On 31 December 2020 the Brexit transition period ended and the Brussels Regulations fell away, meaning UK residents are no longer able to rely upon the regulations to establishjurisdiction in the UK courts for personal injury and other losses following an accident in the EU. UK residents now have to fall back on the common law position, guidance for which is set out by the Supreme Court in Brownlie v Four Seasons Holdings [2017].DWF recently represented Allianz France in the case of Alvi v Allianz [2024], where a party resident in England issued proceedings there in relation to an accident which occurred in France.
Facts
A road traffic accident occurred in France on 17th May 2019, where the Claimant alleged that a French vehicle insured by Allianz changed lanes and collided with his vehicle. The Claimant sustained a six-week whiplash injury and had his car repaired at a cost of £11,000.
It was agreed that by virtue of Rome II Regulation 864 of 2007, which has become retained law since Brexit, that the applicable law was French.
The claim was within the fast-track and liability was in issue. Additionally, as no accident report form had been completed and the police had not attended, the Claimant was required under French law to prove that the French driver was involved in the collision.
First instance
The Claimant issued proceedings in England in May 2022 which were served on DWF in September 2022. In order to be able to bring proceedings in this jurisdiction after 31 December 2020, the Claimant had to show that he had a good arguable case that his claim fell within one of the tort gateways, that the claim had a reasonable chance of success as per Brownlie, and that England and Wales was the most appropriate forum.
DWF acknowledged service disputing jurisdiction and the application was heard at Luton County Court in April 2023. We argued that the Claimant suffered from his injury for a short time and that the vehicle repairs were not damage sustained in this jurisdiction. Limitation had not expired under French law, so there would be no unfair windfall for the Defendant, and there were particular issues in this claim with the Claimant's evidence. Overall, the French courts would be best placed to apply French legal principles, which would avoid the need for the parties to obtain reports from French law experts and medico-legal experts.
The Claimant argued that there was no difference between the damage caused to the Claimant's vehicle and the cost of making it good; as such the repair costs were sustained in this jurisdiction. They argued that French law recognised both pecuniary and non-pecuniary damages, allowing assessment of quantum here.
It was held that the vehicle being repaired in England did not mean that the damage was sustained here although as the Claimant had suffered from personal injury there was an arguable case that he had sustained damage flowing from the injury in England. The judge felt satisfied that the Claimant's case had a real prospect of success. The final hurdle was whether England and Wales was the most appropriate forum.
That the tort occurred in France was the starting point. That the Claimant was domiciled in England and had suffered with ongoing injury whilst in England were relevant factors. The fact that the bulk of the damage was sustained in France with no further ongoing losses in England all pointed to France. The judge held that the Claimant's arguments did not outweigh the fact that France was the location of the tort and French law applied. On that basis, France was the most appropriate jurisdiction.
The Appeal
- The Claimant appealed stating that the Judge had given too much weight to liability as the Defendant driver had died and there was no formal liability defence.
- That insufficient weight had been given to the fact that the only witness was English.
- The Judge had been incorrect in finding that all the vehicle damage had been sustained in France.
- The Defendant argued that the issue was not whether the court would have reached a different decision from the original judge, but whether the Judge had made an error in law.
- The costs of dealing with the claim in the English Courts, with each party requiring evidence from a French legal expert and a French medical expert, would be disproportionate.
- Questions of causation, standard of proof and other evidential issues should be dealt with under French law.
Decision
The judge assessed all the factors and what weight to give to each of them. He decided the Claimant had suffered some injury in this jurisdiction, but this was not sufficient. The judge at first instance had the relevant test in mind when coming to his decision. The original decision was correct and was upheld.
Subsequent case law
More recently, the Judgment in the High Court case of Graham v Fidelidade – Companhia de Seguros [2024]was handed down.
How the courts may approach jurisdiction where a UK domiciled Claimant sustains catastrophic and life-changing injuries in the EU has now been further clarified in the case of Graham. The Claimant was on holiday in Portugal when a Portuguese vehicle collided with him. The Claimant sustained severe life changing injuries. The Defendant made an application disputing jurisdiction after permission had been granted to serve English proceedings on the Portuguese insurer.
The parties agreed that there were serious issues to be tried (the merits test), but the gateway and forum conveniens tests were disputed by the Defendant. The burden of satisfying the court that the tests had been met remained on the Claimant.
The Claimant relied on the fact that his claim was made in tort in order to get through the gateway. The Defendant disputed this as the Defendant insurer had not committed any tort against the Claimant, although it was agreed that the Claimant's claim would be tortiousunder Portuguese law. The judge held the Claimant had got through the tort gateway stating the claim against the Defendant insurer had to be tortious as whilst a contract existed between the insurer and the Defendant driver, no contract existed between the Claimant and the insurer, the action against the Insurer being an extension of the tortious action committed by their Insured.
In relation to forum conveniens the judge took into account the fact that the Claimant was resident in England, and that the only witnesses would be English. The Claimant would need to give evidence in Portugal by video link, with an interpreter which could lead to poorer quality of evidence and could hamper the Claimant in presenting his claim. All court documents and approximately seven experts would be required to provide reports and give evidence, all of which would need to be translated into Portuguese with the attached cost.
Whilst Portuguese law would apply, the evidence suggested that the way Portuguese law calculated pecuniary losses was similar to the calculations made under English law; the Judge accepted the argument that the main issues would be factual rather than legal. Whilst the starting point was the locus of the tort (Portugal), the Judge considered that the other factors outweighed the place where the tort was committed. The Judge therefore held that the natural forum was England.
On the horizon
Conclusion – what does this mean for insurers?
Whilst there can be no doubt that each and every case will have different facts and features, a trend is forming where the Courts of England and Wales are declining jurisdiction in relation to lower value claims in proceedings where the tortious act occurred overseas. In the first case, the Claimant was able to get through the tort gateway, but that was not sufficient to displace the location of the accident as the appropriate forum or jurisdiction in which to bring his claim (forum conveniens). In the case of Moore v Macif [2022] 10WLUK621, which was pleaded at up to £100,000, the Court declined jurisdiction.
The recent judgment in the case of Graham seems to suggest that in large loss and catastrophic cases, the courts are more likely to accept that the claim can proceed in the UK. Of importance is the need for the Claimant's solicitor to investigate that any judgment obtained can be enforced in the country where the overseas insurer is based.
What might change this position is the UK's accession to the Lugano Convention which effectively reflects the previous position afforded under the Brussels Regulations. EFTA member states supported the UK's application to join this Convention in 2020 but the EU declined. It will be interesting to see whether this application will be revisited by the new UK Government and whether the EU's appetite to allow the UK to accede to the Convention has changed since 2020. Most practitioners, however, do not think this likely.
