Sylvie Klifa v Simon Slater & Anor

The Application before me arises as one of the consequences of Brexit. On 27 January 2018 in the ski area of Courchevel in France, the First Defendant (who is insured by the Second Defendant) negligently skied into the Claimant causing her significant personal injury. The Claim Form was issued on 14 January 2021, just within the three year limitation period of this jurisdiction but just after the Brexit “Exit Day” (of 31 December 2020) when relevant transitional arrangements, including the continued effect in England & Wales law of the European Union Judgments Regulation 1215/2012 (“the Judgments Regulation”) ceased to apply. In consequence, the Defendants have brought an Application by Application Notice dated 29 January 2021 for this court to decline jurisdiction and the Claim to be stayed on grounds of forum non conveniens on the basis that it is the courts of France which are “the most appropriate forum”. The matter is thus itself transitional in that it concerns the consequence of a tort which occurred whilst the Judgments Regulation did apply.

The skiing accident (“the Accident”) took place on 27 January 2018 and when (and as still is the case) the Claimant was domiciled and resident and habitually resident in France (in the Orleans area), the First Defendant was domiciled and resident (they being on holiday) in England & Wales, and the Second Defendant was domiciled in England & Wales.

It is common-ground that the Accident was the sole fault of the Defendant and that the Claimant was injured as a result. Thus the question which remains is the quantification of the loss which the Claimant has suffered (together with interest) and which it is common-ground (under the Rome II Regulation; see paragraph 1 of its Article 4 as the Accident, and resultant damage, took place in France and the Claimant is habitually resident in France) is to be governed as a matter of substantive law by French law. However, procedural law, including as to recovery of legal and other costs of the litigation, is a matter for the lex fori that is the law of the place in whose courts the proceedings are brought.

The quantum of the Claim is not entirely clear but the Claimant seems to be advancing a claim within something of a range of £150-200,000 inclusive of interest.

While the Judgments Regulation was applicable, the Claimant was entitled to bring the Claim in the courts of England & Wales under paragraph 1 of its Article 4 as the Defendants are both domiciled in this jurisdiction and (as then was) Member State; although the Claimant could have sued in France as the place in which the damage had occurred (Article 7(2)). Moreover, the Judgments Regulation overrode any principles of forum non conveniens so that a claimant had a right to pursue the claim in any court permitted by the Judgments Regulation whether or not it was the most (or even a) convenient or appropriate forum – see Owusu v Jackson [2005] QB 801; and where proceedings were permitted and pending in two Member States then it was the courts of the Member State which was “first seised” which were to determine the matter again whether or not that was the most (or even a) convenient or appropriate forum (see Articles 29 and 30 onwards). However, as a result of the transition provisions contained in Article 67(1) of the Withdrawal Agreement of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Committee (2019/C384/1/01) (‘the Withdrawal Agreement’) ceasing to have effect, the Judgments Regulation has, following Brexit, ceased to apply in relation to Claims issued on or after 1 January 2021.

The Claimant’s solicitors sent a Letter of Claim to the Defendant’s solicitors on 20 April 2018 referring to her having suffered a displaced fracture of the right shoulder and an undisplaced fracture of the pelvis. Liability was admitted by an email of 11 June 2018, and the Defendant’s solicitors wrote to request medical evidence by email of 11 July 2018 resulting in correspondence in which the Claimant’s solicitors explained there would be a delay due to the need to experts to identify the “date of consolidation” in French law to which I refer below.

The Claimant’s solicitors obtained medical-legal reports from a Dr Daniel Lerede (General Practitioner and qualified in medico-legal compensation of personal injury) and a Professor Luc Favard (and expert in orthopaedics) and sent them with some documentary evidence and a “without prejudice” Schedule of Loss to the Defendant by letters of 29 May 2020 and 18 June 2020. The Defendants’ solicitors responded to say that they were seeking their own French law expert advice.

By letter of 25 August 2020 the Defendants’ solicitors wrote to say that they were instructed to accept service of proceedings.

By email of 15 September 2020 the Claimant’s solicitors made a settlement offer to the Defendants’ solicitors and also requested an interim payment which resulted in a response of that day to the effect that instructions were being taken but nothing further.

By email of 15 December 2020 the Claimant’s solicitors (expressing disappointment that they had not heard further) sought the names and addresses of the Defendants (and referred to the fact that they did not know the actual identity of the Second Defendant), and the Defendant’s solicitors responded by email of 22 December 2020 to confirm the address of the First Defendant and to supply the name and address of the Second Defendant.

The Claim Form was issued on 14 January 2021 with a statement of value of “expected to be over £200,000”.

The Claim Form was served on 15 January 2021. An Acknowledgment of Service indicated an intention to contest jurisdiction was filed on 29 January 2021 and the Application to contest jurisdiction was issued on 12 February 2021. It is common-ground that the Defendant adopted the correct process and complied with the requisite time-limits under CPR Parts 10 and 11.

The Claim Form and Particulars of Claim were accompanied by finalised medico-legal reports from Dr Larede and Professor Favard and also by a Schedule of Loss. As to these:

No suggestion has been made to the effect that those documents do not represent the general approach of French law and procedure to the assessment of damages in a claim such as this; although, of course, no admissions have been made as to any particular or head of damage or loss.

The Application Notice was supported by a witness statement of Nathaniel Martindale (“Martindale”) of the Defendants’ solicitors of 12 February 2021. In it, he gave a list of what he said were relevant factors and which I will deal with when considering counsel’s submissions. It was responded to by a witness statement of Maud Lepez (“Lepez”) of the Claimant’s solicitors of 8 October 2021 and who is a qualified French Avocat and who responded to the list of factors identified by Martindale and advanced further asserted factors said to favour the Claim being progressed in this jurisdiction, and also a supplemental witness statement of Lepez of 29 October 2021. I will deal with these also when considering counsels (Mr Doherty for the Claimant and Ms Prager for the Defendants)’s submissions.

It was common-ground (in my judgment correctly) that as the Defendants had been served within this jurisdiction:

I was further taken to material passages in Spiliada in the judgment of Lord Goff as follows:

While I have borne in mind all of the above, I draw in particular from it that:

I was also taken to VTB Capital v Nutritek International [2013] 2 AC 337 where at paragraph 51 it was stated that:

“51.

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.”

That case was very different from this one but the citation makes clear that the place of the tort (here France) is something of a starting point but need not be more than that depending on the individual circumstances.

I was also taken to International Credit v Adham [1999] I.L.Pr 302 where at paragraph 25 it was said:

“[25] The new defendants contend that in the Spiliada case, Lord Goff, in dealing with the question of the treatment of what had become known as a legitimate personal or juridical advantage, was in terms considering the trial of the action and not its aftermath. It is pointed out, correctly, that all the examples he gives relate to what might be described as the pre-judgment stage. I have no hesitation, though, in rejecting the submission. Litigation is not an end in itself. A plaintiff is concerned not only to obtain judgment in his favour, but to enforce it by whatever means are available to him so as actually to receive the compensation the court thought fit to award him. Advantages in the mechanics of enforcement in one jurisdiction, as opposed to another, are no less advantageous than advantages in the procedure whereby the judgment is obtained in the first place. The fact that Lord Goff did not advert to them expressly because they did not arise in the case with which he was dealing is no reason for denying legal recognition to the factually obvious.”

I am not entirely clear as to whether this enforcement advantage is being held as being relevant to the first stage “more appropriate forum” or to the second stage “achieving the ends of justice”. The above citation appears to relate it to Lord Goff’s references to “personal or juridical advantage” and thus to the second stage. However, it is difficult to see why it should not also be relevant to the first stage as the citation requires the litigation to be seen as a whole (rather than splitting the substantive determination element from the enforcement element) at least where, as here, the Defendants are located within this (enforcement) forum and thus where the potential for enforcement here enhances the relevance to “appropriateness” of their being located here.

Specifically in relation to the conducting by a court in this jurisdiction of a quantification of damages in accordance with French law, I was taken to Wall v Mutuelle de Poitiers [2014] 1 WLR 4263 (Court of Appeal).

The actual dispute which was determined in that appeal was as to how and what relevant expert evidence was to be adduced. It was framed by Longmore LJ as follows in paragraph 3:

“ 3. The dispute between the parties relates to the way in which expert evidence is to be adduced. The claimant, in the usual English way, has asked for permission, pursuant to CPR Pt 35 , to call expert evidence in a number of relevant disciplines. The defendant insurers say that that is not appropriate since the applicable law is the law of the country in which the damage occurred and is thus French law. Under French law the court selects one (or sometimes) two medico-legal expert(s) to assist the judge, although such expert(s) may have recourse to experts in other disciplines if he/they feel it necessary and may incorporate their opinions in the report made for the court. These sub-experts are known to French lawyers as “sapiteurs”. There is usually very limited opportunity to cross-examine the expert chosen by the court or his sapiteurs.”

Longmore LJ held at paragraphs 12-15 that the expert evidence, albeit regarding French law and French legal matters, should take the form required by and be adduced in accordance with the procedural law of this jurisdiction even though this might result in a different damages award from what would have been obtained in France:

“12.

I have no doubt that Mr Weir's arguments should prevail. It cannot be the case that the Regulation envisages that the law of the place where the damage occurs should govern the way in which evidence of fact or opinion is to be given to the court which has to determine the case. An English court is ill-equipped to receive expert evidence given in the French manner. First, our rules of disclosure will not be the same as they are in every foreign country. It would be very odd if the rules of disclosure were not matters of “evidence and procedure”; but on the assumption that they are, how do they apply to a French-style single expert report? Not only would a French expert not regard himself as bound by any English rule; neither would he be able, in any sensible way, to take advantage of the English rules if he wished to do so.

13.

Second, our rules of evidence contemplate the giving of oral evidence by a procedure of examination-in-chief, cross-examination and re-examination of witnesses. Even if the author of a French-style expert report were prepared (as he would have to be) to submit to such a procedure, it would be meaningless, to the extent that his or her report incorporated material outside his or her personal expertise.

14.

Third, I have little doubt that, in the reverse situation, a French court would think it unhelpful (to put it mildly) to be presented with English-style expert evidence about the consequences of an English accident to a French driver or motorcyclist, in the form of reports from experts in (say) ten disciplines presented by each party and having to choose between them without resort to its own method of dealing with expert evidence.

15.

In these circumstances it is indeed inevitable that the same facts tried in different countries may result in different outcomes and I am unable to accept Mr Browne's starting point that the English court must strive to reach the same result as a French court would, let alone his finishing point that evidence must be given to the English court in the form of a French-style expert report…

18.

In this extract the author distinguishes between the “basis” of assessment and the “mode” of assessment. The fact that he explains the basis of assessment as including “judicial conventions and practices which will facilitate the assessment of damages … in a manner which reflects, as closely as possible, the result that would be achieved in a court of the country whose law applies,” is not a statement that the result which would be achieved in the foreign (here, French) jurisdiction must be achieved in England which would, indeed, contradict para 3.39. Rather it is no more than the reason why it is desirable that “judicial conventions and practices” of the applicable law should apply in the court of forum, a matter to which I will have to return. That is further shown by the author's view (with which I would respectfully agree) that proof of the underlying facts “remain[s] a matter for the law of the forum”.

19.

This is a matter of some importance because experts in personal injury cases will, not unusually, give evidence of matters of fact as well as of opinion. It will, for example, be necessary for the court to receive evidence *4271 of what care or what accommodation the claimant needs. This will be partly a matter of fact relating to the claimant's current condition and current accommodation and partly a matter of opinion relating to the current and future needs of the claimant with his current condition and his current accommodation. It is convenient for such evidence to be given in a single care report or a single accommodation report, as the case may be. If the method of proving the relevant facts is for the court of the forum, it must follow that the method of proving any relevant opinion must be for the court of the forum also.”

I would add, and which is relevant in this case and to which I will come, that, in consequence of the difference in their methods of adducing expert evidence, the English & Welsh jurisdiction procedural approach is likely to be considerably more expensive than that in France, and which is reflected in the costs rules and approach of each country.

Longmore LJ then went on to deal with the fact that the English & Welsh courts would, nonetheless, apply the Dintilhac approach for quantification even though it represents, strictly speaking, “guidelines” rather than hard-edge law. It was said that:

“24.

I prefer the view of Professor Dickinson and Dicey to that of the authors of Cheshire . It seems to me that in the context of a Regulation (or Convention) intended to have international effect, a narrow view of “law” is inappropriate. If there are guidelines, even if they can be disapplied in an appropriate case, judges will tend to follow them. No doubt one can call this “soft law” rather than “hard law” but it is law nevertheless. Any foreign judge having to apply English law on the assessment of damages would find the Judicial College guidelines helpful as a starting point. If, therefore, French law had the equivalent of these guidelines, I would hold that the master could permit evidence of them to be given by an English court.”

Longmore LJ then referred to the evidence of French medico-legal experts, and went on to say:

“26… It is unnecessary to set out Monsieur Dintilhac's list of personal damages “of the direct victim” in full, (they are in fact set out in Annex 1 to the report of the defendants' expert, Monsieur Pierre Jung) but, as stated by M Charpentier, it is divided into 12 pecuniary losses (patrimonial) and 13 non-pecuniary (non-patrimonial) losses and that division is then further sub-divided into temporary (before consolidation) losses and permanent (after consolidation) losses. There is no attempt to give a figure or even a method of calculating the various losses identified.

27.

At a later stage of his report, however, M Charpentier isolates, by way of example, a particular loss (permanent aesthetic loss) and in respect of that loss gives figures normally adopted by the Paris Court of Appeal in 2011/2012 on a scale of one to seven with a final category of “wholly exceptional” being €80,000 and over. This is just one example applicable to one head of loss out of M Dintilhac's 13 separate heads of non-pecuniary loss.

28.

To the extent that these are figures normally adopted by the Paris Court of Appeal for the various heads of non-pecuniary losses in M Dintilhac's list, I can see that the combination of those heads and such figures could well amount to the equivalent of the Judicial College guidelines. I therefore consider that it would be appropriate for the master to permit either M Charpentier or M Jung (or, if necessary, both) to place evidence of such heads and figures before the English court. It seems to be agreed that French judges have a discretion to depart from these guidelines in an appropriate case and no doubt the English judge trying quantum will feel he has the same discretion. But he should, at least, be informed of what a French judge would regard as an appropriate starting point.

29.

In the light of recital (33) to the Regulation, I do not consider that the same evidence is necessary or called for in respect of the pecuniary losses suffered by the claimant.”

The other members of the Court of Appeal concurred with Longmore LJ’s conclusions. Jackson LJ (who noted the costs consequences following on from this) said:

“43.

Secondly, it is unrealistic and inefficient to expect courts to adopt the evidential practices of a different jurisdiction when determining questions of fact. The courts of each European jurisdiction have developed evidential practices with which both their judges and practitioners are comfortable. Germany, for example, has developed the “Relationsmethode”, in which the judge exercises a high degree of control over the evidence to be received as the case develops. The Netherlands have a different procedure, although there too the judge takes a dominant role in the questioning of any oral witnesses. France has the procedures described by the experts in this case. If an Englishman is injured in one of those jurisdictions and sues there, it is inconceivable that the local courts will meekly adopt English evidential practices. There is no way that those courts would countenance several days of oral evidence and extensive cross-examination of experts in order to assess quantum of damages. The judges and practitioners do not have the requisite experience to adopt our evidential practices. We do not have the requisite experience to adopt theirs.

44.

The costs rules of each jurisdiction are linked to the evidential practices. Germany, for example, has a scheme of fixed costs for all categories of litigation. This is set out in (a) the Court Fees Act and (b) the Lawyers' Fees Act. A scale of fees is prescribed according to the type of case, the sum in issue and the stage at which it is resolved. For example, in a commercial claim for €30m, the costs payable by the losing party at trial are €558,510·50. This statutory costs regime would become unworkable if the German courts were suddenly required to adopt English evidential practices.

Conclusion

45.

In the present case the court should follow English evidential practices. Accordingly the court should follow its usual practice in relation to receiving expert evidence concerning the extent of the claimant's injuries, the amount of the claimant's financial losses (in so far as such losses are recoverable under French law) and similar matters.

46.

In the result, therefore, the court will establish the facts using English evidential practices. It will then assess damages in accordance with French law (“law” being broadly construed, as set out above).”

Christopher Clarke LJ said:

“48.

Any question as to (i) the extent to which, and the form and manner in which, expert evidence may be given, (ii) how many experts may give evidence, and (iii) whether such evidence shall be the subject of cross-examination is, almost self-evidently, an issue of evidence and procedure, to which, by virtue of article 1(3), Parliament and Council Regulation (EC) No 864/2007 does not apply. What is less clear is what evidence the English court should permit in a case where damages are to be assessed under French, or any other foreign, law.

49.

I agree with Longmore and Jackson LJJ that the evidence should not be confined to rules which dictate a result or to black letter rules; but should extend to judicial conventions and practices such as tariffs, guidelines or formulae used in practice by foreign judges in the calculation of damages, as suggested by Professor Dickinson.

50.

In England and Wales damages in a personal injury case would be assessed by reference to: (a) common law rules and principles as to what measure of damages is applicable and the permissible heads of recoverable loss; (b) statutory provisions; (c) over-arching decisions of the courts, eg Simmons v Castle (Practice Note) [2013] 1 WLR 1239 (providing for a 10% increase in general damages from 1 April 2013); (d) guidance from decided cases on the appropriate level of damages for different injuries; and (e) published guidelines such as those of the Judicial College or tables such as the Ogden tables.

51.

French law as to the assessment of damages should not be treated as any more restricted than as set out in the previous paragraph in respect of English law. “Law” should be interpreted so as to cover whatever rules, principles, practices and guidance a French court would adopt in making its assessment. For that purpose it is necessary for the English court to understand what is the reach of their application.

52.

The problem is illustrated by the Dintilhac Headings (“the headings”). They are, according to the evidence of Monsieur Charpentier, without binding force but used in practice by lawyers, magistrates and insurers. Current case law makes use of the list. The evidence of Monsieur Jung for the defendants is that they are generally followed by all courts and Courts of Appeal.

53.

A possible approach is to say that because the headings have no binding force an English judge applying French law is entitled to ignore them and award damages by adopting an entirely English approach to the assessment of the various heads of damage claimed which, as is common ground, are all heads recoverable in principle under French law. This is, in my view, too narrow an approach. In assessing damages in accordance with French law the English judge should endeavour to decide how, in practice, a French judge would assess damages. If that is, as it appears to be, by reference to the headings, the English court should adopt the same approach, although, to the extent that French judges have a discretion to adopt a different approach, an English judge will be similarly entitled. For that purpose it would be helpful to know the circumstances in which they would or might consider it appropriate to do so in order to see whether they are applicable to the present case.

54.

The Paris Court of Appeal is said normally to adopt guidelines on quantum for loss under at least one of the headings and it may well be that it does so for all the others. Evidence of the figures normally adopted by the Paris Court of Appeal in relation to the headings is something of which evidence ought to be admitted. Such normally adopted figures: (i) do not appear to me to be different in kind to the guidelines published by the Judicial College which, themselves, “distil the conventional wisdom contained in the reported cases [and] supplement it from the collective experience of the working party” (see the foreword to the 1st edition (1992) by Lord Donaldson of Lymington MR); and (ii) are an indication of what, applying French law, the Court of Appeal regards as appropriate figures. The judge assessing non-pecuniary loss should have regard to any prevailing tariffs to the same extent as a French judge would do so. That renders it desirable to know in what circumstances the Paris Court of Appeal would or might not adopt such figures; and the circumstances in which that court, or judges at first instance, depart therefrom.”

It flows from the above that if the matter remains in this forum:

The parties have in the witness evidence and counsels’ written and oral submissions (all of which I have borne in mind even if I do not mention them specifically in this judgment) sought to identify material factors regarding both the “more appropriate forum” and “achieving the ends of justice” aspects.

Martindale and Ms Prager of counsel for the Defendants identify (and I do not think that any of these matters were disputed (and in any event I find them to be the case)):

Lepez and Mr Doherty of counsel for the Claimant identify (and I do not think that any of these matters were disputed (and in any event I find them to be the case)):

The parties were more at issue on particular matters, being as follows:

The Claimant further relied on Lepez’s second witness statement to contend that in French procedure, medico-legal experts are appointed and instructed by the Court (and not by the parties), although at the Claimant’s expense and so that the equivalent to their fees are recoverable from a losing Defendant.

The Claimant went on from this to submit, as stated by Lepez, that that procedure would mean that the Claimant could not use in French proceedings the reports of Dr Larede and Professor Favard, and which reports would be wasted. Ms Prager disputed this in her Skeleton, stating that it might be possible for the French court to instruct those medico-legal experts and that the Defendants were taking advice as to this from their own French lawyers, but did not produce any expert evidence to contradict it, and did not object to Lepez’s second witness statement being admitted. I have no reason or material upon which to reject Lepez’s opinion, and accept it.

The Claimant further submitted that if this Claim was stayed then she would suffer a major costs disadvantage (it is common-ground that there would be no limitation problem in proceedings now being brought in France) as (and which I find to be the case on the evidence as stated in Lepez’s second witness statement which has not been controverted) the costs recoverable in French law by a successful personal injuries claimant are distinctly limited in amount (and only in exceptional cases will recoverable lawyer’s and own expert’s fees exceed a band of €2-5,000 and which will be lower than the actual costs incurred even of only French lawyers before those of Dr Larede and Professor Favard). This is due to differences in the litigation procedures themselves which lead to much less lawyers’ (and less experts’) involvement (and consequent work and costs) in France than in England & Wales, differing approaches between jurisdictions as to quantification of recoverable costs, and also the different Pre-Action procedures and where the English & Welsh Personal Injuries Pre-Action Protocol (regarding the steps that the court normally expects to be taken prior to the institution of proceedings (see its paragraph 1.4.1), and existing under the Pre-Action Protocols Practice Direction) “front-loads” work and costs in an effort to enable the matter to be resolved by pre-action negotiation and avoid the need for expensive proceedings and judicial resolution.

The Claimant further submitted that the Defendants’ position was somewhat tactical, and seeking to impose a collateral disadvantage on the Claimant by way of the effect of Brexit and the Withdrawal Agreement, and including as:

The Defendants’ response to this was, in effect, that they were entitled to take their stance on the law, and that they had at all times simply conducted their case on the basis of the then applicable law i.e. what it was before and after 31 December 2020, and that the Claimant could have simply issued her Claim by then and so that any trap she had fallen into was of her own making and she, and her lawyers, should have been aware of its importance. The Defendants could not have opposed the litigation taking place in England & Wales prior to 31 December 2020 (see Owusu), but can do so now and insist that it take place in France and where the Claimant could perfectly well have issued this Claim, and where (as I accept and so I can make no finding either way) there is no evidence that proceedings in this forum would reach trial faster than in France.

It seems to me that applying the analytical approach set out in Paragraph 18 above, I have first to consider whether the Defendants (having been properly sued and served in this forum) have demonstrated that France is clearly and distinctly the more appropriate forum. In my judgment, only certain factors are relevant to this stage, others being relevant to the “achieving of the ends of justice” second stage, although, in the alternative, I have also considered those factors and as to whether they would have led me to a different conclusion were they to be relevant to the first stage in law.

I have borne in mind all the parties’ contentions and the evidence, and consider the following to be particularly relevant factors:

Having balanced those factors together, and borne in mind all the evidence and counsel’s submissions, I can see force in Ms Prager’s submissions for the Defendants that France is the more appropriate forum, and, if the question before me was an open one of which forum was simply the more appropriate, I suspect that I would find it to be France. However, where the Defendants are domiciled in this forum, as is the case, and thus the proceedings were rightly issued and served here, the question as set out in Spiliada is whether the Defendants have shown that France is “distinctly” or “clearly” the more appropriate forum, and which is a higher test for them to satisfy.

I have concluded, albeit only on balance, that the Defendants have not satisfied that test. This is in particular because:

I make clear that I have not taken the factors which I refer to below as relevant to the “second stage” into account in deciding against the Defendants. However, I consider that those various factors, if relevant at the first stage, would merely reinforce my above conclusion as to the first stage.

In case I am wrong as to the first stage (i.e. that it has been shown that France is distinctly or clearly the more appropriate forum – and which I will assume for the purposes of this second stage), and because the correct test may be an overall holistic one, I now consider whether justice requires, and including because of the existence of legitimate personal or juridical advantages, but in the context of the interests of all of the parties, a stay to be refused and matter to proceed in this forum.

I have borne in mind all the parties’ contentions and the evidence, and consider the following to be particularly relevant matters:

It does also seem to me that the Defendants’ approach is somewhat tactical. They have identified no advantage to them in the matter proceeding in Albertville and for it to do so would, at first sight, be distinctly inconvenient for them requiring the instruction of French lawyers and matters proceeding a substantial geographical distance away and where at least the substance of documents in and events using a foreign language would have to be translated/communicated to them. However, it could be said that there is some advantage to them in the light of both the lower costs of and lower costs recovery of a successful Claimant in French proceedings (neither side has taken any point on the availability of QOCS (Part II of CPR44) in this forum and I have no evidence as to the position of potential recoverability (if any) of Defendants’ costs in personal injury quantum-only proceedings in France – and so have disregarded those matters).

I have not sought to proceed on the basis that the English & Welsh procedure is any way superior to that of the French courts in any sort of general terms. It seems to me that nothing has been raised here of that nature which could amount to a relevant “legitimate personal and juridical advantage” within Lord Goff’s reasoning. The potential for costs recovery on an English & Welsh basis if the matter proceeds in this forum (as opposed to in France) is relevant not as a general rule (as it seems to me that Lord Goff would say that each forum can properly have its own level of costs rules and there is nothing before me which could lead me to conclude that France’s rules are bound the ambit of reasonableness in English & Welsh terms) but because that potential is to be applied to the individual circumstance of the Claimant here that she has incurred substantial costs and obtained substantial work (wasted if the matter proceeds in France) at a time when the law was that she could insist upon the matter being determined in England.

It does seem to me that there is particularly important (although I have borne in mind all the above matters) that:

I further have borne in mind that the Claimant could have avoided the present circumstance by issuing before 31 December 2020 and that it is not the fault of the Defendants that the Claimant did not do so. However, I do not see this forum non conveniens jurisdiction as being equivalent to a limitation right such that the Claimant is to be treated as having missed a strict time limit which exists as a matter of public policy and having to accept its consequences. This jurisdiction is discretionary and, unlike the law of limitation is subject to “special circumstances” and the law regarding legitimate personal and juridical advantages and achieving the ends of justice as set out above. Moreover, the passing of the 31 December 2020 date has made no practical difference to anything, and has not affected the substantive rights of the parties, and there is the curiosity that the Defendants are relying upon it to seek to avoid proceedings being conducted in their own home jurisdiction although they accept that any enforcement would take place here. I regard all those points as limiting the weight to be given to this factor.

It seems to me that the various above matters when taken together do amount to (i) the Claimant enjoying “legitimate personal and juridical advantages” in being able to bring these proceedings in this forum, and which arise from the peculiar (in the sense of being outside the norm) situation and consequences of Brexit and the Withdrawal Agreement, and (ii) circumstances (indeed special circumstances) which (bearing in mind the interests of the parties) mean that the refusal of stay, even were France to be distinctly and clearly the more appropriate forum, is required in order to achieve the ends of justice. For such not to be the case would involve the waste of substantial properly incurred cost and resource, and in circumstances where, even if France is clearly the more appropriate forum, for the reasons given above, the courts of this forum are perfectly capable to dealing with the quantum dispute and resolving it justly and at proportionate cost in accordance with the CPR overriding objective.

I would therefore refuse a stay even were France to be (as I have assumed for these purposes) to be distinctly and clearly the more appropriate forum.

While I have dealt with the matter above on the individual “two stage” basis which I think is what Lord Goff envisaged and required, I have also considered it holistically. It seems to me that in the light of my conclusions on each stage, but also looking at the matter in the round, this is a situation where justice does not require the matter, properly commenced against and served upon these English Defendants, to be stayed in France but rather the opposite essentially for the reasons given above.

In all the above circumstances, I propose to dismiss the Application for a stay on forum non conveniens grounds.

I add that this decision has been reached on the facts of this particular case, and including where a substantial element of a Pre-Action Protocol process had taken place and substantial costs had been incurred while the Judgments Regulation still applied in this jurisdiction. The same outcome might not be reached on other facts, but I have had to deal with the situation before me.

As set out in my draft Judgment I am handing down this final judgment at 11.30am on Monday 28 February 2022 without attendance from the parties but with an adjournment of the hearing and of (with general extensions of time until further order) all questions of permission to appeal and time to appeal, form of orders and costs to a further date; with the parties to liaise and having until 4.30pm on 18 March 2022 to submit their proposed orders and any applications (including for permission to appeal and time to appeal) and a statement of whether they seek an oral hearing (and if so with dates to avoid until 31 May 2022).