Gateways and Forums: A Reminder From on High

Gateways and Forums: A Reminder From on High

A recent decision in the High Court, Szrek –v- DIV-ING D.O.O. and others [2023] EWHC 219 (KB)) illustrates issues in cross-border litigation ‘post-Brexit’ and the approach of the Courts in England and Wales.

The First Claimant was a Polish national domiciled in England. The other claimants (his parents and sister) were domiciled in Poland.

The First and Third Defendants were Croatian registered companies offering diving excursions. The Second Defendant was their public liability insurer.

In August 2020, the First Claimant attended a centre in Dubrovnik for a dive. It was alleged that equipment was inadequate and the dive was conducted negligently. He lost consciousness and ascended to the surface too quickly and without proper decompression taking place. He suffered a life-changing injury (Type II decompression to his spine).

Proceedings were issued in England post ‘exit day’. The Claimants required the Court’s permission to serve proceedings outside the jurisdiction i.e. in Croatia. That meant:-

  1. Being able to get the claim through one of the ‘gateways’ set out in the Civil Procedure Rules;
  2. Satisfying the Court that the Claimants believed the claim had a reasonable prospect of success; and
  3. Satisfying the Court that England was the proper place in which to bring the claim.

This claim being founded in Tort, the relevant gateway was that set out in CPR Practice Direction 6B 3.1(9) i.e. :

“Claims in tort

(9) A claim is made in tort where –

(a)  damage was sustained, or will be sustained, within the jurisdiction;

(b)  damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction; or

(c)  the claim is governed by the law of England and Wales.”

The First Claimant adduced evidence that he suffered and continued to suffer damage following return to England. The Court referred to principles established by the Supreme Court (in FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45). The First Claimant’s pain, suffering and physical injury were suffered sequentially, first in Croatia, then in England. Thus damage was sustained in England and the claim passed through the ‘Tort gateway’.

The Court was satisfied that the Particulars disclosed a claim with reasonable prospects of success.

The Court then exercised its discretion to accept jurisdiction. The Claimants had advanced a number of factors in order to establish that England was the proper place, namely:

  1. The First Claimant resided in England.
  2. He had and would continue to suffer consequences of the accident in England.
  3. International diving standards would govern liability.
  4. Quantum evidence would be required from English experts.
  5. Future losses would be for English experts.
  6. Experts being instructed in England would avoid the First Claimant and experts having to travel to Croatia.
  7. The logistical difficulties for the First Claimant in travelling to Croatia in light of his injuries.
  8. The inconvenience to the Defendants in responding to proceedings in England would be far less than to the First Claimant if proceedings were in Croatia.

The Court referred to guidance from Lord Goff in Spilianda Maritime Corp –v- Cansulex Ltd (The Spilianda) [1987] A.C. 460, HL. The burden was on the Claimants to show that England was clearly the appropriate forum. The Court had to consider where the claim could be most suitably tried for the interests of all parties and the ends of justice.

The Court emphasised that to a significant extent the First Claimant’s losses had been experienced in England, liability would likely be assessed by reference to international standards and the very considerable practical advantages of the matter being determined in England.

Permission to serve out of the jurisdiction was therefore granted.

It is notable that whilst the Second Defendant had filed a document indicating it contested English jurisdiction and disputed liability, it did not attend the hearing of the Claimants’ application. The other Defendants had failed to respond to any correspondence. The First Claimant’s family were joined in as claimants in their own right, as it was said it was not possible for the First Claimant to pursue damages (for care and assistance) on their behalf in Croatia.

All cases are fact sensitive. When faced with potential cross-border claims it is crucial that defendants seek legal advice at an early stage in order to secure the best outcomes.

Mike Farrell
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