In or out? The new regime of uncertainty in cross-border accident claims

Just over two years ago in the halcyon pre-Brexit days, UK victims injured in an accident in the European Union had an inalienable right to pursue their claim in the courts of their own domicile against a foreign insurer thanks to the Brussels Recast Regulation (EU) No 1215/2012 and the ECJ’s interpretation of that regulation in the case of Jack Odenbreit (FBTO Schadeverzekeringen NV v Jack Odenbreit, C463/06). The compulsory rules on jurisdiction enshrined in the Brussels Recast sadly disappeared for British victims on 31 December 2020, being the end of the Brexit transition period, after which date the UK reverted to its own common law rules.

An effort was made by the British government to sign up to the Lugano Convention (which contains largely similar rules to the Brussels Recast Regulation), but despite the agreement of the EFTA countries, this request was rebuffed by the EU Commission which felt that the Convention should not be open to third countries without a special link to the internal market of the EU. This option has not been definitively ruled out, but it is difficult to imagine that any progress could be expected in the near future.

The Brownlie case

The common law rules on jurisdiction were already, coincidentally, being pored over in detail by the UK courts in the long-running saga of Lady Brownlie’s claim arising from the tragic death of her husband Sir Ian Brownlie in a road traffic accident in Egypt. Sir Ian and his daughter were both killed and Lady Brownlie suffered significant injuries in the accident in 2010. She pursued claims for damages, in contract and in tort, for personal injuries and also dependency for wrongful death. She started her claim in December 2012 and the defendant contested jurisdiction, resulting in a Supreme Court decision (Brownlie (I)) in which service of the claim form was set aside, because it became apparent that the hotel was operated by a different company to the one which had been named on the claim form.

Lady Brownlie was given permission to apply to amend her claim form and she succeeded with that application and was also given permission to serve the claim form outside the jurisdiction in Egypt. FS Cairo’s appeal to the Court of Appeal was dismissed by a majority and permission was then given for a second visit to the Supreme Court and its decision in Brownlie II was handed down on 20 October 2021.

In judgment II, the Supreme Court Justices confirmed that in order for a claim to pass through the tort gateway under CPR 6B PD3.1(9)(a) it is necessary only for some significant damage, whether direct or indirect, to have been sustained within the jurisdiction of England and Wales. Furthermore, the second limb of the test namely that there was a serious issue to be tried on the merits was also satisfied without the need for the provision of detailed pleadings or evidence as to the terms of Egyptian law, being the law applicable to the determination of the case.

This decision appeared to open the possibility that, in cases where the effects of injuries or the financial consequences of a death sustained in an accident abroad continued to be felt within the UK after the victim’s return, the UK courts could still have jurisdiction to deal with claims arising from such an accident. Whether any judgment obtained before the courts of England and Wales in these circumstances would be recognised by a foreign court may have been overlooked by practitioners eager to maintain the status quo ante and the familiar and helpful rules contained in the Brussels Recast Regulation.

That said the decision in Brownlie II does not seem to have been the panacea that claimant lawyers in the UK were hoping for and the notion of forum non conveniens and the discretionary exercise of jurisdiction rules which that entails has led to decisions which may prolong the uncertainty.

Moore and Moore v MACIF

In Moore and Moore v MACIF before His Honour Judge Hellman in the Mayor’s and City of London County Court on 25 October 2022, Howard Palmer KC  instructed by Pierre Thomas Law appeared for the defendant and successfully argued that the Mayors and City of London Court was not the appropriate forum for a claim arising from a road traffic accident in France The claimants, Mr and Mrs M, a husband and wife domiciled in England, were injured in a road traffic collision whilst on holiday in France in October 2018. They brought a claim against the French motor insurer, MACIF. Liability for the accident was not in dispute. The claimants issued separate court proceedings in England after the expiry of the transition period for the UK’s withdrawal from the European Union. Mr M issued a claim limited to £25,000 on 8 July 2021. Mrs M issued a claim initially limited to £50,000, later amended to £100,000, on 8 October 2021. Applications were made by both claimants to serve out of jurisdiction.

The proceedings were served on MACIF in France. MACIF then instructed solicitors to dispute the court’s jurisdiction and to request a stay of the English proceedings. HHJ Hellman referred to Spiliada Maritime Corp v Cansulex Ltd 1987 AC 460 and noted that as these were ‘service out’ claims, the burden of proof was on the claimants to not only show that England and Wales was the appropriate forum, but that it was clearly so. HHJ Hellman examined the arguments put forward by the claimants in favour of the English forum, as well as the arguments presented by the defendant in favour of the French forum.

Both parties also considered the Brownlie II decision. The tension which existed between the satisfying the ‘tort gateway’ and the principle of forum conveniens was highlighted, as noted by Lord Lloyd-Jones at paragraph 82, ‘The wider reading of damage within the meaning of the tort gateway, which I favour, does not confer on all claimants in personal injury cases a right to bring proceedings in the jurisdiction of their residence. The courts will be astute in ascertaining whether the dispute has its closest connection with this jurisdiction and the principle of forum non conveniens will provide a robust and effective mechanism for ensuring that claims which do not have their closest connection with this jurisdiction will not be accepted here.’

Weighing up the arguments, HHJ Hellman was not satisfied that England and Wales was clearly the more appropriate forum, for the following reasons:

• The French court is best placed to apply French law and procedure. French law applies because the accident that occurred in France in accordance with the Rome II Regulation which has now passed into UK law.
• The claimants were not required to attend proceedings in France.
• The English proceedings were not far advanced.
• There was no evidence that instructing French lawyers would present difficulties for the claimants. HHJ Hellman anticipated that this would be done by lawyers in England rather than in France.
• Although the claimants placed great reliance on the fact that most of the damage was sustained in England, that was one of a number of factors in Brownlie, not the only factor.

Having found that England and Wales was not the appropriate forum, the defendant’s applications were allowed and the claimants’ claims were dismissed.

Klifa v Slater and Anor

In the meantime, in a contrasting decision underlining the uncertainty which is a natural consequence of a discretion, this time acting for the claimant, Pierre Thomas Law succeeded in establishing jurisdiction of the English court for their French client Mrs Klifa. On 28 February 2022, Master Dagnall handed down his judgment in Klifa v Slater & Anor [2022] EWHC 427 (QB) (28 February 2022 (1130am)) (bailii.org).

The claimant, a French lady domiciled and resident in France, had been injured in a skiing collision in France on 27 January 2018, caused by the first defendant, a British national domiciled and resident in England and Wales, insured with the second defendant, an insurance company, having its registered office also within the jurisdiction of England and Wales.

A letter of claim under the pre-action protocol for personal injury claims was sent on 20 April 2018 and the parties followed the protocol for over 2.5 years.

Proceedings were issued in the High Court on 14 January 2021, i.e., after the expiry of the transition period for the UK’s withdrawal from the European Union. Jurisdiction of the English court existed ‘as of right’, under CPR Part 6 and Practice Direction 6B, in so far as the claim form was served on both defendants in the jurisdiction (and in fact on their solicitors who had instructions to accept service of proceedings).

Nevertheless, the defendants indicated their intention to dispute the court’s jurisdiction and filed an application notice on 12 February 2021, which was listed for a hearing before Master Dagnall on 5 November 2021. Given that proceedings in this case were served in the jurisdiction of England and Wales it was the responsibility of the defendant to satisfy the court that it was clearly more appropriate for the case to be heard in France. In contrast with the Moore case, where in a ‘service out’ case the responsibility lay with the claimant.

The defendants invited the Master to decide that another forum (i.e., France) was more appropriate than England and Wales and to grant a stay of proceedings. In his judgment, Master Dagnall referred to the judgment of Lord Goff in Spiliada Maritime Corporation v Cansulex; he also referred to VTB Capital v Nutritek International [2013] 2 AC 337; International Credit v Adham [1999] I.L.Pr 302 and Wall v Mutuelle de Poitiers [2014] 1 WLR 4263 (Court of Appeal). At paragraph 18 of his judgment, he set out that:

i) ‘The defendant has to satisfy the court that France is the "distinctly" or "clearly" more appropriate forum in order for the court to potentially impose a stay;

ii) This will involve the court considering the factors pointing in both directions including convenience and expense (including availability of witnesses), the governing law, and the residence and places of business of the parties;

iii) Even if France is the more appropriate forum then a stay may still be refused after considering other "circumstances" being factors relating to the achieving of "the ends of justice" (but also the interests of the parties) and asking (a) whether they mean that the Claimant will not obtain "substantial justice" in France, a test which requires something more than there simply being different approaches to damages or procedure but where the system will still afford a procedural process and substantive outcome which is a reasonable one (even though different from those adopted in this jurisdiction) Or (b) whether they involve some particular factor(s), being a legitimate personal or juridical advantage, such as a limitation advantage or security for costs existing in this forum (and which is recognised by this forum as being "legitimate" and which will generally be so if it is part of the law of this forum), of which justice "requires" (and again a mere difference in approach as to damages or procedure, as long as the other approach is a reasonable one, will not be sufficient to "require") that a claimant (who may have had to have acted reasonably for this to be the case) should not be deprived;

iv) I am not entirely sure whether this is strictly a two-stage test where the Claimant has to fail at both stages (although it is clear that the burden of satisfying the court is on the Claimant with regard to the second stage) for the stay to be granted rather than a two-stage analysis with an holistic consideration of all the matters together. However, that is unlikely to (and in the circumstances of this case, I hold does not) result in a different outcome in practice, and I have come to the same eventual conclusion having applied both approaches separately.’

Master Dagnall then examined the relevant factors put forward by the defendants in favour of the French forum, as well as the opposite factors presented by the claimant in favour of the English and Welsh forum.

With regard to the appreciation of ‘the most appropriate forum’ (para 39 onwards), he considered the following factors:

• The place of commission of the tort;
• The losses being sustained in France;
• The law governing the assessment of quantum being French law;
• The claimant being French and located in France (but able to give evidence in English);
• The medico-legal experts instructed in the case being French and located in France;
• The defendants being located in England, dealing in English and having instructed English solicitors; and
• Enforcement of any judgment would take place in England.

Interestingly, he considered that the fact that a ‘subsequent deterioration claim’ (i.e., an aggravation claim under French law) may be open was not a relevant factor, as such claim would ‘(in whichever forum) be entirely separate’ from the current proceedings.

Master Dagnall went on to conclude that, although the defendants had shown that France was ‘the most appropriate forum’ they had failed to show that it ‘was "distinctly" or "clearly" the more appropriate forum, which is a higher test for them to satisfy’, taking into account the factors pointing to England and Wales being the appropriate forum: (i) the actual location and language of the defendants, (ii) the fact that enforcement would take place in England, and (iii) the presence of the parties’ lawyers in England and the fact that they followed the pre-action protocol for a substantial period, and noting that the courts of England and Wales were perfectly capable of dealing with a French law quantum matter.

Furthermore, and in any event, Master Dagnall considered the second stage of the test (i.e., if France had been distinctly or clearly the more appropriate forum), that is ‘whether justice require[d], and including because of the existence of legitimate personal or juridical advantages, but in the context of the interests of all of the parties, a stay to be refused and matter to proceed in this forum’.

The matters he considered essential at this stage were:

• The underlying claim was progressed in accordance with the English and Welsh pre-action protocol and substantial costs had been built legitimately during that period and would be wasted;
• Forum non conveniens (unlike the law of limitation) is a matter of discretion;
• The fact that enforcement will occur in this forum is a ‘legitimate procedural or juridical advantage’ for the claimant;
• The fact that London was probably more convenient to the claimant than Albertville (which was the competent local court in France, but was not geographically closer to the claimant than London).

He also pointed out that the defendants’ approach was ‘tactical’ in the sense that there was no advantage to them to proceed in a foreign and geographically far away court (save perhaps some costs saving). Before concluding that: ‘this is a situation where justice does not require the matter, properly commenced against and served upon these English defendants, to be heard in France but rather the opposite essentially for the reasons given above’. The defendant’s application was therefore dismissed and the matter will proceed to the assessment of damages (according to French law principles) in the High Court.

Analysis

The Courts of England and Wales have inherent discretionary jurisdiction to stay proceedings in relation to accidents which occurred abroad. A stay will be granted where an alternative forum is ‘clearly or distinctly more appropriate’ than that of England and Wales. In ‘service in’ cases the burden is on the defendant. In ‘service out’ cases the burden is on the claimant.

Brownlie II appeared at first glance to plug the jurisdictional gap left by Brexit and the loss of the Brussels regime, but closer inspection merely underlines that issues of jurisdiction are now beset by the uncertainty which goes hand in hand with the judicial exercise of discretion, a scenario which was deliberately avoided by the Brussels Regime.

It is apparent that practical evidence is key in forum non conveniens challenges. Witness evidence covering many issues was filed by the parties in both these recent cases. It is abundantly clear that parties must ensure that the court has adequate evidence in order to make a finding and if the burden of proof lies with you, whether acting for the claimant or defendant, you need to ensure that the evidence points to your suggested forum being clearly or distinctly more appropriate. Arguably, along with other benefits of EU membership, victims in England and Wales appear to have now lost the benefit of certainty in the outcome of jurisdictional challenges in England and Wales, with decisions turning on varied discreet issues of law and procedure.

Simon Ball is a solicitor and practice director, Maud Lepez is a solicitor and advocate director and Belinda Normandale is a senior associate at Pierre Thomas Law
pierrethomaslaw.com