In the recent case of Graham v Fidelidade [2024] EWHC 2010 (KB), Mr Justice Hill DBE provides useful guidance on the court’s approach to adjudicating on an accident in a foreign jurisdiction. Complex Injury Partner, Jamie McCabe, analyses the case and the factors considered.
Background
The claimant was a 58-year-old British national who was pushing his motorcycle across a marked crossing in Portugal when he was struck by a VW Passat and thrown 20 metres along the road. He suffered serious injuries to his left leg which ultimately had to be amputated.
At the time of the accident the claimant was on a break from work and had been travelling around Europe in a motor home with his partner for eight years. He was renting out his property in England but returned home after the accident. He had significant ongoing prosthetic and care needs and was attending Dorset Orthopaedic clinic.
Procedural matters
The judge was required to address two overarching issues on an appeal by the defendant from orders of Master McCloud:
- Should the time for service of the Claim Form have been extended.
- Did the courts in England and Wales have jurisdiction to hear and determine the matter.
On the first issue the judge concluded that Master McCloud had correctly extended the time for service of the Claim Form on two occasions despite the applications for extension having been made by correspondence without the usual application notices. The judge found that the Master did have CPR Part 3 powers available to her and was entitled to use them to waive the procedural requirements to provide evidence verified by a statement of truth. The judge also felt that the reasons for granting the extensions of time were good enough when taken together with the lack of issue over the limitation period and prejudice to the defendant.
The jurisdiction issue
In terms of the second issue, the judge identified that in order to obtain permission the claimant must prove that:
- There was a serious issue to be tried on the merits i.e. a substantial question of fact or law or both (‘the merits test’);
- There was a good arguable case that the claim fell within one of the classes in which permission to serve out of the jurisdiction may be given (‘the gateway test’) and;
- Whether England and Wales was clearly or distinctly the appropriate forum for the trial of the dispute and that in all the circumstances the court ought to exercise discretion to permit service of the proceedings out of the jurisdiction.
Although the defendant brought the application to set aside the order of Master McCloud, the legal burden of satisfying the court on the above elements remained with the claimant.
The judge provided reasons as to why the gateway test was satisfied and then dealt with the question of ‘forum coveniens’.
The relevant principles from previous authorities were identified as follows:
- Is it necessary to identify the forum in which the case can be suitably tried for the interest of all parties and the aims of justice?
- In service out cases, the burden of proof is on the claimant not just to show that England and Wales is the appropriate forum for the trial of the claim, but that it is clearly so.
- In determining which of the competing fora is the appropriate forum, the court will look to see what factors point in the direction of this and the other forum.
- The “natural forum” is “that with which the claim has the most real and substantial connection”. The court must first look for “connecting factors” which will include “not only factors affecting convenience or expense (such as availability of witnesses)”, but also “other factors such as the law governing the relevant transaction and the places where the parties respectively reside or carry on business”.
- As a general rule, the court will not be deterred from refusing permission to serve out simply because the claimant will be deprived of a “legitimate personal or juridicial advantage”, such as damages on a higher scale or a more generous disclosure regime, unless it is shown through “cogent evidence” that there is a risk that “substantial justice will not be done in the natural forum”.
It was said that comity required that the court be extremely cautious before deciding that there is a risk that justice will not be done in the foreign country by the foreign court and that is why cogent evidence is required.
Mr Justice Hill concluded here that the case should continue in England because:
- Liability was admitted and therefore the evidence to be led related to quantum. Although it would have been possible to have the claimant attend trial by video link he would need an interpreter at all times and could not speak Portuguese. There was expert evidence that Portuguese language must be used at all times in the court. The judge concluded that this would potentially lead to poorer quality evidence from the claimant and hamper his ability to present his claim.
- The claimant intended to rely upon factual witnesses all based in England and the defendant did not intend to rely on any factual witnesses. The judge felt it would be more convenient for them to give their evidence in England.
- If the claim was tried in Portugal all the substantive documentation including medical records would need to be translated from English to Portuguese.
- The defendant argued that Portuguese law should apply because there were relevant differences in applicable legal principles such as the use of Disability Tables, the doctrine of “adequate causality” and the role of the criterion of “equity/fairness”. However, the judge accepted the claimant’s submission that the key issues in the litigation would be factual not legal. He felt that the differences between the legal systems were not as stark as the defendant contended. For example, the calculation of pecuniary losses in Portuguese Law was very similar to English Law. The judge noted the principle that if all other things were equal then the case should normally be tried in the country whose law applies. However, he felt strongly that in this situation “all other things were not equal”.
- On the issue of where the parties resided or carried on their business, the claimant had been travelling around Europe and had lived in Portugal over several winters. He had a Portuguese tax number but had decided to return to England for a range of reasons including issues over money and his partner’s health. After the accident he moved back to England and had no plans to return to Portugal. The defendant was a Portuguese insurer, domiciled in Portugal. Overall, the judge felt that this factor militated slightly in favour of a trial in England.
- In relation to the place of commission of the tort, this accident took place in Portugal. Although the defendant argued that this was the relevant starting point the judge felt that this situation was “over simplistic” and dwarfed by the other countervailing factors.
- The defendant argued that there might be difficulties in enforcing an English judgment in Portugal. However, the judge concluded that this was not the case having regard to the expert evidence that was led.
Considering all factors, the judge concluded that the natural forum was England and he was not required to go on to consider whether there was a risk that substantial injustice would not be done in the natural forum.
However, the judge indicated that, had he been required to do so, he would have accepted the evidence of the claimant that Portuguese law and procedure with respect to interim payments meant that the claimant was unlikely to secure the prosthetic assistance he needed during the currency of the claim. Therefore, having regard to the rehabilitation needs of the claimant, he would have concluded that there was a risk of substantial injustice had the case proceeded in Portugal.
Practice points
The case is a helpful summary of the principles to be applied in deciding whether an accident occurring in a foreign jurisdiction should be adjudicated on in England and Wales. Inevitably the decision will be fact specific according to the principles identified above.
The decision may have been more finely balanced if there was a dispute on liability including a need to call factual or expert witnesses who resided in Portugal. In a case where the only issue is quantum there will often be strong grounds to contend that the matter should be dealt with in England and Wales. This is especially so where there is a substantial amount of documentation in English, factual and expert witnesses residing in England and a foreign jurisdiction that does not afford the same level of redress to the claimant e.g. ability to apply for interim payments or adequate disclosure.
