Wink v Croatio Osiguranje DD

This case concerns the meaning of “damage … sustained within the jurisdiction” in the jurisdiction ‘gateway’ under Ground 9(a) of paragraph 3.1(9) of CPR PD 6B ‘Claims in Tort’.

This is an application by the Defendant to set aside an Order dated 6th September 2012 granting the Claimant permission to serve the Claim Form and Particulars of Claim out of the jurisdiction (permission having been granted pursuant to the jurisdiction ‘gateway’ under Ground 9(a) of paragraph 3.1(9) of CPR PD 6B ‘Claims in Tort’) and to challenge the jurisdiction of the Court.

The Claimant, Michael Wink, is a British national domiciled in England. The Defendant, Croatia Osiguranje D.D., is an insurance company registered in Croatia.

On 5th September 2009, the Claimant was seriously injured in a road traffic accident whilst on holiday with his wife in the Republic of Croatia. He was riding a bicycle along a street called Ljube Mrakovcica in Moscenicka Draga when he was hit by a Honda motor vehicle (registration number RI744MA) driven by a Croatian national, Mr Roman Racki. He was thrown into the air and landed on the front of the vehicle. He suffered extensive head and facial injuries, ruptured his spleen and kidney and damaged his ribs and right hip. He was admitted to intensive care and underwent major surgery in a Croatian hospital, including the removal of his spleen and left kidney and a “Burr” hole evacuation for his subdural haematoma and subarachnoid haemorrhage.

The Claimant was medically repatriated to England accompanied by his wife 15 days after the accident. He was admitted to Wigan Royal Infirmary on 20th September 2009. He remained in the critical care unit for the first 10 days. On 30th September 2009, he was transferred to the Taylor Rehabilitation unit at Leigh Infirmary. He remained there for six weeks. He continues to receive treatment and medication for his injuries. His ability to work has been affected by his injuries.

The driver of the vehicle, Mr Racki, was at fault. Liability was admitted (subject to contributory negligence). The Defendant was the motor insurer for the vehicle and its driver. Mr Racki has since died for reasons apparently unconnected to the accident.

The Republic of Croatia is not currently a Member State of the European Union. It will accede to the EU on 1st July 2013. From that date, claimants such as the present will be able to bring proceedings in the English courts without permission (c.f. Case C-FBTO v Odenbreit [2007] ECR I-11321). However, for the present, English-domiciled claimants injured in Croatia must seek permission to bring proceedings against Croatian-domiciled defendants.

On 1st August 2012, the Claimant’s solicitors, Messrs. Pannone LLP, notified the Defendant’s solicitors, Messrs DWF Fisburns LLP, that the Claimant intended to issue proceedings in England and serve them upon the Defendant in the Republic of Croatia.

On 20th August 2012, the Claimant issued a Claim Form claiming damages in tort against the Defendant in respect of the accident. Under Croatian law, victims of road traffic accidents have a direct right of action in tort against defendant insurers. The claim arises notwithstanding the fact that it is brought directly against the insurer (Maher v Groupama [2010] 1 WLR 1564).

On 28th August 2012, the Claimant issued an application pursuant to CPR 6.36 and 6.37, seeking permission to serve the Claim Form and the Particulars of Claim out of the jurisdiction.

On 3rd September 2012, the Claimant commenced protective proceedings in the Croatian court to protect the Claimant’s position in the event that a successful challenge was made to the jurisdiction of the English court. The Claimant has undertaken that in the event that jurisdiction is confirmed in England, the Croatian proceedings will be discontinued.

On 6th September 2012, permission was granted to the Claimant to serve the Claim Form on the Defendant in the Republic of Croatia.

On 19th October 2012, the Claimant purported to effect service of the proceedings on the Defendant in Croatia. It is common ground that the purported service of proceedings in Croatia was invalid. Steps were taken to effect re-service in accordance with Croatian law. It was agreed, however, that this Court should nevertheless determine the question of jurisdiction and whether the Order granting permission to serve out was validly made. The Court is not concerned with the validity of the service itself.

On 25th October 2012, the Defendant filed an Acknowledgement of Service indicating an intention to contest jurisdiction.

On the same day, the Defendant paid 650,000 Kune (approximately £70,000) being the ‘undisputable ‘amount of the claim under Croatian law. It appears that such a payment is automatically generated by commencement of proceedings in Croatia. The payment was not accepted by the Claimant.

On 6th November 2012, the Defendant issued the present application seeking to set aside permission and jurisdiction; and served the application on the Claimant’s solicitors on 8th November 2012.

There are three requirements for permission to serve out under CPR 6.36 and 6.37. The burden is on the Claimant to satisfy the Court that:

To succeed in obtaining permission to serve out, the Claimant must have the “much better argument on the material available” (per Waller LJ in Canada Trust v. Stolzenberg (No. 2) [1988] 1 WLR 547).

As regards the first requirement, the Claimant relied upon the ‘gateway’ under Ground 9(a) of paragraph 3.1(9) of CPR PD 6B ‘Claims in Tort’ namely, “damage … sustained within the jurisdiction”. Miss Marie Louise Kinsler, Counsel for the Claimant, submitted that “damage” in Ground 9(a) meant some physical or economic harm and it mattered not that the initial accident and injury were sustained abroad. She relied upon the decisions of Nigel Teare QC, sitting as a Deputy High Court Judge (Teare J as he now is) in Booth v Phillips [2004] 1 WLR 3292 and Tugendhat J. in Cooley v Ramsey [2008] EWHC 129 (QB) (which decisions were followed by the Admiralty Registrar in Saldhana v Fulton [2011] 2 Lloyd’s Rep 206) to this effect. She submitted that the ‘gateway’ was satisfied in this case because, even though the accident itself occurred in Croatia, the Claimant nevertheless sustained physical or economic harm in this jurisdiction having returned to England two weeks after the accident and suffered much of the physical and mental effects of his injuries and sequelae in England, and sustained economic loss in this jurisdiction.

As regards the second requirement, Miss Kinsler submitted that this requirement was plainly satisfied because liability was admitted and the Claimant was entitled to recover substantial damages.

As regards the third requirement, Miss Kinsler submitted that the Claimant had a strong case on forum conveniens because the Claimant and majority of the witnesses on damages were based in England.

The Defendant submitted that the Court should decline jurisdiction in this matter because the first and third requirements were not satisfied. There was no challenge as regards the second requirement, i.e. that there was a serious issue to be tried.

Miss Sarah Crowther, Counsel for the Defendant, submitted that the Claimant did not satisfy ‘gateway’ 9(a) because, on the true construction of Ground 9(a), “damage” was sustained in Croatia, not in England and Wales. She challenged the correctness of the decisions in Booth v Phillips (supra) and Cooley v Ramsey (supra). Miss Crowther further submitted, in any event, that Croatia was the forum conveniens for the trial of this dispute.

JURISDICTION ‘GATEWAY’

Ground 9 of paragraph 3.1(9) of CPR PD 6B ‘Claims in Tort’ provides as follows (emphasis added):

“The claimant may serve a claim form out of the jurisdiction with the permission of the court under rules 6.36 where -

(9)

A claim is made in tort where-

(a)

damage was sustained within the jurisdiction; or

(b)

the damage sustained resulted from an act committed within the jurisdiction.”

It was common ground that the claim in this case fell to be characterised as tortious, notwithstanding that it is brought directly against the insurer (see Maher v Groupama [2010] 1 WLR 1564).

The case of Booth (supra) involved a claim brought by the widow executrix of a chief engineer who died on board a vessel in Egypt against the foreign owners and managers of the vessel. Teare J held that the English Court had jurisdiction inter alia because the claimant brought a claim in tort and “damage was sustained within the jurisdiction” and therefore the relevant ‘gateway’ under CPR rule 6.20(8)(a) was satisfied (CPR rule 6.20(8)(a) was the precursor to paragraph 3.1(9)(a) of CPR PD 6B set out above).

Teare J’s reasoning on construction was two-fold. First, that the words in sub-paragraph (8)(a) “damage was sustained within the jurisdiction” should be given their plain ordinary meaning, namely “harm which had been sustained by the claimant, whether physical or economic”. Second, that the absence of the definite article before the word “damage…” in sub-paragraph (8)(a) was to be contrasted with its use in sub-paragraph (8)(b) which referred to “the damage…” (see above). Teare J. observed (at paragraph [35]):

“This suggests that it is sufficient for the purposes of sub-paragraph (a) that some damage (not all of the damage) is sustained within the jurisdiction…”

Teare J went on to find that the widow’s claim in her own right under Fatal Accidents Act 1976 involved loss of her financial dependency upon her late husband and was financial detriment or “damage” within sub-paragraph 8(a) which was sustained in England where she lived. Teare J also held that one element of her claim as executrix of her husband’s estate under the Law Reform (Miscellaneous Provisions) Act 1934 included expenses of her husband’s funeral incurred in England and which, therefore, also amounted to “damage” sustained within this jurisdiction within sub-paragraph 8(a).

The subsequent case of Cooley (supra) involved a claim by a British citizen who had been left grossly handicapped by a road traffic accident in Australia. Following the accident, the Claimant had spent seven weeks in hospital and six months in rehabilitation in Australia before being repatriated to England. His parents in England were his main carers. Tugendhat J dismissed a challenge to the correctness of Booth (supra) and held, on the same basis as Teare J, that even though death or injury was suffered in a foreign jurisdiction, if some consequential economic loss was shown to have been suffered in England this was “damage…sustained within the jurisdiction” within CPR rule 6.20(8)(a) and sufficient to found jurisdiction here.

Miss Crowther, Counsel for the Defendant, submitted that “damage… sustained within the jurisdiction” meant direct, not indirect loss flowing from the wrongful act. She argued that since the direct injury in this case was sustained in Croatia, sub-paragraph (a) was not satisfied and jurisdiction should have been declined. Fundamental to her case was a spirited attack on the correctness of Booth v Phillips (supra) and Cooley v Ramsey (supra) which she did not shrink from saying should not be followed.

Miss Crowther summarised her submissions in support of her construction in the form of six propositions:

Miss Crowther’s narrow construction, which limits the meaning of “damage” to direct damage only, suffers from a number of obvious problems.

The first is that it there are no limiting words in sub-paragraph (a) which would justify such a narrow meaning and exclude indirect damage. The word “damage” is not modified or trammelled in any way. The ordinary and natural meaning of the word“damage”, in my judgment, is any damage flowing from the tort. In the words of Teare J at paragraph [37] in Booth, “damage” in this context means any “physical or economic” harm, i.e. direct or indirect.

Second, Miss Crowther’s construction is tantamount to saying that “damage” is sustained only where the injury occurs. This is the way the Defendant’s argument was originally put in paragraph 22 of the Defendant’s Skeleton (viz. ‘the proper meaning of Ground 9(a) is that in a personal injury accident, damage is sustained where the injury is sustained’). However, this is plainly not the case in many instances. The present case is a paradigm example: the sequelae flowing from the original accident or injury in Croatia, continued to be suffered long afterwards in England in the form of substantial pain and suffering and economic loss.

Third, I reject Miss Crowther’s submission that the simple meaning found by Teare J in Booth (supra) that “damage” in sub-paragraph (a) means ‘some damage’, direct or indirect, requires re-writing or additional words to be inserted. It clearly does not. Indeed, it is Miss Crowther’s construction which arguably requires a re-writing of sub-paragraph (a) so as to substitute the words “the injury” for the word “damage”, i.e. so as to read “the injury was sustained within the jurisdiction” (viz. including the definite article). Such a re-writing would be unwarranted.

I turn to Miss Crowther’s particular propositions.

Miss Crowther’s proposition (1), that ‘the natural and ordinary meaning of “damage” means sufficient harm or loss to make the wrongful act a tort’, requires reading in words which are not there, e.g. ‘sufficient damage to make the wrongful act a tort…’ . There is no warrant for such additional words. A similar submission to Miss Crowther’s proposition (1) was rejected by Teare J who pointed out in paragraph [35] of his judgment that “[t]here is no reference to damage which completes the cause of action”. Teare J also pointed out that section 2(7) of the Civil Procedure Rules Act 1997 enjoined the Rule Committee “to make rules which are both simple and simply expressed”. In my judgment, Miss Crowther’s citations from Lord Hoffmann in Harding v Wealands (supra) and Lord Steyn in Royal Brompton NHS Trust (supra) are in different contexts and not germane. Lord Hoffmann was explaining the difference between “damage” and “damages” in the context of elucidating the distinction between the cause of action and remedy (paragraph [24] of Harding). He was not suggesting that “damage” was somehow ‘indivisible’, as Miss Crowther argued, i.e. not capable of division by reference to direct and indirect losses. It plainly is. The fact that the tort may be complete on proof of loss or damage, does not mean that jurisdiction cannot properly be founded by proof that some of that loss or damage occurred in the jurisdiction in question (c.f. Metall v Rohstoff (infra)).

Miss Crowther refers in her proposition (2) to the decision of the Court of Appeal in Metall v Rohstoff (supra). The Court of Appeal in Metall v Rohstoff was considering the construction of the precursor to the present CPR, namely RSC Order 11, rule 1(1)(f) which referred to a claim “founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction” (emphasis added)). In my judgment, the decision of the Court of Appeal in Metall v Rohstoff strongly supports the construction adopted in Booth (supra). As Teare J pointed out (in paragraph [39] of Booth), the omission of the definite article in CPR r. 6.20(8)(a) “seems to reflect the view expressed by the Court of Appeal”. Further, in my judgment, the direction of travel of the Rules of Court was clearly to maintain a broad, rather than a narrow, construction of “damage” by discarding the definite article to make it clear, selon Metall v Rohstoff, that that not all the damage must have been sustained within the jurisdiction.

Miss Crowther’s proposition (3), that indirect damage is ‘too uncertain’ a factor to found jurisdiction, echoes a similar submission made in Booth that the claimant’s construction was ‘improbably wide’. Teare J dismissed the submission on the basis that it ignored the fact that before jurisdiction is exercised the court must be satisfied that England is the forum conveniens, i.e. the jurisdiction in which the case may be most suitably tried for the interest of all the parties and for the ends of justice. In my judgment, Miss Crowther’s proposition (3) suffers from the same objection as identified by Teare J. Miss Crowther’s citations from ABCI v Banque Franco-Tunisienne (supra), Marinari (supra), Rome II, Van Breda v Club Resort (supra) are, again, in different contexts and not helpful. The latter Canadian authority, Van Breda v Club Resort, was not construing the meaning of a rule but merely exploring the private international law position in the absence of any specific jurisdictional rule. Such general Commonwealth authorities cannot be determinative of the construction of an English rule of procedure (c.f. Teare J in Booth).

Miss Crowther’s proposition (4), that ‘a wide construction would offend against the rule that ‘exorbitant’ jurisdiction should be construed narrowly’, assumes that the Booth construction puts a ‘gloss or extension’ on the natural and ordinary meaning of the word “damage”. In my judgment, it does not. Indeed, as explained above, it is Miss Crowther’s narrow construction which requires additional words to be read in and adds an unjustified gloss. Miss Crowther criticised Teare J for not having expressly referred to the rule of construction in The Hagen and The Siskina (supra) upon which she places such great store. Given that the construction was pellucid, there was no need for him to do so.

Miss Crowther’s proposition (5), that Ground 9(a) ‘falls to be read consistently with Article 5(3) of Brussels I’, was comprehensively dismissed by Tugendhat J. in Colley (supra) (at paragraphs [35]-[46]). In my judgment, Tugendhat J was right to do so. The case law of the Court of Justice (“CJEU”) on Article 5(3) of the Brussels Convention/Brussels I Regulation is not relevant to the construction of Ground 9(a) because the two schemes are fundamentally different in structure and policy. The EU rules seek certainty at the price of inflexibility: thus forum conveniens arguments are not permitted (see Owusu v Jackson [2005] ECR I-01383). By contrast, in respect of non- Regulation countries, the common law rules adopt a more flexible legal framework which admits forum conveniens and makes the assumption of jurisdiction discretionary.

Miss Crowther’s proposition (6), that ‘damage in dependency or bereavement claim under the FAA 1976 arises in the jurisdiction where the bereaved or dependent is domiciled at the time of death’, does not take the Defendant’s case any further. In the present case, the Claimant’s loss of earnings on his injuries arose in the jurisdiction in which he lived, namely England. Equally, the Claimant continued to sustain pain and suffering in this jurisdiction. Miss Crowther argued that Teare J did not have the distinction between the claims under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 in mind. He clearly did (see paragraph [35] of Booth (supra)); as Tugendhat J. found (see paragraph [23] of Cooley (supra)).

Many of Miss Crowther’s criticisms of Teare J’s decision in Booth amounted to a re-heat of similar arguments run by the defendant in Cooley (supra). These were all carefully considered and dismissed by Tuegndhat J. I respectfully adopt the analysis of Tugendhat J in Cooley. In my respectful judgment, the decision of Teare J in Booth was correct and his reasoning impeccable.

In conclusion, I reject Miss Crowther’s propositions and her narrow construction of the ‘gateway’ under Ground 9(a).

SERIOUS QUESTION TO BE TRIED

As stated above, there was no challenge as regards the second requirement, i.e. that there was a serious issue to be tried.

DISCRETION: FORUM CONVENIENS

I turn to the third requirement, forum conveniens. The Claimant must satisfy the Court that England and Wales is the proper place in which to bring the claim, where the case can suitably be tried for the interests of all the parties and for the ends of justice.

The principles governing the question of forum conveniens are well-established. The claimant must show “good reason” why service of process on a foreign defendant should be permitted. When considering this question, the court must take into account the nature of the dispute, the legal and practical issues involved, and such questions as local knowledge, availability of witnesses and expense (see Dicey, Morris and Collins, The Conflict of Laws, 15th edition at 12-052 to 054; Amin Rasheed Shipping v Kuwait Insurance [1984] 1 AC 50; Spiliada Maritime Corporation v Cansulex [1987] 1 AC 460).

Liability is admitted, so the trial will be limited to the assessment of the quantum of damages.

The applicable law is Croatian law pursuant to “Rome II” (Regulation 864/2007) (Case C-412/10 Homawoo [2012] I.L. Pr. Law 12 17.11.11). Rome II has universal application (Article 3). The applicable law is the law of the country in which the damage occurred, namely, Croatian law (Article 4(1)). Croatian law therefore governs the assessment of damage as well as the identification of recoverable heads of loss, but not evidence and procedure (Article 1(3) and Article 15(c))). The actual circumstances of the Claimant – including the actual costs incurred and losses suffered by the Claimant as a result of his injuries - are to be taken into account in the assessment of his damages (Recital 33 of Rome II).

It is right to say, as Lord Mance observed in VTB Capital Plc v (1) Nutritek International Corp & Ors [2013] UKSC 5, that “it is generally preferable, all things being equal, that a case should be tried in the country whose law applies” (paragraph [46]). In my judgment, however, it is unlikely that any significant issues of Croatian law will arise in this case, or issues which would not be reasonably capable of determination at a trial in this jurisdiction using experts.

I accept the evidence of the Claimant’s Croatian law expert, Maya Zadravec Boloban, that Croatian law of damages is not dissimilar to English law of damages. Like English law, Croatian law provides for full compensation for claimants who have suffered damage at the hands of a tortfeasor. Croatian law also provides for recoverable heads of damage recoverable which are similar, if not identical, to those recoverable under English law, namely, loss of earnings, care, costs of medical treatment, costs of aids and appliances and compensation for non-pecuniary losses.

I accept the evidence of the Claimant’s expert, Ms Boloban that there are some concepts of Croatian law of damages with which Croatian judges are naturally more familiar, including the assessment of damages for “immaterial damage” pursuant to the Croatian “Orientation Criteria” under Article 200 of the Croatian Law of Obligations. In my experience, however, English Courts are well used to considering and applying such foreign concepts.

Given the similarities between Croatian and English law, the issues between the parties in this case are likely to be similar to those between any Claimant and Defendant in an assessment of damages in these Courts.

In the unlikely event that it became apparent that there was a material difference between English and Croatian law, expert evidence of Croatian law could be obtained in the usual way. But I doubt whether there will be any real dispute as to the Croatian law in the context of this personal injury claim.

Questions of evidence and procedure are excluded from the ambit of Rome II (Article 1(3)). Where a foreign law governs the assessment of damages the question of what evidence is required is a matter for English law as the law of the forum (Wall v Mutuelle de Poitiers [2013] EWHC 53 (QB)).

In my judgment, the main evidentiary issues at any damages trial are likely to revolve around the factual and medical evidence and the nature and extent of the Claimant’s injuries and sequelae, and the true quantum of the Claimant’s loss of earnings. The key witnesses at the trial are, therefore, likely to be: (1) the Claimant, (2) his wife, Mrs Wink, (3) medical experts who treated the Claimant, (4) medical experts giving their prognosis, (5) accountancy experts, and (6) employment experts.

All these witnesses are, or are likely to, resident or based in England. Accordingly, since the evidence is primarily located in England, the advantages of a trial in England in terms of cost and convenience are clear.

The following factors all point to England being the forum conveniens. First, Mr Wink is British citizen and lived in England before and after the accident; and accordingly, this not a case of forum shopping. Second, Mr Wink has suffered the consequences of his injury in England for more than three years and continues to suffer them here; whereas he was in Croatia temporarily on holiday for just over 2 weeks. It would be an upheaval for him to have to attend a trial in Croatia. Third, an English Court would be better placed to assess Mr Wink’s losses which will continue to be suffered here. As Recital 33 of Rome II emphasises, the actual circumstances of the Claimant are essential elements in the assessment of his loss (see above). Fourth, a trial in England would substantially reduce, the need for translation and interpretation of evidence which would be required if a trial were to take place in Croatia.

Further, in my judgment, neither the commencement of the ‘protective’ proceedings in Croatian by the Claimant nor the payment of the ‘undisputable amount’ by the Defendant serves materially to affect forum non conveniens position or my decision on discretion.

In conclusion, in my judgment, the Claimant has demonstrated that England is the forum conveniens for the trial of the action and shown good reason why service on the Defendant should be permitted out of the jurisdiction. In my view, it would be appropriate for the English Court to exercise its discretion to grant jurisdiction in this case and permit service of the proceedings on the Defendant out of the jurisdiction.

In the result, for the reasons set out above, I dismiss the Defendant’s application and confirm the Order dated 6th September 2012 granting the Claimant permission to serve the proceedings on the Defendant out of the jurisdiction in the Republic of Croatia.

I am grateful to Miss Kinsler and Miss Crowther of Counsel for their able submissions.