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That is if the jurisdiction of no other contracting state was in issue and the trial had no connecting dynamic to any other contracting state.
In response to this question, the European court responded in the negative and asserted that the international factor that had to exist for the Convention to apply did not have to consist in a variety of contracting states being involved (Hawkings 2005). On the contrary, it could consist of the claimant and a single defendant living in a contracting state, with the events presented in the case having occurred in a non-contracting one (Hawkings 2005). In addition, the second article of the Convention was compulsory, and therefore could not, on its basic wording or upon other considerations, acquiesce to any caution founded on forum non-conveniens, for which no condition was made in the Convention (Hawkings 2005). This was true, even in a case such as the present where there may be authentic difficulties in trying the case in England rather than Jamaica (Hawkings 2005). In other words
In spite of the support of the UK Government, the ECJ in its decision of 1 March 2005 (Case C-281/02) supported the claimant's position, and held that since Mr. Jackson was domiciled in England, Mr. Owusu had an absolute right to sue him here. The position of the other defendants was nothing to the point, nor were the difficulties and complications which might follow if the claim against Mr. Jackson proceeded in England while the claims against the other defendants were remitted to Jamaica (eg inconsistent judgments, impossibility of contribution proceedings, enforcement problems) (Doherty 2005)."
Overall the practical implications of the ECJ decision Owusu v Jackson on the ability and powers of the English court to decide whether to hear a case or not on the basis of forum (non)conveniens appear to be groundbreaking. However, there have been other cases since this judgment was handed down in which the court decided in a manner that was completely different from this case.
Although there have been many other cases that have brought into question the status of the forum non-conveniens concept, none in recent years has allowed the European Court of Justice to exercise such authority over the concept. Granted this was a rather complicated case because the accident took place in another country and several defendants were name. On the surface one would automatically assume that Mr. Jackson could be tried in England because he and the claimant both resided in the country. On the other hand, the naming of the other five defendants in the same lawsuit was problematic from the beginning.
These problems arise because the other five defendants had no connections to the United Kingdom accept by way of Mr. Owsuwu. In addition, the actual accident took place in Jamaica; this means that witnesses and hospital records would be more readily available if the other five defendants were remitted to Jamaica. In other words, to assure that the case was heard in a manner that would not be inconvenient to the parties involved, the other defendants had to be tried in Jamaica.
The most prominent implication for ECJ that has occurred because of this case is the ability of citizens to find justice in the United Kingdom even if they are injured in another country. This is the case when both the claimant and the defendant are from the United Kingdom. The court has established with this case the importance of establishing jurisdiction and the problems that can arise in such cases especially as it relates to insurance policies.
This implication will have a profound effect on insurance companies because as was demonstrated by this case, insurance policies differ in the extent of coverage. In addition, some policies are only accessible within the country that the injury or harm to property is suffered. In the long run such implications can be extremely harmful to those that have suffered injury because they may not be able to receive the compensation that they deserve because the location is inconvenient.
The Osuwu case provides a clear picture of the type of power that the ECJ have to decide the location of a case. However, the decision made by the court does not set precedent in terms of the types of cases that will be heard in the United Kingdom when defendants from other countries are involved and when the incident in question actually occurred in another country. This fact is evident in that other trials that have taken place since the decision such as Konkola Copper Mines Plc v Coromin. In this case also involving serious injuries, the insurance company argued that just as with Owusu v Jackson that the court did not have jurisdiction to hear the proceedings against the defendant pursuant to Council Regulation 44/2001 or the Lugano Convention because the defendants were domiciled in Member States (LDR Legal Update 2005). However, the article explains that The Court held that cases that involved foreign jurisdiction clauses could be distinguished from forum non-conveniens cases and that the decision in Owusu had not changed the approach to the applicability of such clauses. A clause which conferred jurisdiction on the courts of a non-contracting state, could be effective against a defendant domiciled in a contracting state, subject to the court's discretion (LDR Legal Update 2005)."
In the aforementioned case, the Owusu v Jackson lawsuit served as proof that the court recognizes a difference between foreign jurisdiction clauses and forum non-conveniens. In doing this the ECJ can quickly deciphers between the two types of cases involving jurisdiction.
Indeed the Owusu v Jackson case simply demonstrated the discretion that the court had in deciding such issues. In this particular case it is obvious that the ECJ chose to use the new method of forum non-conveniens discussed previously in the research. That is the judge saw fit to choose the most appropriate place to hear the case.
It also seems that the power exercised in this case by the ECJ will also be important for private citizens. So often, the decisions made by high courts only have a positive impact on big business. This case illustrates that in the United Kingdom that individuals have a right to be compensated for injuries suffer while in another country. This could potentially be important to laws that are written in the future concerning insurance coverage.
In the future, this case will be at the forefront of many arguments concerning jurisdiction and incidences that occur on foreign soil. It can be expected that insurance companies in particular will attempt to persuade the ECJ that the issue of jurisdiction must be closely examined. In the future, the court will definitely have to allow some cases to be heard in the United Kingdom and the freedom to do so will come in part from the Osuwu v Jackson case.
The power and ability to decide such cases will depend wholly on the judgment of the court. If by example the judge believes that the claimant and the defendant would benefit more from having a case stayed in the country in which the incident occurred, the judge must be able to establish why such a move is important. The ECJ will have to truly examine whether or not the people or companies involved in the case can develop an accurate and court worthy case in the location that they are seeking. The idea of the location of the trial being convenient to everyone involved is necessary in some cases. For instance, in the case of Owusu v Jackson the claimant was injured but the defendants were not. Having the case heard in the United Kingdom was therefore more accessible for the claimant.
On the other hand having the case for the other defendants remitted back to Jamaica was also important because the defendants needed to be able to prepare for the trial properly. Being in Jamaica would allow them to go to the house where the incident occurred and present their case. The people involved would be to see the seen of the accident and make their own assessments about the absence of either warning signs or verbal warnings.
Additionally the implication of the ECJ having the power to decide which cases to hear in any given jurisdiction would reduce the strain of unwanted or unmanageable cases. In other words the ability to exercise such power will greatly reduce the caseload present in the court system which will minimize the cost that taxpayers will have to pay.
Giving such power to the ECJ will also reduce the likelihood of victims not being compensated because jurisdictions have different laws. For instance, there are different laws that govern the Jamaican insurance industry as it relates to the filing of claims and receiving of settlements. If the five defendants that had insurance rendered to them in Jamaica were tried in the United Kingdom and the claimant was granted an award based on the laws that govern the insurance industry in the…[continue]
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There were many factors quoted for the reasons for this type of incompatibility, and they were the following: Article 2 of the Brussels Convention is in fact mandatory, and it can only be derogated from in the numerous ways and means that have been expressly provided for in the Convention. Similarly, there was no provision for the forum non-conveniens in Article 2 of the Convention, and this was despite the
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