On 20 October 2021, the UK Supreme Court gave judgment in the last instalment of the long-running jurisdiction battle involving Lady Brownlie and the Four Seasons Hotel, Cairo. The UK left the European Union at 11pm on 31 December 2020.
In their own ways, both Brexit and Brownlie have brought about a profound sea change on the issue of jurisdiction and the question of enforcement of a UK judgment overseas when advising injury victims in a cross-border context.
Christopher Deacon gave a talk at the APIL Accidents Abroad conference in London on 1 December 2022 considering the practical implications of the judgment and the interplay with jurisdiction and enforcement following Brexit, summarised here.
What are the post-Brownlie battlegrounds on challenges to jurisdiction in E&W?
The Supreme Court found in FS Cairo (Nile Plaza) LLC v Brownlie (as Dependent and Executrix of Professor Sir Ian Brownlie QC) that a wide interpretation should be given to the ‘tort gateway’ on jurisdiction under the Civil Procedure Rules (CPR) for England and Wales (“E&W”). The effect of the decision is that the victim of an injury overseas can attempt to bring their claim in E&W if they are suffering the ongoing effects, financial and non-financial, when they return home from abroad.
When the decision was published in October 2021, there was much commentary and debate among practitioners as to whether this opened the floodgates: would it enable claimants with even the most minor injuries occurring overseas to take advantage of this ground of jurisdiction?
It is plain from Lord Lloyd-Jones’s judgment that the severity of the injury does not matter for the purpose of the tort gateway. All that is required is for there to be some ongoing damage when the claimant returns to E&W. The concept of damage is given a wide interpretation.
That is not the end of the matter, however, when it comes to establishing jurisdiction pursuant to the tort gateway. Lord Lloyd-Jones said the Supreme Court’s decision does not confer a right on anyone who has an injury claim following an accident abroad to bring their claim in E&W. The courts will be astute to ensure the claim has its closest connection with this jurisdiction. The principle of forum non conveniens (the common law doctrine that considers whether the courts of E&W or those of another jurisdiction are a more appropriate forum for the dispute) is a robust and effective way to ensure the floodgates are not opened for international injury victims.
Therefore, the post-Brownlie battleground when there is a challenge to jurisdiction in a claim for personal injury brought pursuant to the tort gateway of the CPR is forum non conveniens. Alongside that is the question of whether a claimant can have confidence in being able to enforce any judgment overseas if they can establish jurisdiction in E&W.
Forum non conveniens: how will the courts apply the test?
More than a year after the decision in Brownlie, there is little guidance from the courts to turn to when advising clients on how the tort gateway will now be approached. There is, however, a long line of non-EU jurisdiction cases pre-Brownlie interpreting and applying the tort gateway to English jurisdiction as previously framed. These include Stylianou v Chimarides [2005] EWCA Civ 1057 in a Western Australian context, Wink v Croatio Osiguranje DD [2013] EWHC 1118 (QB) in a Croatian context, Harty v Sabre International Security Ltd (formerly SIS Iraq Ltd) [2011] EWHC 852 (QB) in an Iraqi context and Pike & Anor v The Indian Hotels Company Ltd [2013] EWHC 4096 (QB) in an Indian context.
But what of the post-Brownlie case law? The only reported personal injury case appears to be that of Master McCloud in Charlton v Deffert [2022] EWHC 2378 (KB). The claim arises from a road traffic accident in France. The claimant was cycling near Morzine when a car approaching from the opposite direction collided with him, causing serious injury and an ongoing impact on the claimant’s work and life on his return to England. The defendant is a French national domiciled in France. The French road traffic liability regime is highly favourable to victims. It imposes what is effectively strict liability unless the defendant can show the accident was caused by the claimant’s “inexcusable fault”.
The defendant’s UK agent nominated solicitors to accept service in England. Proceedings were duly served on those solicitors, and the defendant challenged jurisdiction when acknowledging service.
The first issue for Master McCloud was whether the claimant required permission to serve out of the jurisdiction on a defendant who has nominated solicitors in E&W. Master McCloud dismissed the defendant’s application on this ground. Where a foreign defendant nominates solicitors to accept service in the jurisdiction, there is no need for a claimant to apply for permission to serve out of the jurisdiction. Service on the defendant had been validly effected in E&W.
Master McCloud confirmed that the forum non conveniens burden shifts to the defendant where permission to serve out of the jurisdiction is not required. The court can exercise its inherent discretion to decline jurisdiction if there is a challenge by the defendant. However, the defendant must show there is a clearly or distinctly more appropriate forum for the claim than E&W.
Could the defendant in Charlton v Deffert satisfy Master McCloud that France was clearly or distinctly the more appropriate forum? In Master McCloud’s view, this case was all about quantum. There was limited liability evidence in French and no independent French liability witnesses. The bulk of the evidence was in England and in English. Translation costs would be considerably higher if the claim were heard in France. There would be complexities around English rules on taxation and business operations because of the claimant’s earnings situation (presumably a significant aspect of the claim). Also, there were no complex legal issues. The defendant did contend there was inconsistent case law on the defence of “inexcusable fault”. However, he failed to adduce any French law expert evidence on the point, and Master McCloud was unwilling to put much weight on this argument based on submissions alone.
Contrast the outcome in Charlton with that of His Honour Judge Hellman in the Mayor’s and City London County Court case of M&M v MACIF, unreported on 25 October 2022. This claim arises from a road traffic accident in France in October 2018. Although the accident pre-dates the end of the Brexit transition period, the claim was not issued until July 2021. Permission to serve out of the jurisdiction was granted. MACIF was served in France but then challenged jurisdiction. In this case, the court was persuaded it should not exercise jurisdiction over the claim. Factors influencing the judge’s decision were that the French court is best placed to apply French law. The judge formed the view that claimants would not need to attend proceedings in France and could easily instruct a French lawyer via an English solicitor.
It is apparent from the statement of value on the claim form that the injuries in this case were less severe than in Charlton, even if both cases involved a similar degree of un-complexity on the issue of liability. The judge noted that the English proceedings were not at an advanced stage. Although little may have been done in this particular case during the pre-action phase to progress the case, the wasted costs of steps taken in England to progress an action might be a factor that weighs in a claimant’s favour in other cases.
Enforcement of judgments following Brexit and the implications for the tort gateway
The other battleground post-Brexit and Brownlie is the enforcement of judgments. This is nothing new so far as seeking to pursue a claim under the tort gateway is concerned, except that the risk on enforcement now applies to an additional 27 countries in a way it did not pre-Brexit. Even if a claimant is satisfied they have the better of the argument on forum non conveniens and will establish jurisdiction in E&W, they also need to be equally, if not more, satisfied they will get their money if the defendant defaults on the judgment to pay damages and costs and they need to pursue enforcement overseas.
For each EU country and European Free Trade Association (EFTA) state, in the absence of the Lugano Convention and following the loss of the European regime on jurisdiction and enforcement, it is necessary to check whether the UK has a bilateral treaty on enforcement. In the absence of a bilateral treaty, it is necessary to consider the domestic rules in the country where a claimant is seeking enforcement.
While the position in Europe might look bleak, depending on the country, there have been some recent developments from further afield in relation to the principle of reciprocity and enforcement of UK judgments:
- China: in March 2022, the People’s Supreme Court granted enforcement of a High Court judgment in a commercial case based on the principle of reciprocity.
- UAE: a Ministry of Justice circular to Dubai courts in September 2022 concluded that the reciprocity principle is met in relation to judgments from E&W, highlighting the decision of the High Court in Lenkor Energy Trading DMCC v Puri[2020] EWHC 75 (QB), which permitted enforcement of a Dubai judgment.
Enforcement under the Hague Judgments Convention 2019
The Hague Judgments Convention 2019 provides a framework for recognising and enforcing judgments between the courts of contracting states. The convention has now been acceded to by the EU on behalf of its 27 member states and ratified by Ukraine, meaning it will come into force on 1 September 2023. Ratification by the UK is expected soon, and the Ministry of Justice has now launched a formal consultation. There are, however, a number of notable limitations to the Hague Judgments Convention, which means it will likely be of limited assistance to serious injury victims in a cross-border context.
Pleading foreign law – the “Brownlie bonus”
The Supreme Court’s decision in Brownlie also provides guidance for parties grappling with tactics in relation to the pleading of a foreign law. This guidance is particularly pertinent to the tactics a party might adopt at the stage of a jurisdiction challenge.
In his judgment, Lord Leggatt deals with the presumption of similarity and the default rule on the pleading of foreign law. He clarifies that the presumption of similarity is a rule of evidence concerned with what the content of the foreign law should be taken to be where there is no evidence of the foreign law, despite the parties pleading that a foreign law applies. On the other hand, the default rule treats English law as the applicable law when the parties have not pleaded that a foreign law applies.
At the jurisdiction challenge stage of proceedings, the parties often will not have detailed evidence of the content of the foreign applicable law. If they do, they might decide not to deploy it in full or at all for tactical reasons. What Lord Leggatt says in Brownlie is unsurprising: the burden is on the party seeking to rely on the foreign law to show it has a good claim or defence under that foreign law. He cautions against a party relying on the presumption of similarity. The risk to a party proceeding without any evidence as to the foreign law is also reflected in the judgment of Master McCloud in Charlton, where she said:
“It was pointed out that we had no legal expert evidence as to French law and that the defendant’s suggestion that the law had some complexity needed more than submissions absent some material evidentially to make good that point.”
The question then arises as to how a party should go about adducing foreign law evidence at the stage of a jurisdiction challenge. Does this necessarily mean obtaining and deploying fully compliant foreign law expert reports? Clearly, considerations of costs and proportionality will prevail. While a party may have obtained a draft report from a foreign law expert, this does not necessarily mean the party needs to serve the report in full. Lord Leggatt encourages a pragmatic approach in his judgment in Brownlie. This is now reflected in the Commercial Court Guide, which suggests that the evidence might take the form of a witness statement, could be from a lawyer acting for the party and might exhibit foreign law source materials. If the parties consider formal expert reports are needed, then the jurisdiction challenge might require case management before it can be heard: see Gulf International Bank BSC v Aldwood [2019] EWHC 1666 (QB).
Concluding thoughts and practical considerations
In VTB v Nutritek [2013] UKSC 5, Lord Mance said: “It is generally preferable, other things being equal, that a case should be tried in the country whose law applies. However, that factor is of particular force if issues of law are likely to be important and if there is evidence of relevant differences in the legal principles or rules applicable.” This position is reiterated in the White Book in section 6.37.19.
It might be said, therefore, that establishing jurisdiction in E&W where a foreign law applies following an accident abroad remains an uphill struggle for claimants.
Each case will, however, stand or fall on its own facts, despite what the authorities might say about how the forum non conveniens doctrine should be applied and how similar factual scenarios have been approached in previously reported cases. The contrasting outcomes in the recent post-Brexit and post-Brownlie decisions of Charlton and M&M detailed above demonstrate this.
The nature of the injury and level of disability may influence the outcome. It is far more challenging for those suffering life-changing injuries to seek access to justice in a foreign court, given the likely constraints of their disability.
The availability of funding arrangements favourable to the claimant or legal expenses insurance is a point that requires careful consideration. The funding arrangements available in competing jurisdictions ought to be deployed in the evidence when responding to a jurisdiction challenge as it may sway the case because it strikes at the heart of access to justice.
The operation of qualified one way cost shifting (QOCS) at the jurisdiction challenge stage in E&W is favourable to injury claimants who might want to “flush out” the position on jurisdiction early on without incurring significant costs and the risk of an adverse costs order.
Claimants should be alert to defendants seeking to “complicate” the issue of liability in what would ordinarily be a straightforward case. This might be a reason for obtaining and deploying foreign law expert evidence to persuade the judge of the simplicity of the issue of liability. It will be easier where there is limited liability evidence. Early, diligent investigations are therefore more important than ever in cases where jurisdiction is likely to be hard fought.
Following Charlton, defendants may be less likely to take a sensible and pragmatic approach on service, as it will shift the burden to them at the forum non conveniens stage of a jurisdiction challenge. Even with the burden shifted to the defendant in such cases, a claimant should not sit back and do nothing and should put in robust evidence in reply as to why E&W is “clearly or distinctly” the more appropriate forum.
When the court is considering a jurisdiction challenge, it will not matter that until recently, EU motor insurers in particular (but other categories of defendants commonly seen in injury claims) could be sued “conveniently” in E&W.
When assessing the risk on enforcement, claimants should obtain up-to-date advice and analysis on the law and practice of the courts in the relevant country.
Most importantly, perhaps, there is a need for speed. Claimants should not delay in getting their case issued, served and jurisdiction resolved, one way or the other, in good time before the limitation period for bringing the claim expires.
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