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...
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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