Arguments centered on the accident occurring abroad, the location/residency of foreign witnesses, the application of foreign law, and the involvement of local insurers or defendants, while still relevant, are no longer determinative in isolation. In Fox, for example, the High Court retained jurisdiction notwithstanding that the accident took place in Spain, Spanish defendants were involved, and aspects of the claim were governed by Spanish law.

The court instead prioritised considerations of avoiding fragmented litigation and promoting case management efficiency. The English employer remained central to the dispute, and the contribution issues overlapped significantly, resulting in the Spanish defendants being drawn into the English proceedings. This underlines that even strong foreign forum factors may be outweighed by interconnected liability issues.

The courts are also increasingly influenced by the location where losses are sustained -  which is not necessarily the same as where the accident occurred - and jurisdictional challenges have become heavily evidence-driven. In both Chmielnicki and Fox, substantial weight was given to the fact that the claimant’s rehabilitation, ongoing medical treatment, and future losses were being evidenced and managed in England. This suggests that, particularly in higher-value claims involving significant and ongoing losses administered within England, it may become progressively more for defendants successfully to challenge jurisdiction.

For defendant practitioners, this evolving position indicates that jurisdictional challenges are no longer primarily legal exercises, rather, they have become highly fact-sensitive and evidentially-driven disputes. Particular emphasis should be placed on the location of witnesses, the applicable governing law, the availability and quality of investigative evidence abroad, and associated costs. Parties should gather evidence of these matters as early as possible in order to make a properly informed decision about the likely jurisdiction(s) in which the claim will be heard.

Careful consideration has to be given by a foreign insurer on when and if to undertake an expensive and timely challenge. There seems a recent shift of the English courts to be more inclined to seek outcomes on jurisdiction that look a lot like the pre-Brexit status quo (although based on very different legal authority) and to retain matters that some practitioners envisaged would no longer be possible to litigate in England & Wales as a consequence of the Recast Brussels Regulation no longer applying. 

Overall, these recent decisions underline that the question of jurisdiction in ‘accidents abroad’ cases pursued in England & Wales remains a matter of judicial discretion, in the exercise of which judges will rely on the specific evidence before them on a case-by-case basis.

[Clyde & Co acted in both cases referred to in this article.]