Although forum shopping may frequently be an international exercise between competing jurisdictions, often there are purely domestic UK cases where both the Scottish and English courts have concurrent jurisdiction. Scotland and England are of course separate legal jurisdictions, something which is forgotten by many lawyers based outside of the UK, but it is an important point to bear in mind.

Two recent cases in the English Court of Appeal have highlighted the need for advisors to carefully consider whether Scotland or England is the most convenient forum in the UK. Failing to do so can result in the Court unilaterally dismissing an action on the basis of the common law principle of forum non conveniens (FNC), which can apply to any intra UK action.

FNC is a common law principle applied by the courts to allocate disputes to the most appropriate forum for them to be conducted, taking into account the interests of the parties and the ends of justice. It is, in broad terms, of no relevance to cases where the competing jurisdictions are EU member states, as FNC is excluded in terms of the Brussels Regulation (Regulation 1215/2012). However it remains alive and kicking so far as courts within the UK are concerned. This has been demonstrated in two recent English cases which went to the Court of Appeal, Cook v Virgin Media Ltd; and McNeil v Tesco plc (2015) EWCA CIV 128, which considered if FNC can apply in the domestic context of the UK and in particular between the Scottish and English courts.

These cases demonstrate that a misguided forum shopping exercise can have adverse consequences where parties have a choice between the Scottish or English courts, as one or the other may be judged as not being the more appropriate or convenient forum in the particular circumstances concerned. Although these cases were personal injury cases, the principles equally apply to any disputes where there are grounds to raise action in Scotland and/or England.

For example, in intellectual property (IP) cases in particular, often both the English and Scottish courts have concurrent jurisdiction to deal with the claim. This is because the main grounds of jurisdiction are that a party can be sued in the courts of the country where it is based/domiciled or where it is committing or threatening to commit the allegedly infringing acts. Often those acts are UK wide, thus in principle it is often possible to choose to raise action in Scotland in the Court of Session, or in England in the High Court or IPEC. These cases also establish that even if the parties submit to the chosen court's jurisdiction that may not be the end of the story as the court is able to override this and decide itself to dismiss a case.

The Civil Jurisdiction & Judgements Act 1982 allocates jurisdiction to the UK's three separate legal systems: England & Wales, Scotland and Northern Ireland. In terms of purely UK cases, Section 49 of the Act provides that nothing in it shall prevent any Court from staying or dismissing any proceedings on the grounds of FNC or otherwise.

Two sets of proceedings were brought in the English courts, claiming damages for personal injuries alleged to be sustained in Scotland due to the defender's negligence. The claimants were based in Scotland and the defendants were based in England. The defendants argued that Scotland was the correct court to hear the claims, but they did not actively challenge jurisdiction. Despite this, the court on its own initiative dismissed the cases on the grounds that the proceedings should have been raised in Scotland as it was the more appropriate forum. The matter was appealed to the Court of Appeal by the claimants but the appeal was dismissed.

Importantly, both the first instance and Court of Appeal decisions make it clear that the Court can dismiss actions on its own initiative as it has an overriding duty to actively manage cases and ensure they are dealt with for the convenience of all concerned, including witnesses. These factors relate to convenience, expense, the relevant law applying, and where the parties have their places of business.

Although these were personal injury cases, they are still of significance when there is a choice of jurisdiction within the UK. Forum shopping is common in a number of areas within the UK, and it is therefore important that all practitioners take account of it in advising clients on UK disputes. It is sensible to consider at the outset whether one jurisdiction is clearly the more appropriate forum as this will inform the overall strategy adopted. There is risk in ignoring this or getting it wrong, as it is now clear that a Court can decide the matter of its volition.

The key point is that in any forum shopping exercise between England and Scotland (where there is no international element) even where both are competent jurisdictions, the choice is not an absolute right of the claimant to make. It will always be subject to the FNC qualification. As such, FNC needs to be considered at an early stage as the court may itself raise it and deal with it within its discretion. Potential claimants should take this seriously if they wish to avoid significant costs liability, and an initial blow.