10
May
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Conflicts Edition

We’re glad to see that things have settled down somewhat after last week’s excitement; at one point, everywhere we looked people seemed to be arguing with each other. If it wasn’t politicians vying for the honour of representing Hartlepool, it was fishermen arguing about who should be able to fish the waters around Jersey. And then, of course, we nearly accidentally went to war with France. The week ended on a more collaborative note, however; the UN World Tourism Organisation has asked 1CL’s Sarah Prager to join the Consultative Group of Experts to its Committee for the Development of an International Code for the Protection of Tourists, an endeavour which commands the support of an impressive range of interested parties. We’re sure the addition of a member of 1CL’s team will only augment the harmonious atmosphere amongst stakeholders.

 

Service of Proceedings: Procedural v Substantive?

In Johnson v Beretzen [2021] 4 WLUK 244 Mrs Justice Stacey was tasked with deciding a knotty conflict of laws question as a preliminary issue in a claim for damages for personal injury arising out of a road traffic accident.

The accident had occurred in Scotland on 15th June 2016 when the claimant and the first defendant were on holiday. It resulted in the claimant, who was habitually resident in England at the time, sustaining very serious injuries. On 8th August 2018 proceedings claiming in excess of £9million were issued in England. They were served on 7th August 2019. The first defendant and the second defendant, his insurer, contended that the claim was statute barred under the applicable Scots law because it had not been served before the expiration of the three-year limitation period. The claimant countered that, since service was a procedural step within article 1(3) of the Rome II Regulation (Regulation (EC) No. 864/2007 on the law applicable to non-contractual obligations: “Rome II”), it was governed by the procedural rules of England and Wales, and that service had been effected within the time-frame required by the CPR.

There was, of course, no dispute between the parties that the applicable law under Article 4(1) of Rome II was that of Scotland, that under Article 1(3) the claim proceeded pursuant to the rules of evidence and procedure of England and Wales, nor that by Article 15(h) the relevant limitation period was also to be determined in accordance with Scots law. The narrow focus of dispute was on the proper scope of Article 1(3).

Reference was made to Tipples J’s judgment in Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB) when, in the context of case concerning a road traffic accident in Greece, she stated [40]:

“There is no dispute between the parties that the law of limitation in this case is governed by Greek law. On the agreed expert evidence before me, it is clear that it is a rule of Greek law that, in order to interrupt or stop the period of limitation, the claim form must be both issued and served….Further, the experts agree that as a matter of Greek law, a claim that is served after the five-year period is time-barred. Therefore, service of the claim form is, as a matter of Greek law, an essential step which is necessary to interrupt the limitation period. Service of the claim cannot be severed, carved out or downgraded to a matter of mere procedure which falls to be dealt with under English Civil Procedure Rules. That, apart from anything else, would give rise to a different limitation period in England and Wales than in Greece. The clear intention of the Rome II Regulation is to promote predictability of outcomes and, in that context, it seems to me that such an outcome is not what the Regulation intended to happen in these circumstances”

In light of agreement between the Scots legal experts that an action is commenced for the stopping of limitation under the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) when the defender has been served with a copy of the Summons (claim form), the claimant was always going to have a hard time persuading the court to depart from the clear implications of Pandya and, unsurprisingly, Stacey J. refused to do so [Willers v Joyce and Another (No. 2) [2018] AC 843 considered]. Being an exception to the general rule laid down in Article 4 of Rome II, she opined that the scope of Article 1(3) should be construed narrowly. She found none of the arguments advanced “could overcome the central difficulty that the requirement to serve the proceedings in order to stop the limitation clock is not merely procedural but a long standing matter of substantive Scots law.”

In the alternative, the claimant sought a short extension of time under section 19A the 1973 Act” so as to validate late service. As to this, Stacey J. confirmed that the court enjoyed an unfettered discretion, but that this discretion had to be exercised as a Scots judge would. In so doing, she balanced the prejudice to the claimant in not being able to pursue his claim against the loss to the defendants of the statutory defence of limitation. In ultimately deciding to grant the extension requested, she found significant: the fact that the case was fully advanced and full enquiry had been carried out by both parties within the 3 year limitation period; the parties had reached a settlement subject only to finalising an agreed order when the claimant suffered an unexpected heart attack whereupon the defendants withdrew their offers to assess the implications; and that the potential claim in negligence against the claimant’s own solicitors, although highly relevant, would cause the claimant to suffer material and significant prejudice from the inevitable delays that would arise if he did so and require of him considerable effort and tenacity in circumstances where he was both severely physically disabled and suffered from clinical depression affecting his motivation and self-esteem.

About the Author

Dr Russell Wilcox was called to the Bar in 2000, and before joining chambers enjoyed an illustrious career in academia. He was an associate member of McNair Chambers in Qatar, where he worked on a number of large-scale cross-jurisdictional commercial disputes and on international arbitral proceedings, and acted as disclosure counsel in Athenasios Sophocleus & Others v Secretaries of State for Foreign and Commonwealth Affairs and Defence, relating to the actions of the Colonial Administration in Cyprus during the Cyprus Emergency of 1956 to 1959. He now accepts the full range of work undertaken by the travel team at 1 Chancery Lane.

 

England v Germany: Breaching International Comity

In an interesting postscript to Brexit, in Jamieson v Wurrtembergische Versicherung AG [2021] 4 WLUK 370 Master Davison gave guidance on the little-used mechanism contained in Article 29 of Regulation (EC) 1215/2012 (recast Brussels), under which it is possible for the courts of one jurisdiction to request from the courts of another information about when the latter was seised of a claim.

Article 29 reads, insofar as it is relevant:

“1…where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

2.In cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article 32.

3.Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.”

In Jamieson the Claimant had brought proceedings in England against his employer and the insurer of a taxi which had hit him during a work trip to Germany. At an earlier hearing, reported at Jamieson v Wurttemburgische Versicherung AG [2021] 2 WLUK 74¸Master Davison had refused to lift a stay on the English proceedings pending the resolution of German proceedings which had been brought by the insurer seeking a negative declaration of liability. He did however utilise the Article 29(2) procedure to request that the German court confirm the date on which it had been seised of the insurer’s claim. The response was a date after the English action had been commenced, and it followed that the English court had been first seised.

The insurer then submitted that the date chosen by the German court was the point in time when the insurer had taken all steps necessary for that court to serve the claim form on the claimant and that those steps were expected to have taken place after the date of seisin, which was the date on which the claim form had been initially lodged. It contended that the English court should ignore the response because the German court’s actions demonstrated that it considered itself still seised of the proceedings, that the date of seisin was unclear, and that either further clarification should be sought, or the hearing should be adjourned until a date after the outcome of a further hearing before the German court.

Master Davison rejected this submission. He held that there was no ambiguity in the German court’s response, and it was impermissible to question the reasoning that lay behind it. Even had there been no reasoning at all, it would be impermissible for the English court to question the response. The English court was not a court of appeal from the German court, and to challenge its reasoning would breach the principles of comity. The Article mechanism, he said rather tartly, was for a question and an answer, not a dialogue. It might be appropriate to seek clarification in some cases, but not in this case, in which the clarification which the insurer invited the court to seek would be argumentative; the insurer wanted a different rather than a clearer answer.

Consequently, so the Master held, there was no point in adjourning the English claim to await the outcome of any further German hearings. Lifting the stay on proceedings here was likely to render the next German hearing redundant and the German court was likely to terminate the proceedings there, but that would not be unjust given the insurer’s conduct, and if the stay was not lifted, the Claimant would be condemned to months or years of delay and uncertainty. Conversely, the Defendants were not significantly disadvantaged by lifting the stay.

Full points to the Defendants for ingenuity in trying to Torpedo the English claim by bringing German proceedings; but keine Punkte for execution. Once the German court had confirmed that the date of seisin was after the English court became seised of the claim, Master Davison was able to accept jurisdiction over it, and in the light of the unattractiveness of the insurer’s position, it was perhaps inevitable that he would do so.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury.

 

…And Finally…

On 7th May the UK government finally announced its long-awaited Green List of travel destinations for safe overseas travel commencing 4am on 17th May. We at 1CL were intrigued by the list; Portugal (including the Azores and Madeira) is the big winner in terms of holiday destinations, and we can readily understand people wanting to pop over to Singapore, Australia and New Zealand (if they’ll have us), but allowing travel to South Georgia and the South Sandwich Islands, and St Helena, Ascension and Tristan da Cunha, does seem rather quixotic, particularly when many of the Greek islands (those with populations of fewer than 10,000 people) have been entirely vaccinated. Nevertheless, if anyone needs us from 17th May onwards, we’ll be contactable via Reid’s Palace, Madeira.

 

Written by or involving: Sarah Prager, Russell Wilcox

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