31 December 2023 will mark three years since the UK left the European Union. In those untroubled pre-Brexit days, UK victims injured in an accident in the EU had a guaranteed right to bring a claim in their home courts against a foreign insurer thanks to the Brussels Recast Regulation (EU) No 1215/2012 and the case of FBTO Schadeverzekeringen NV v Jack Odenbreit, C463/06.

However, the expiry of the Brexit transition period on 31 December 2020 ended that right and the Brussels Recast Regulation disappeared. The UK Government attempted to sign up to the Lugano Convention, which contains mostly similar rules to the Brussels Recast Regulation. However, to date, all attempts have been unsuccessful. UK victims injured abroad must now look to the common law rules on jurisdiction.

The Brownlie case

Coincidentally, the English courts were already considering the common law rules on jurisdiction in the tragic case of Brownlie. Lady Brownlie brought a claim in England following the deaths of her husband, Sir Ian Brownlie, and daughter in a road traffic collision in Egypt in 2010 in which she also suffered significant personal injury. This case was heard in the Supreme Court on two occasions. Brownlie I concerned service of the claim form. In Brownlie II the Supreme Court considered the tort gateway. The court ruled that in order for a claim to pass through the tort gateway under CPR 6B PD3.1(9)(a) some significant damage, whether direct or indirect, must have been sustained within the jurisdiction of England and Wales. The court also found that the second limb of the test, namely that there was a serious issue to be tried on the merits, was satisfied.

The ramifications of Brownlie II had the potential to be huge. It appeared that as long as an English victim continued to suffer personal injury or financial loss in England following a fatal accident of a loved one abroad, the English courts would grant jurisdiction to deal with the claim. However, the judgment in Brownlie II does not appear to be the decision which UK claimant lawyers were eager for. Recent case law examining the notion of forum non conveniens and the discretionary exercise of jurisdiction rules point to uncertain times ahead.

Moore & Anor v MACIF

In Moore and Moore v MACIF [2022] 10 WLUK 621 the French motor insurer, MACIF, successfully argued that England was not the appropriate forum for a claim arising from a road traffic collision in France.

The claimants, Mr and Mrs M, were injured in a road traffic collision in October 2018 while on a caravanning holiday in France. They brought two separate claims in England against MACIF after the end of the Brexit transition period. Mr M brought a claim for £25,000 and Mrs M for £100,000. They applied to serve out of jurisdiction and served proceedings on MACIF in France.

MACIF instructed solicitors in England to dispute English jurisdiction. HHJ Hellman, sitting at the Mayor’s and City of London Court, referred to the case of Spiliada Maritime Corpo 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. The court 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 considered the Brownlie II decision and the tension which exists between satisfying the ‘tort gateway’ and the principle of forum conveniens, as highlighted by Lord Lloyd-Jones, ‘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;
• 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. It was 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 only one of a number of factors in Brownlie.

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 & Anor

In the meantime, in a contrasting decision underlying the uncertainty which is a natural consequence of judicial discretion, a French claimant successfully established English jurisdiction in the case of Klifa v Slater & Anor [2022] EWHC 427 (QB) (28 February 2022 (1130am)) (bailii.org).

The claimant, a French lady domiciled and resident in France, was injured in a skiing collision in France in January 2018. The accident was caused by the first defendant, a British national domiciled in England, insured by the second defendant, an insurance company, with its registered office in England.

The claimant sent a letter of claim under the pre-action protocol for personal injury claims on 20 April 2018 and the parties followed the protocol for over two years.

The claimant issued proceedings in the High Court in January 2021 (after the expiry of the Brexit transition period) and served them in England, on English nominated solicitors. On receipt of the proceedings, the defendants applied to dispute jurisdiction. As proceedings had been served in the English jurisdiction, it was the responsibility of the defendants to satisfy the court that it was ‘distinctly’ or ‘clearly’ more appropriate for the case to be heard in France. This is in contrast with the case of Moore v MACIF where the burden lay with the claimants.

Master Dagnall, sitting in the High Court, 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.

Master Dagnall concluded 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’. The factors pointing to England being the appropriate forum were:

• The location and language of the defendants;
• The fact that enforcement would take place in England; and
• 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.

When considering the second stage of the test, ‘whether justice require[d], and including because of the existence of legitimate personal or judicial 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’, Master Dagnall noted:

• The claim had progressed in accordance with the English pre-action protocol and substantial costs had been built legitimately during that period and would be wasted;
• Forum non conveniens is a matter of discretion;
• Enforcement would occur in England;
• 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).

The defendants’ application was dismissed and the matter proceeded in the English High Court.  

Analysis

The clarity of the Brussels Recast Regulation is no longer and parties involved in accidents abroad must now look to the common law rules on jurisdiction. The inherent discretion of the English courts to grant or refuse jurisdiction only serves to add to the uncertainty.

When it comes to forum conveniens much will depend on the practical evidence compiled by the parties and, as the above cases demonstrate, robust witness evidence is key. In ‘service in’ cases the burden of proof is on the defendant to show that a different forum is ‘clearly or distinctly more appropriate’ while in ‘service out’ cases the burden is on the claimant. At the end of the day, each case will stand or fall on its own facts.

Belinda Normandale of the Weightmans cross border team acted on behalf of MACIF in the case of Moore v MACIF.

Maud Lepez of the Weightmans cross border team acted on behalf Mrs Klifa in the case of Klifa v Slater & Anor.