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Forum Non-Conveniens Discretion in Third Party Proceedings

Published online by Cambridge University Press:  17 January 2008

Koji Takahashi
Koji Takahashi
Affiliation:
University of Birmingham
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Extract

Third party procedure has the merits of saving time and expenses and of preventing inconsistent decisions through eliminating the duplication of proceedings. Because of these procedural merits, third party proceedings (called ‘Part 20 proceedings’1 in the Civil Procedure Rules 1998 (CPR)) are often instituted to bring a claim for contribution. In English law, contribution claims are allowed under the Civil Liability (Contribution) Act 1978 (hereafter the 1978 Act) between wrongdoers such as tortfeasors and defaulters in contracts. Not all legal systems allow contribution claims in such wide circumstances. A third party claim form (called a ‘Part 20 claim form’ in the CPR) may be served out of the jurisdiction under the CPR Rule 6.20(3 A),2 which provides for a special base of jurisdiction for third party proceedings in the case where the third party is a ‘necessary or proper party’ to the claim against the Part 20 claimant. The service is, however, subject to the permission of the court which will not be given unless England is judged to be clearly the most appropriate forum under the forum conveniens discretion.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 51 , Issue 1 , January 2002 , pp. 127 - 134
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 The CPR Rule 20.2 reads in pertinent part:

(1) A Part 20 claim is any claim other than a claim by a claimant against a defendant and includes–

…

b. a claim by a defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy; and

c. where a Part 20 claim has been made against a person who is not already a party, any claim made by that person against any other person (whether or not already a party).

(2) In this Part ‘Part 20 claimant’ means a person who makes a Part 20 claim.

2 It reads in pertinent part:

In any proceedings to which rule 6.19 does not apply, a claim form may be served out of the jurisdiction with the permission of the court if:

…

(3A) claim is a Part 20 claim and the person to be served is a necessary or proper party to the claim against the Part 20 claimant.

3 [2001] EWCA Civ 418, [2001] 1 All ER (Comm) 993.

4 Although the wording of the CPR Rule 6.20 is different from that of O.I 1, r. 1(1), the court proceeded on the basis that the former authorities relating to O.I 1 remained applicable.

5 [1992] 1 Lloyd's Rep 570, 591.

6 [1988] 1 Lloyd's Rep 352.

7 [1989] 2 Lloyd's Rep 390.

8 [1997] 1 Lloyd's Rep 635.

9 eg The Kapetan Georgis [1988] 1 Lloyd's Rep 352; Bouygues Offshore SA v Caspian Shipping Co (No 3) [1997] 2 Lloyd's Rep 493.

10 [1997] 2 Lloyd's Rep 493.

11 [1987] AC 871 (Privy Council).

12 R. A. Lister & Co. Ltd. and Others v E. G. Thomson (Shipping) Ltd. and Another (No 2) (The Benarty) [1987] 1 WLR 1614; Virgo Steamship Co SA v Skaarup Shipping (The Kapetan Georgis) [1988] 1 Lloyd's Rep. 352; Arab Monetary Fund v Hashim (No 9) The Times 11 Oct 1994.

13 (1799) 8 TR 186, 101 ER 1337.

14 eg, Law Reform Committee of South Australia, 42nd Report of the Law Reform Committee of South Australia to the Attorney-General Relating to Proceedings Against and Contributions between Tortfeasors and Other Defendants (1977) 10–11; Victoria, Chief Justice's Law Reform Committee, Contribution (1979) para 5; Law Reform Commission of Hong Kong, Report on the Law Relating to Contribution Between Wrongdoers (Topic 5, 1984) para 5.3; Ontario Law Reform Commission, Contribution among Wrongdoers and Contributory Negligence (Report 89, 1988); Law Reform Commission of Saskatchewan, Proposals Relating to Joint Obligations (Report to the Minister of Justice, 1985) 8–10; Law Commission (New South Wales), Contribution Between Persons Liable for the Same Damage (Discussion Paper 38, 1997).

15 S 2(1), which reads in pertinent part: ‘the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person'

16 G Williams, Joint Torts and Contributory Negligence (1951) para 39.

17 A Briggs, ‘The International Dimension to Claims for Contribution: Arab Monetary Fund v Hashim’ [1995] LMCLQ 437.

18 Ibid.

19 Takahashi, K., Claims for Contribution and Reimbursement in an International Context: Conflict of Laws Dimensions of Third Party Procedure (Oxford, 2000), 67–77.Google Scholar