Doctrine Of 'Forum Non-Conveniens' And Tort Claims: A Comparative Analysis Between India And United States

Understanding the Doctrine of Forum Non Conveniens

The common law doctrine of 'forum non-conveniens' is a latin term for 'inconvenient forum'. In Black‟s Law Dictionary, forum conveniens has been defined as the court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses. The concept of forum conveniens fundamentally means that it is obligatory on the part of the court to see the convenience of all the parties before it. The convenience in its ambit and sweep would include the existence of more appropriate forum, expenses involved, the law relating to the lis, verification of certain facts which are necessitous for just adjudication of the controversy and such other ancillary aspects.

This doctrine permits a Court to dismiss or stay a civil action (even though the forum or venue is proper, and the court has jurisdiction over the case and the parties) where an appropriate and more convenient alternate forum exists to adjudicate the matter. The doctrine has been explained by the Indian Courts as a discretionary power of the Courts to not entertain a matter on the grounds that there exists a more appropriate Court of competent jurisdiction, which would be in a better position to decide the matter. When dismissal is sought on the basis of forum non-conveniens, the Court must decide whether an alternative forum is available and, if so, whether the forum is adequate and “more convenient in light of the public and private interests involved.” Conversely, an anti-suit injunction is granted by a Court preventing the parties before it from instituting or continuing with proceedings in another court.

Approach of the Indian Courts on Forum Non Conveniens and on Anti Suit Injunction to prevent a party from prosecuting a proceeding before a Foreign Court.

The Courts in India are both Courts of Law and Equity. The Courts in India have always respected the Principle of Comity of Nations and have avoided conflict or interference with jurisdiction of a Foreign Court whose jurisdiction has been invoked by a party as a forum of choice. The Indian Courts have always accepted a Foreign Court as a party's forum of choice as long as the same does not cause any grave injustice and there are sufficient reasons for invoking the jurisdiction of a Foreign Court. When proceedings are instituted in a Foreign Court instead of the Indian Court which has natural jurisdiction, the proceedings are not per se to be treated as oppressive and vexatious nor the Foreign Court can be said to be a forum non conveniens. The above position of law is well discussed in a decision of the Supreme Court of India in Modi entertainment Network V W.S.G. Cricket Pte. Ltd. reported in (2003) 4 SCC 441. In the above-mentioned matter, the issue involved examination of principles of governing grant of an anti-suit injunction by a Court of natural jurisdiction against a party to a suit before it, restraining him from instituting and/or prosecuting the suit in a Foreign Court. When an order of anti-suit injunction is passed preventing a party from instituting or prosecuting a suit in a Foreign Court, it means the jurisdiction of the Foreign Court is not appropriate or a 'convenient forum' in the eyes of the Court of natural jurisdiction i.e., the Indian Court in the present case.

The Supreme Court of India has laid down principles that will have to be considered before adjudicating that a Foreign Court is a forum non-conveniens and granting an anti-suit injunction to restrain a party from instituting or/and prosecuting a suit in a Foreign Court. The test adopted in recent cases is whether the foreign proceedings are oppressive or vexatious.

These expressions are not clearly defined but in C.S.R. Ltd. Vs. Cigna Insurance Australia Ltd. (1997 (189) C.L.R. 345), the High Court of Australia used them in the sense "only if there is nothing which can be gained by them over and above what may be gained in local proceedings". The Supreme Court of Canada adopted the test of the requirement of "the ends of justice". The essence or the ultimate objective is to enquire how best the interests of justice will be served; whether grant of anti-suit injunction is necessary in the interests of justice.

The term "Forum Non-Conveniens" is a general power to stay actions and not entertain litigation on the ground that some other Court or Forum having jurisdiction is the appropriate Forum for trial of the action. It is applied in the interest of both parties and when the ends of justice require that the case should be tried in a different forum. The said principle is generally applied in cases of Private International Law. It requires two stage enquiry. The first stage is whether there is an alternative competent forum, which is more appropriate and second stage requires answer to the question, whether it is in the interest of justice and equity to relegate the parties to the said forum (See Chesire and North's Private International Law, 13th Edition, Part III, Chapter 13 at Page 336).The second requirement indicates the discretionary character of the said principle. The principle can be only invoked when the alternative forum is clearly and distinctly more appropriate than the forum of which jurisdiction is invoked. The principle has to be rarely invoked and only when Court is fully satisfied that the discretion should be exercised.

It is appropriate to reiterate that principle of "Forum Non- Conveniens" can be applied rarely when there are overwhelming facts and interest of justice requires that a Court that has jurisdiction should not adjudicate the suit/legal proceedings. The said principle is not to be applied liberally but with great caution and care and only when failure to do so, shall result in abuse of process of Court and cause grave injustice.

Comparative analysis between US forum vis-à-vis natural jurisdiction Courts in India

A study of a recent litigation pending before a United States District Court provides an opportunity to a draw a comparative analysis of the two jurisdictional forums. A civil action was instituted by a resident of United States who was a commercial pilot of an Airlines against the Defendants, a multi-national Hotel chain, for premises liability, negligence, and loss of spousal consortium. In September 2020, the Plaintiff stayed at the hotel in India as part of a routine layover for his work as a commercial airline pilot. On the evening of September 28, 2020, at approximately 9:50pm local time, the Plaintiff was set to depart the hotel via a hotel transport van. Plaintiff alleged that the exterior lobby of the hotel was made of dark, black marble, as was the Hotel driveway. He further alleged that there was an “unmarked, invisible, and dangerous” drop-off between the exterior lobby and the driveway. Due to the “lack of color contrast” between the two surfaces and “poor lighting in the vicinity,” Plaintiff alleged that the exterior lobby and the driveway appeared to be on “one, continuous level. No signs, warnings, or reflective tape were posted to warn guests of the drop-off. As the Plaintiff proceeded from the exterior lobby to the driveway, he fell and sustained serious injury. Plaintiff received some emergent medical services at the Indian airport, and upon his return to the United States, he continued to receive medical treatment for his injuries, including a fibular avulsion fracture, along with torn ligaments and tendons. He also suffered from regional pain syndrome, which jeopardized his medical clearance and certification as a commercial airline pilot. Additionally, his wife alleged to have suffered damages due to the impact of his injury on their marriage. The Defendants each brought motions to dismiss against Plaintiff on the grounds of forum non- conveniens, arguing that the case should properly be heard in India.

The question whether a civil action should be dismissed or not on the ground of forum non- conveniens has to be decided on considering the following:

A. THE LAW OF TORTS IN INDIA IS NOT CODIFIED.

In absence of a codified law of Torts, Civil Suit to claim damages for injury will have to be preferred under Section 9 of the Code of Civil Procedure by taking recourse to common law of England which is in force in India by virtue of Article 372 of the Constitution of India. Besides, a Civil Suit for Damages, victims of injury because of negligence or deficiency in service can also take shelter under the Consumer Protection Act, 1986. The Consumer Protection Act was enacted with an object to protect the interest of consumers and for effective resolution of consumer disputes. Unfortunately, the remedy is extremely slow and can take number of years before an Original Complaint seeking damages is decided finally and effectively. Moreover, the litigant may have to travel through three layers of adjudicatory machineries under the Consumer Protection Act making the task even more difficult for a Foreign National not based in India.

B. DELAY IN DISPOSAL OF TORT CLAIMS AND IN PROVIDING ADEQUATE DAMAGES.

A massive backlog and pendency of cases is a major problem faced by Indian judicial system. There is no specific time frame within which a Civil Suit for damages will be disposed of and adequate damages/compensation be granted. The situation is especially difficult for a Foreign national to prosecute a Suit for Damages in India and wait endlessly before damages are ordered. The Cases of Bhopal Gas Tragedy and Uphaar Cinema Fire are classic examples to highlight the problems of delay in rendering justice and ordering adequate compensation/damages. In absence of a codified Tort statute, the issue of delay and meagre compensation/damages would continue to haunt India's judicial system.

C. QUANTUM OF DAMAGES AWARDED IN 'INJURY CASES' DIFFER IN INDIA AND UNITED STATES.

A suit for damages before a Civil Court in India would consume number of years before any damages are ordered and quantum of damages if ordered would also differ from the amount that is likely to be granted by the United State District Court. There is substantial difference in Tort jurisprudence of United States and India.

D. CONTINGENCY FEES NOT ALLOWED IN INDIA

Indian Law does not allow charging of contingency fees. India does not allow any kind of contingent fees contract. The Bar Council of India Rules state in Part VI, Chapter II, Section II, Rule 20, that: “An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.”

E. HARDSHIP AND INCONVENIENCE OF PARTIES.

If the motion to dismiss the complaint of the Plaintiff is allowed on the ground of the United States District Court being a Forum Non-Conveniens, it will cause undue hardship and inconvenience to the Plaintiff in prosecuting the claim for damages in India before the Civil Court. The burden of proof lies on the Defendants to show that the proceedings in the United State District Court are 'oppressive or vexatious' and not in interest of justice. Majority of Indian judicial precedents point to a settled trend of respecting the jurisdiction of a Foreign Court to adjudicate proceedings before it even if the Court of natural jurisdiction is available for prosecuting a remedy. Merely because the injury was inflicted on the Plaintiff in India would be no ground to hold that the United States District Court is a Forum Non-Conveniens. In fact, the convenience of the parties is of paramount importance in deciding whether a forum of choice is Forum Conveniens or Non-Conveniens. In the present case, both the Plaintiffs and Defendants are based in the United States and therefore, it would be unfair and not in interest of justice to dismiss the present civil action on the ground of Forum Non-Conveniens and direct the Plaintiffs to prosecute a Civil Suit in India to recover damages for the injury sustained by them.

F. FOREIGN COURTS ACCEPTED AS FORUM CONVENIENS IN INDIA.

The Supreme Court of India has held that even if a Foreign Court has no nexus with the parties or the subject-matter or is not a natural forum, the same are not valid reasons to hold that a Foreign Court is a Forum Non-Conveniens and to grant an anti-suit injunction in restraint of foreign proceedings. Proceedings in Foreign Court are not considered oppressive or vexatious unless serious prejudice or injustice is shown and such Foreign proceedings are de hors the balance of convenience of the parties. (2003) 4 Supreme Court Cases 341. Moreover, the Courts in India like in England are governed by the principles of comity and the Court will exercise the power of anti-suit injunction terming the Foreign Court as a Forum Non-Conveniens very sparingly because such an injunction would interfere in the exercise of jurisdiction by a Foreign Court.

CONCLUSION

The doctrine of Forum Non-Conveniens is usually invoked to oust and avoid jurisdiction of a Court adjudicating the dispute on several grounds such as convenience of the parties, cause of action arising in different jurisdiction etc. However, a Foreign Court may invoke the doctrine of Forum Non-Conveniens to dismiss a case only if another Court, in its opinion is considered a more convenient forum to adjudicate the case. A Court would consider several factors such as the place where the cause of action arose, where the witnesses or the parties reside, the efficacy and effectiveness of the applicable law to adjudicate the dispute etc.

As far the afore-mentioned case of Commercial Airline Pilot is concerned, based on settled principles and judicial decisions, the Civil Action cannot be dismissed on the ground of Forum Non-Conveniens only on the ground that accident took place in India. Also, per se the proceedings before the Court in United States can neither be termed oppressive or vexatious. It is also in interest of justice and for an effective recovery of damages, that the proceedings before the Court in United States is not dismissed on the ground of Forum Non-Conveniens.

It can be concluded that in view of the discussion above, the Courts in India; whether a Civil Court or a Consumer Forum, are not an adequate and effective alternate Forum to redress the claims arising out of torts in the facts of the case referred.

Author is an Advocate, Supreme Court of India. Views Are Personal.