The High Court of England has granted judgment to a UK resident who sustained severe life-changing orthopaedic injuries in a road traffic collision in Belgium, refusing the defendant’s application for relief against sanction and confirmed it would in any event have accepted jurisdiction. As the defendant insurer AXA Belgium had already admitted liability, the English court concluded that the majority of the remaining issues and related evidence were more closely connected to England than Belgium.

The background to this case is an example of the additional difficulties claimants must overcome when pursuing cross-border claims post-Brexit. International Injury associate James Griffin reviews the case.

Belgium road traffic collision

Mr Ibrahim, a UK national, was in Zaventem, near Brussels, Belgium on an overseas work trip when he was struck by a vehicle while attempting to cross a pedestrian crossing. Mr Ibrahim sustained severe life-changing orthopaedic injuries in the collision. He has a disability and is unable to return to his pre-collision role or any other employment.

Belgian law applies as the collision occurred in Belgium, and a Belgian driver struck the claimant. Pursuant to Belgian law, the claimant had a direct right of action against the insurer of the driver’s vehicle, AXA Belgium.

Jurisdiction and service

Mr Ibrahim’s collision occurred in 2019. At the time, the UK had not completed its withdrawal from the European Union (Brexit did not officially take place until 31 January 2020). Mr Ibrahim initially instructed other solicitors, who were not travel law specialists, to pursue his claim for compensation arising from his injuries. It was only after the Brexit deadline that Mr Ibrahim instructed Stewarts’ specialist cross-border lawyers. He is now represented by Scott Rigby and James Griffin of Stewarts’ International Injury team.

If proceedings had been commenced before the ratification of the Brexit withdrawal agreement on 31 January 2020, Mr Ibrahim could have served proceedings directly on the UK arm of AXA. However, the ability to serve proceedings on the UK agent of motor insurance companies is one of several rights that have been lost to English claimants post-Brexit.

English High Court proceedings were commenced in August 2023. The defendant’s UK agent, AXA UK, had appointed English solicitors to represent the defendant in the claim. Proceedings were served on the English solicitors nominated by the defendant to accept service. The English solicitors for AXA Belgium filed an acknowledgement of service, indicating that they did not intend to contest the claimant’s choice of English jurisdiction. A defence was then filed, confirming liability for the collision was admitted, and again making no reference to any challenge to Mr Ibrahim’s choice of English jurisdiction.

Attempted Belgian ‘torpedo’ action

In January 2024, after the valid service of the English set of proceedings and the filing of the acknowledgment of service and defence, AXA Belgium commenced a separate set of proceedings in Belgium. The claimant’s personal receipt of the writ of summons was the first time the defendant had indicated any intention to commence proceedings in Belgium.

AXA Belgium then filed an application in the High Court seeking a declaration that the English court was not the appropriate jurisdiction and that the English proceedings should be stayed in favour of the recently commenced Belgium proceedings. The defendant also sought relief from sanctions for failing to file a challenge to the jurisdiction within 14 days of filing the acknowledgment of service.

The defendant’s case was that there had been a miscommunication between the defendant, AXA Belgium, and the agent representing them, AXA UK. They suggested that AXA Belgium was simply unaware that proceedings had commenced in England, nor was it aware that AXA UK had instructed English solicitors to accept service of proceedings, submit to English jurisdiction and file a defence in which liability was admitted. Upon discovery of the English proceedings, AXA Belgium commenced a separate set of proceedings in Belgium and instructed the English solicitors to file a forum challenge.

Forum challenge

Hearing the applications, Master Fontaine (sitting in retirement) dismissed both strands of the defendant’s application. On the application for relief, Master Fontaine noted that the defendant accepted that the default was a significant one. The judgment stated:

“My view is that such a failure to abide with the strict time limit imposed by Part 11, relating to such an important issue as the jurisdiction of this court, is a serious or significant breach. A challenge to the jurisdiction of the court by a defendant, whether on substantive grounds or forum non conveniens [appropriate forum] grounds, would have serious consequences for a claimant if it succeeded. It would force a claimant in this jurisdiction to discard their claim, and potentially incur irrecoverable costs. They would have to pursue their claim in a jurisdiction which is likely to be unfamiliar to them and where the language may not be one they know. Although it is correct that the delay of 30 days did not overly prejudice the claimant, who has been able to respond fully to the application, that is not a complete answer to the breach, as otherwise breaches of the time limit in Part 11 would be easily excused, which is not the intention, in my view, given the limited 14 day time limit.”

She continued: “It is also accepted by the defendant that there is no good reason for the breach. The explanation is that there was a misunderstanding or breakdown in communications between AXA UK, through whom Clyde & Co receive their instructions, and the defendant AXA Belgium. No details are provided in the evidence as to how such a fundamental misunderstanding could have arisen, how the defendant could have failed to alert their own solicitors in these proceedings that it had instigated proceedings in respect of the same collision in Belgium, or been unaware that proceedings had been brought in England. In the absence of any fuller explanation I do not conclude that there was a good reason for the failure.”

Master Fontaine went on to deal with the forum challenge strand of the application. This was also rejected. In the judgment, some of the key points considered by Master Fontaine were:

• The fact that the collision took place in Belgium and the defendant is domiciled in Belgium were relevant factors, but these factors were made much less important in a case where liability for the collision is admitted and no allegation of contributory negligence is made.
• An English judge would be more than capable of applying the applicable Belgian law.
• The range of permitted expert evidence may be more limited in Belgium, which could adversely affect the claimant in relation to the issues of determining causation for his injuries and fully particularising his potential losses in the future.
• All the claimant’s treatment and expert evidence are based in England.
• As liability is not in dispute, all disclosure evidence is based in England.
• The defendant had been dealing with the claim since 14 December 2020, and there had been no suggestion at any time that AXA Belgium intended to challenge the choice of English jurisdiction. This had led the claimant to incur significant further costs in pursuing his claim in England.
• If Belgian jurisdiction were preferred, the claimant would have to make up any shortfall in legal costs in the Belgium proceedings from his damages, where there is no suggestion that similar funding arrangements to those he has with his English solicitors would be available.

Notably, on dealing with any potential difficulties with the enforcement of the English judgment in Belgium, Master Fontaine noted:

“…as one would expect, enforcement of a Belgian judgment in Belgium would be easier and quicker than enforcement of an English judgment in Belgium, particularly post Brexit. That is a relatively neutral factor, in that it has not deterred the claimant from preferring the jurisdiction of his home court. Further, one might expect that the defendant, part of a substantial international insurance group, would not require a judgment of this court to proceed through an enforcement process, and that they would honour the judgment of the English court, particularly in circumstances where apparently lack of communication between the defendant in Belgium and AXA UK has caused the situation of dual proceedings to arise at this late stage, almost 5 years after the collision.”

This decision falls in line with a similar judgment in Moonbug Entertainment Ltd v CCM Touring LLC & Anor [2024] EWHC 793, where the defendant had filed an acknowledgment of service that did not indicate an intention to dispute jurisdiction. The defendant then sought an extension in filing its defence. By the time the jurisdiction challenge application was made, the allotted time for doing so under the Civil Procedure Rules had passed. That application for relief was dismissed.

Comment

Partner Scott Rigby says:

“I am delighted we have been able to secure judgment in this matter for Mr Ibrahim. This case shows the additional hurdles claimants who have sustained injury abroad in the post-Brexit era must overcome. This judgment establishes that the English court has jurisdiction and it is to be hoped that a major international insurer like AXA will respect that decision.

“This matter is yet another reminder to how careful claimants must be, and how many claimant rights were removed post-Brexit. The claimant’s ability to not only serve proceedings has changed, but also their ability to enforce an English judgment against a foreign defendant. These are complex issues which need to be considered at the outset of any claim concerning someone injured abroad. This case should hopefully serve as an example of why specialist cross-border lawyers like our team at Stewarts should be instructed whenever there is a cross-border element to a claim.”

Stewarts was represented by lead counsel Sarah Prager KC at the application hearing and by Andrew Spencer at an earlier judgment hearing, both of Deka Chambers.

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