Mohammed Ibrahim v AXA Belgium

This was the hearing of the Defendant’s application for relief from sanction, and for a declaration that the court should not exercise its jurisdiction over the claim and for a stay of the claim. The application is supported by the witness statement of Kim Bracewell dated 23 February 2024 and the first and second witness statements of Luc-Robert Willems dated 21 and 27 February 2024. It is responded to by the second witness statements of Scott Rigby dated 25 March 2024 and the witness statement of the Claimant dated 12 March 2024. The Claimant also relies upon a letter from Karel Mul dated 13 March 2024. The Defendant also relies on a further statement from Mr Willems in reply dated 20 March 2024.

The Claimant has made an application for judgment pursuant to CPR 14.4 dated 12 February 2024, supported by the first witness statement of Scott Rigby dated 27 February 2024. The parties have agreed that the determination of this application will depend upon the court’s decision in respect of the Defendant’s application.

The claim is for damages for personal injury sustained by the Claimant in a road traffic accident in Belgium on 15 March 2019. The Claimant was aged 53 at the date of the accident and is now aged 58. He sustained a head injury and orthopaedic injuries as a pedestrian crossing a road at Riglaan in Zaventem near Brussels airport. At the time of the accident the Claimant was employed as an aircraft maintenance engineer and was in Belgium in the course of his employment. A chronology of relevant events following the accident is set out as an Annex to this judgment.

The Defendant seeks a declaration that this court should not exercise jurisdiction over the claim on forum non conveniens grounds, and a stay of proceedings. CPR 11.1(4) applies to the application to challenge jurisdiction on forum non conveniens grounds, so the application must be made within 14 days of filing the acknowledgement of service. The application was made 30 days after filing the acknowledgement of service. The Defendant acknowledges that as it has not complied with the time limits for making an application under CPR 11 and it seeks an extension of time for making such an application. It is common ground that the same considerations apply to the application for an extension as those that apply to applications for relief from sanction under CPR 3.9, namely the guidance given by the Court of Appeal in Denton v T. H. White Limited [2014] EWCA Civ 906.

The witness statement of Kim Bracewell deals with this application at ⸹⸹4-11. The response of the Claimant to this evidence is at ⸹⸹41-49 of Rigby 1. I will address the evidence and submissions in relation to each of the three strands of the guidance in Denton in order to determine whether the application should be granted.

Ms Bracewell realistically accepts that the default is a significant one. Mr Doherty, Counsel for the Defendant, accepted that submitting that a delay of 30 days was capable of being a serious and significant default, but points to approaches taken in authorities to suggest that such a delay may not necessarily constitute a serious and significant default. In Le Gueval-Mouly v AIG Europe Ltd [2016] EWHC 328 (Comm) Hickinbottom J. held that a 22 day delay was not serious or significant at [36] – [37], stating that the question depended upon the context and the facts of the specific case. The Defendant points out that, similarly to the reasons relied upon in Le Gueval-Mouly, the progress of this litigation has not been affected by the 30 day delay.

The Claimant originally relied upon a 114 day delay, clearly much more significant, from the date when the proceedings were originally served, 18 October 2023, following an agreement by Mr Murray of Clyde & Co, solicitors for the Defendant, to accept service by email. However, it became apparent that although Mr Murray had agreed in a telephone call with Mr Rigby to accept service at his personal email address, he had not done so in writing, and the wording on the end of the Clyde & Co email states that service by email, when agreed, must be at a particular dedicated email address, and that was not done in relation to the proceedings sent by email on 18 October 2023. Accordingly, applying CPR 6.3 (1)(d) and PD6A 4.1 (1) the purported service on 18 October 2023 was not good service. Ms Prager KC for the Claimant sensibly conceded this point when she became aware of it. Further there was an agreement by the Claimant to an extension of time for filing an acknowledgement of service and defence following the subsequent service on 10 January 2024, so the earlier period of delay from 18 October 2023 was effectively subject to that agreement.

The Defendant also relies on the jurisprudence supporting the fact that an application for a stay on jurisdictional grounds can be made at any time in the proceedings, by contrast to an application seeking an order that the court has no jurisdiction. Here the Defendant accepts that the English court has jurisdiction over the claim, but seeks a stay on forum non conveniens ground, namely that there is another more appropriate jurisdiction for the claim. The distinction between an application making a challenge to the jurisdiction of this court and one seeking a stay on jurisdictional grounds was highlighted by the Privy Council in Texan Management v Limited v Pacific Electric Wire & Cable Company Limited [2009] UKPC 46.at [59] – [62] and [68]. At [70] – [71] Lord Collins said:

“70.

But these provisions do not sit easily with applications for stays. For example, circumstances may change and a defendant may wish to apply for a stay well after the proceedings have commenced on the ground that the claimant has subsequently commenced proceedings in another jurisdiction for the same or similar relief, or the claimant may wish to apply for a stay of proceedings on grounds unconnected with the international character of the proceedings,…

71.

In such cases the defendant will not have been in a position to apply for a stay at the outset of proceedings….”

And at [73]:

“The overall effect is this. A defendant served within the jurisdiction who has reasons for applying for a stay on forum non conveniens grounds at that time should normally make the application under…. CPR Part 11……The court has a power to extend the time for compliance with any rule.. even if the application for extension of time is made after the time for compliance has passed: …. CPR r.26.1(2)(k)……”

However the Defendant accepts that CPR 11.1(4) applies to the time limit within such application must be made. In any event, as Ms Prager KC pointed out, in this case there had been no change of circumstances such as those envisaged in Texan Management at [70] above, and the Defendant was in a position to apply for a stay at the outset of proceedings. The Defendant relies on the fact that the Defendant was unaware of the English proceedings as a change of circumstances, but in my view it is unlikely that the Privy Council in Texan Management envisaged that a defendant’s own mistake or inefficiency would constitute a change in circumstances, particularly where the Defendant’s agent, AXA UK, was well aware of the English proceedings and had instructed English solicitors to act on behalf of the Defendant.

My view is that 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 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. In this case the Defendant’s solicitors are a large city firm with an international practice. They had been instructed in the claim since 16 August 2023 and had agreed to accept service on 10 October 2023, and been aware that service would be made by email since 18 October 2023. In the event valid service was made on 10 January 2024, and an extension of time granted by the Claimant for filing and service of acknowledgement of service and defence, so they had ample notice. Those circumstances suggest that the breach was serious and significant. However, even if I am wrong in coming to that conclusion it is appropriate to consider the other stages of Denton.

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 accident 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.

With regard to the third strand of the Denton guidance, all the circumstances, in my judgment the following circumstances are relevant:

In these circumstances, even if the breach was not significant in that it has not caused any significant prejudice to the Claimant’s progression of the litigation, I consider that because of the lack of any good reason for the breach and the circumstances in which the breach came about, relief from sanction should not be granted, and an extension of time for making the stay application will not therefore be granted.

As the parties have fully argued the stay application, and in the event that I am wrong in my conclusion in respect of the application for an extension, I will deal with the stay application.

The starting point for a stay on forum non conveniens grounds remains the judgment of Lord Templeman in Spiliada Maritime Corporation v Cansulex Ltd (The Spiliada) [1987] AC 460; see 464H-465A:

“Where the plaintiff is entitled to commence his action in this country, the court, applying the doctrine of forum non conveniens will only stay the action if the defendant satisfies the court that some other forum is more appropriate. Where the plaintiff can only commence his action with leave, the court, applying the doctrine of forum conveniens will only grant leave if the plaintiff satisfies the court that England is the most appropriate forum to try the action. But whatever reasons may be advanced in favour of a foreign forum, the plaintiff will be allowed to pursue an action which the English court has jurisdiction to entertain if it would be unjust to the plaintiff to confine him to remedies elsewhere.”

As the above citation shows, there is effectively a two stage test established by The Spiliada. First, a defendant has the burden of showing a foreign court is clearly and distinctly the more appropriate forum for the trial of the claim. If that is shown, the court will ordinarily grant a stay unless the claimant can establish that there are circumstances by reason of which justice requires that a stay should not be granted: per Lord Goff at 478E.

The Defendant accepts that it has the burden of demonstrating that Belgium is the appropriate forum for the claim brought by the Claimant, because the jurisdiction is based upon service upon the Defendant in this jurisdiction, by its solicitors having accepted service: see Charlton v Deffert [2022] EWHC 2378 (KB).

The primary factors linking the case to Belgium are the fact that the Defendant is a company domiciled in Belgium, and the tort occurred in Belgium. The latter factor means that the governing law is Belgian law: see Willems 3 at ⸹7. Other factors relied upon by the Defendant are:

The Claimant submits that there are more factors in favour of pursuing the English proceedings than the Belgian proceedings:

The issue of jurisdiction is raised in Mr Willems’ evidence in Willem 2 at ⸹⸹12-15, where he appears to suggest that as a matter of Belgian law by bringing a claim against the insurer in England the Claimant is in breach of an applicable Belgian public order law, not just a breach of Belgian law procedure, but as the Claimant’s leading counsel pointed out, this is not asserted in the Defence, and is disputed by the Claimant’s expert. It was also submitted on behalf of the Claimant that if that were the case, it would be a breach of the Fourth Motor Insurance Directive, so would therefore be unlikely. I have not concluded that the Belgian court has exclusive jurisdiction, as this is not asserted by the Defendant in its Defence or in submissions. However, I recognise and respect the fact that the Belgian justice system considers the internal jurisdiction of the specialist Police Courts as important, as a matter of both efficient administration and of specialist expertise, as would be the case in most jurisdictions where judges of specialist courts are able to develop expertise in the area of law of that specialist court.

As is clear from the summary above, there are factors in favour of and against each jurisdiction, but the law is clear that the court should only stay a claim brought as of right in this jurisdiction if a defendant can show that a foreign court is clearly and distinctly the most appropriate forum for the trial of the claim.

In FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45 at [79], Lord Lloyd-Jones (with whom Lord Reed, Lord Briggs and Lord Burrows agreed) said:

“The discretionary test of forum non conveniens, well established in our law, is an appropriate and effective mechanism which can be trusted to prevent the acceptance of jurisdiction in situations where there is merely a casual or adventitious link between the claim and England.”

And at [82]:

“The wider reading of damage within the meaning of the tort gateway,

which I favour, does not confer on all claimants in personal injury cases a right to bring proceedings in the jurisdiction of their residence. The courts will be astute in ascertaining whether the dispute has its closest connection with this jurisdiction and the principle of forum non conveniens will provide a robust and effective mechanism for ensuring that claims which do not have their closest connection with this jurisdiction will not be accepted here.”

In Brownlie at [83] the majority of the Supreme Court accepted that where pain, suffering, loss of amenity and permanent disability suffered by a claimant resident in this jurisdiction in a road accident that occurred in another jurisdiction: “The damage is in a very real sense sustained in the jurisdiction.”

The place of the tort is of course an important factor, but the comments in VTB Capital plc v Nutritek International Corp and ors [2013] UKSC 5 by Lord Mance at [51] are relevant:

“The place of commission is a relevant starting point when considering the appropriate forum for a tort claim. References to a presumption are in my view unhelpful. The preferable analysis is that, viewed by itself and in isolation, the place of commission will normally establish a prima facie basis for treating that place as the appropriate jurisdiction. But, especially in the context of an international transaction like the present, it is likely to be over-simplistic to view the place of commission in isolation or by itself, when considering where the appropriate forum for the resolution of any dispute is. The significance attaching to the place of commission may be dwarfed by other countervailing factors.”

At paragraphs [57] to [61] the court made it clear that “a wider view is necessarywhen considering the appropriate forum”, than just the place where the tort was committed and what law governed it, and that a court must consider the issues in the particular case and where the factual focus is likely to be.

The judgment in VTB has been applied in other cases. In Klifa v Slater [2022] EWHC 427 (QB) at [19] Charlton v Deffert [2022] EWHC 2378 (KB) at [5], and Moore v MACIF Mayor’s and City of London CC at [38] before HHJ Hellman 25.10.22.

The links of the tort to Belgium are primarily the place of the accident and the place of domicile of the Defendant and the driver. But these are of much less importance in a case where liability for the accident is admitted, and no allegation of contributory negligence is made, as no evidence on the circumstances of the accident will need to be considered in relation to the Claimant’s claim. If the Defendant wishes to pursue contribution claims against other parties, presumably they can either join them to the English proceedings or continue their claims against them in the Belgian proceedings once the quantum claim has been determined.

The other important factor is the governing law. Although it is obviously preferable for judges in the jurisdiction where that law is applied to determine a claim subject to the law of that jurisdiction, it is not uncommon for judges in the High Court of this jurisdiction to determine a claim where the governing law is that of another jurisdiction, assisted by foreign law experts. In this case it may be relatively straightforward, where only causation and quantum are in issue, and quantum of damages in respect of the injuries under Belgian law is based on a tariff system. It appears that compensation for economic loss is also awarded: see page 5 of Mr Mul’s letter.

Although all the disclosure is based in England, this would be confined to causation and quantum, and can presumably be provided electronically, so this is not a compelling factor for either jurisdiction.

No witnesses of fact would be required to travel to Belgium to give evidence, on the basis of Mr Willem’s evidence, not disputed by Mr Mul.

There is a difference of approach to medical evidence in Belgium and the UK, as is addressed by the Claimant’s submissions in Paragraph 19 (vi) above. I do not conclude that the Belgium court’s approach would necessarily disadvantage the Claimant in this case, but I do have some concerns that the range of permitted expert evidence may be more limited which could adversely affect the Claimant in relation to the issue of causation, as I explain below.

It is apparent from the report of his orthopaedic expert Mr Peter Hull dated 10 May 2022 that the Claimant’s physical injuries were not of the most severe. They are described as a head injury, right knee pain caused by a medial collateral ligament tear, right neck, shoulder, arm pain and neurological symptoms and back pain. The Claimant was released from hospital on the same day as the accident and returned to the UK by Eurostar the following day, with assistance from friends and family. The orthopaedic report makes it clear that the Claimant’s symptoms are more than would be expected on the basis of the imaging findings, (MRI and X ray), and that there is likely to be interplay between psychological aspects and pain aspects. Mr Hull states that he would not expect that the orthopaedic injuries would not have any major long term consequences apart from the occasional aching and discomfort, and would not have prevented a return to work. With regard to the head injury, it was stated that whilst the MRI brain scan was reported as normal, further investigation from a neurological expert was advised. It is said that if the Claimant’s ongoing symptoms are accident related he would have current and future care needs and a care expert is suggested.

The expert report from Dr Glyn Towlerton on pain conditions and prognosis, dated December 2023, concludes that the Claimant has a pain condition following a life changing event that is likely to continue, and prospects for substantial improvement in his pain are unlikely but within the range of possible outcomes. Further treatment including pain physiotherapy and psychotherapeutic input are recommended.

The Belgian court would to be able to instruct additional experts, but it seems unlikely from the evidence of both experts in Belgian law that experts in all the fields of specialism recommended by Mr Hull and Dr Towlerton would be permitted, namely orthopaedics, potentially neurology, pain and pain management, psychology and care.

It is apparent that there will be a significant issue between the parties in relation to causation, namely as to whether the deterioration in the Claimant’s condition after 2020 was caused wholly or in part by the effects of the accident, and that is an issue where the court would be assisted by expert evidence in the particular disciplines recommended by the English medical experts, in my view.

It is clear from the evidence of both Mr Willems and Mr Mul that, as one would expect, enforcement of a Belgium 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 accident.

I do not conclude that the Defendant has demonstrated that the Belgian court is the more appropriate forum in this case. Causation and quantum issues concern primarily medical evidence and save for the Claimant’s initial examination in a Brussels hospital following the accident, all his treatment and expert evidence has been in this jurisdiction. It would in my view be preferable for that to be considered in an English court, with assistance from Belgian expert witnesses in advising how the court’s conclusions should be addressed under Belgian law. I note in the case of Wood v Foyer Assurance SA [2023] EWHC 1193 (KB) the judge had no difficulty in applying Belgian law to a fatal accident claim where the accident had occurred in Belgium, where liability was denied, and in the alternative contributory negligence was alleged.

In any event, if I am wrong in that conclusion, I consider that, applying the second test formulated by Lords Templeman and Goff in Spiliada, it would be unjust to the Claimant to confine him to pursue his claim to the Belgian police court, for the reasons that follow.

Although the Defendant relies upon the fact that the Claimant was able to travel to various European countries in 2019 and 2020 to support its submissions that he would be able to travel to Belgium for medical examinations and for the trial, it is apparent from the evidence of Mr Hull and Dr Towlerton that his physical injuries have led to unresolved pain issues and likely psychological problems that may have caused his current very limited living conditions, his limited mobility, his increased pain and care needs. The requirement to travel to Belgium for further medical examinations and for the trial would therefore be disadvantageous to him.

On the issue between the parties as to whether the Claimant understands Dutch, I consider that the Claimant’s evidence is more credible. Mr Willems’ evidence appears to be based upon his supposition as to what occurred in the police station. The Claimant’s evidence is that he does not speak or understand Dutch, and that all his dealings with counterparts in Europe have been in English. It would be unusual to find someone for whom English is a first language who could speak and understand Dutch reasonably fluently unless perhaps they had a Dutch or Belgian parent or had lived or worked in the Netherlands or Belgium for a long period. The Claimant would be disadvantaged at trial, where the language of the court would be Dutch, and he would have to rely entirely on interpreters, and he may to some extent be disadvantaged in his dealings with Belgian medical experts. He may be disadvantaged, again to some extent, in dealing with his legal representative in Belgium, and in operating in an unfamiliar environment.

The Claimant has incurred legal costs and disbursements in England, and it has not suggested by the Defendant that it would compensate him for those costs and disbursements if the proceedings were to be stayed. The Defendant has submitted that the Claimant entered into a CFA after the Brexit transition period, and his solicitors should have been aware that it was always open to the Defendant to seek a stay in favour of the Belgian court. However, the Defendant was dealing with the intended claim in England from 14 December 2020, when his letter of claim was acknowledged by AXA UK, who continued to act as agent for the Defendant in relation to the claim. There was no suggestion from that time until 18 January 2024, when the Claimant was served with the Belgian writ of summons, without prior notification, that the Defendant intended to challenge the High Court as the most appropriate forum. Accordingly the Defendant has by that omission led the Claimant to incur no doubt further significant costs in pursuing his claim in this jurisdiction.

The Claimant is also likely to have to make up any shortfall in legal costs in the Belgian proceedings from his damages, where there is no suggestion that similar funding arrangements to those he has with his English solicitors would be available.

I therefore conclude that the Defendant’s application be dismissed.