With nearly five years passed since Brexit took place, the courts of England & Wales are continuing to grapple with the new landscape on jurisdiction in claims against defendants based in the European Union, the challenges of serving proceedings overseas, and enforcement of judgments from the English courts. These are issues of paramount importance for serious injury claimants who have sustained their injuries overseas.

In Graham v Fidelidade – Companhia De Seguros SA [2024] EWHC 2010 (KB), the High Court of England & Wales has agreed to hear a claim for damages brought by a claimant who is now an amputee following a road traffic collision in Portugal. International Injury partner Christopher Deacon reviews the case and the potential precedent it sets for injury claimants.

How did Mr Graham sustain his injuries?

Mr John Graham is a British national who was visiting the Algarve region of Portugal in September 2021. As Mr Graham was pushing his motorcycle across a marked pedestrian crossing on a road between Malheiro and Portimão, he was knocked down by the defendant driver who failed to stop at the crossing. Mr Graham was 58 years old at the time of the incident.

Mr Graham sustained severe injuries to his left leg. Doctors attempted to save the leg through vascular grafting, but ultimately Mr Graham needed a transfemoral amputation. He also sustained pelvic, lumbar spine and facial fractures, multiple other injuries and physical and psychological trauma. Mr Graham has been left with significant needs following the collision in Portugal; he has limited mobility and requires lifelong care and assistance.

Mr Graham pursued his claim directly against the insurer of the defendant driver. This is permitted under Portuguese law, which applies in Mr Graham’s claim as the collision occurred in Portugal and the defendant driver was a Portuguese resident. He relied on a statutory right of action under Portuguese law based on the insurance contract issued by the defendant insurer and relating to the vehicle involved in the collision.

The defendant insurer had admitted liability to Mr Graham before he started proceedings in the High Court of England & Wales.

The tort gateway to jurisdiction and claims brought directly against an insurer

An individual who lives in England or Wales and is involved in an accident abroad can bring proceedings in the High Court of England & Wales in certain circumstances. One of the options commonly relied upon in a claim following life-changing injuries is the “tort” gateway to jurisdiction.

The tort gateway requires that damage was sustained or will be sustained in England & Wales. In Brownlie II [2021] UKSC 45, the UK Supreme Court confirmed that suffering the ongoing impact of an accident abroad when returning home to the UK, including ongoing financial loss, is sufficient to satisfy the requirements of the tort gateway even where the original incident giving rise to that damage has occurred overseas.

In Mr Graham’s case, the court had to decide whether a claim brought directly against the motor insurer was a claim “made in tort” enabling Mr Graham to rely on the tort gateway to jurisdiction in England. Mrs Justice Hill DBE concluded that because Mr Graham’s underlying claim against the insurer is “in substance” a claim based on the driver’s negligence (tortious actions), it is a claim founded on that negligence (tort) and so satisfies the requirements of the tort gateway to jurisdiction.

The decision reflects the reality of the insurer’s role in meeting a claimant’s claim for damages and providing an indemnity for the insured tortfeasor’s wrongdoing. In a motor insurance claim, the motor insurer indemnifies the defendant driver pursuant to the contract of insurance and any provisions of the applicable law defining the extent of the insurer’s obligations to meet a claim for damages.

Why did the High Court accept jurisdiction?

As the judge concluded that Mr Graham’s claim falls within the tort gateway to jurisdiction, she went on to conduct the balancing exercise of establishing whether England is the appropriate forum for the claim. The alternative would have been a stay of the English proceedings, requiring Mr Graham to pursue his claim in Portugal.

The judge agreed with Mr Graham that England is the “natural forum” in which he should be permitted to pursue his claim, for the following key reasons:

• Liability is admitted, so the focus is on assessing the claim for damages.
• Mr Graham would need to be examined by a series of experts in different specialist disciplines. He would need to give evidence at trial. His very significant and life-changing injuries mean that it would clearly be more convenient for the expert assessments and trial to take place in England, rather than Portugal.
• Although Mr Graham would be able to give evidence by video link to the court in Portugal, he would require an interpreter, which would be less convenient and might lead to poorer quality evidence, hampering Mr Graham’s ability to present his claim.
• The factual witnesses who would comment on the impact of Mr Graham’s injuries and his ongoing needs are all based in England.
• Translation costs for documents including medical records would be incurred if the claim was tried in Portugal.
• Although the claim for damages would be assessed using Portuguese law, evidence from Portuguese lawyers before the court demonstrated that: “Portuguese law calculates pecuniary (or ‘patrimonial’) losses in a very similar way as English law; and the doctrine of adequate causality is described by the experts as meaning that it is ‘sufficient that the accident or event contributed to the severity of the overall injury’, a concept familiar to English law.”
• Mr Graham may have spent time in Portugal prior to the incident, but had no plans to return to Portugal and was now back living in England.

Is enforcement of a judgment from England & Wales possible in Portugal?

Enforcement of judgments from England & Wales in the EU, on both damages and costs, remains a concern following Brexit. Claimants must obtain evidence on a case-by-case basis to determine whether a judgment will be recognised and enforced in the country where the defendant is based.

In Mr Graham’s case, there was evidence before the court that Portuguese law and procedure is relatively relaxed on the issue of enforcement and suggests that, provided the judgment meets certain formal requirements, the Portuguese courts will permit enforcement. Mr Graham’s Portuguese law expert had not found any cases where the Portuguese courts had refused to recognise a judgment allowing for the payment of a lawyer’s fee.

As we approach the fifth anniversary of the end of the Brexit transition period, it is still relatively early days for assessing the impact on enforcement of judgments from the UK courts, particularly for claims involving life-changing injury damages. It remains to be seen whether, in practical terms, enforcement of a judgment for personal injury damages and costs will be challenging in Portugal and elsewhere in the EU.

What does the case also tell us about service of proceedings abroad?

Where a claimant is relying on the tort gateway in proceedings against a defendant who is based overseas, they must obtain the court’s permission to serve the proceedings out of the jurisdiction (a requirement where a claimant relies on any of the grounds for jurisdiction found at CPR PD6B para. 3.1, including for example a claim made in contract against a defendant outside of the jurisdiction but where English law applies). They must then go on to validly serve the proceedings in whichever country the defendant is based.

Mr Graham’s solicitors had obtained orders from the High Court allowing more time for service on the defendant insurer in Portugal, having encountered difficulties in properly serving the proceedings overseas. The defendant insurer challenged the basis on which those orders had been made, arguing that Mr Graham’s solicitor had not followed the requirements under the English Civil Procedure Rules, and requested the court set aside the applications to extend time for service of the claim form out of the jurisdiction.

The judge refused the defendant’s applications. Although recognising their approach was “highly irregular”, the judge was not persuaded that the procedure adopted by Mr Graham’s solicitors to obtain the orders extending time for service was a barrier to them being allowed to stand. If the judge had set the orders aside, Mr Graham’s claim was still well within the limitation period under Portuguese law and he would have been able to issue the claim and re-attempt service afresh. This approach would have incurred further costs, which Mr Graham or his solicitors would have had to absorb. There was no prejudice to the defendant insurer who had not been deprived of a limitation defence by the claimant’s solicitors approach.

Why is the decision important for individuals following an accident abroad?

Graham v Fidelidade provides a further illustration of how the English courts will approach a jurisdiction challenge in a claim for damages following a life-changing injury sustained in an accident abroad. Of particular note is the judge’s comment on the issue of convenience, expense and availability of witnesses, where she said: “By far the more persuasive argument under this heading is that the witnesses are largely if not entirely based in England and it would be more convenient for them to give evidence in England. In my judgment the Claimant’s extensive health difficulties make the convenience to him of a trial in England particularly clear.” This will very often be the position for the victims of a life-changing injury abroad who then return to their home country for ongoing medical treatment and rehabilitation.

Although the balancing exercise undertaken by the courts is fact specific and nuanced in every case, the convenience of where a case is tried goes to the central issue of access to justice for serious cross-border injury victims. The judgment is therefore likely to be extensively cited on this point in future jurisdiction challenges.

Where a claim is pursued directly against an insurer, as is permitted in motor claims throughout the EU and in other instances under the laws of other European countries, the judgment also makes clear that a claimant can make use of the tort gateway to jurisdiction in England. This is because the underlying claim will usually be one based on the tort of negligence committed by the individual or entity the defendant insurer is providing an indemnity to, under the relevant contract of insurance.

Finally, Graham v Fidelidade is yet another reminder to very carefully go through the checklist of steps that must be taken to secure the court’s permission to serve out of the jurisdiction and, thereafter, to make sure service of the proceedings takes place successfully. Where this is not possible within the claim form’s six-month lifetime under the English rules of procedure (almost invariably the position when a claimant is forced to serve overseas), then the right steps must be taken in a timely fashion to extend the time for service.

You can find further information regarding our expertise, experience and team on our International Injury pages.

If you require assistance from our team, please contact us.

Subscribe – In order to receive our news straight to your inbox, subscribe here. Our newsletters are sent no more than once a month.