Still got the Brexit Blues

For those involved in cross border personal injury litigation, the changes to the jurisdictional rules following Brexit had two chief consequences.  

• The first was that the common law rules of jurisdiction are at least potentially more restrictive than the European rules, making it more difficult for an English resident[1] injured abroad to bring the claim in the English courts.
• The second was that the common law rules of jurisdiction are inherently less certain and predictable than the European rules, making confident advice to clients more difficult and raising the possibility of spending much time and money litigating in England only to be told to go off and bring the case in another country.

Here, I consider how those two issues have developed since the end of the Brexit transition period on 31 December 2020 and the current lie of the land.

As to the first problem, the potentially more restrictive rules, matters have developed to the claimant’s advantage with the decision of the Supreme Court in Brownlie [2021] UKSC 45.  The English courts have jurisdiction over a claim in tort where inter alia “damage was sustained … within the jurisdiction” (CPR PD6B, §3.1(9)(a)).  There had been a long disputed issue as to whether the damage necessary to found jurisdiction was the initial damage suffered in the accident or whether it included consequential or secondary damage.  If the former, then the provision would not help English residents injured abroad to bring the claim in England since by definition the initial damage was not sustained within the jurisdiction.  The Supreme Court, however, by a 4-1 majority preferred the wider reading, holding that the jurisdictionally significant damage included such matters as continuing pain and suffering, medical expenses, loss of earnings, etc, suffered in England.  In almost all cases of significant injury, the English resident claimant will continue to suffer such secondary damage after returning home, so the decision opens up to many claimants injured abroad the possibility of suing in England.

Lord Leggatt dissented on the basis that the English court should only claim jurisdiction where there is some substantial and not merely casual link between the cause of action and England.  If the gateway is as wide as the majority held, a person may in effect select England as the forum, for example by travelling here for medical treatment.  The majority were not put off by these concerns, however.  They believed that the power in the English courts to stay a claim on grounds of forum non conveniens would ensure that claims proceeded in England only where they had a sufficient connection.

This reliance on the power to stay a claim if the judge decides that it would be more suitably tried in another country (usually no doubt the country where the accident happened), however, leads directly to the second problem: lack of predictability.  Whereas the European rules were mainly mandatory (if the court had jurisdiction it was obliged to try the case) the domestic jurisdiction rules are discretionary (the English court will try the case only if it both passes through a jurisdictional gateway and the judge decides as a matter of discretion that England is the appropriate forum).  The forum non conveniens power was first fully described in The Spiliada [1987] AC 460.  The court considers practical matters: where did the accident happen?  which law governs the claim?  Where are the witnesses and documents based?  Etc.  It is not a question of counting up the factors each way.  If there are many and complex issues of say German law, that may tell strongly in favour of a German court deciding the case.  But if on the relevant issues German law is similar to English law, it will not weigh heavily.  The power to stay a claim in this way may well be regarded as a civilised one, a rebuke to judicial chauvinism.  But being a matter of weighing up a host of matters and reaching a conclusion on which factors outweigh which others, it is also an expensive and uncertain process. 

Klifa v Slater [2022] EWHC 427 (QB) was a post-Brexit forum non conveniens challenge which shows some of the issues and how they might be decided in practice.  The claimant was in fact a French resident who suffered a skiing accident in France through the fault of an English resident.  She sued the English defendant and his UK insurer in the English courts, issuing the claim form shortly after the end of the Brexit transition period.  The claim was brought in England to ensure that the judgment against English defendants could be straightforwardly enforced in England.  The judge, Master Dagnall, noted that since the defendants were properly served in England “as of right” the burden was on the defendants to show that the French courts were clearly and distinctly more appropriate.  He took into account the fact that the accident was in France, French law governed the assessment of damages (liability having been conceded), and the claimant had suffered her losses in France.  On the other hand, the pre-action protocols had been properly followed and a good deal of costs and expenses incurred in pursuing the claim in England and all without any complaint by the defendants that the claim should have been pursued in France.  Those costs would largely have been wasted if the case was stayed to France.  Enforcement would be simpler in England.  The claimant spoke English and could give evidence in that language if it became necessary.  The French court with jurisdiction would be the court for the area in which the accident happened and the claimant in fact lived as far from that court as from the High Court in London.  The judge found the case to be finely balanced and indeed said that if the test was simply which forum was the more appropriate he may well have held that France was, but concluded that the defendants had not shown that France was clearly and distinctly more appropriate than England.

The case demonstrates the types of issues likely to be relevant to the discretion, but also the practical problem that it is not easy to predict the outcome to forum non conveniens challenges.  We will need decisions in more such cases in the personal injury field before a clear pattern emerges.

In the meantime, there are a couple of points of general significance in forum non conveniens cases. 

• First, if liability is in issue then there will usually be a stronger connection to the country in which the accident took place than if liability is not in issue. Witnesses will be there, there will be a local police report, local standards will apply as well as local law.  Where only quantum is in issue, on the other hand, the connection to the place where the accident happened is likely to be much weaker.  Where the claimant is an English resident, the evidence is likely to be largely or wholly English based: medical records, employment records, friends and family as witnesses, expert medical experts based in England, etc.  So a forum non conveniens challenge will have a better chance of succeeding where liability remains an issue.
• Second, there is the factor noted by Lord Leggatt in Brownlie, namely the tendency of English judges to find reasons to keep the case in England. He notes the concern that “… if invited to exercise a largely unfettered discretion, judges cannot be relied on to require a real and substantial connection between the defendants conduct and England and Wales to be shown before permitting a claimant to sue a foreign defendant.”  (203).  It is a disarmingly frank assessment, supported by the fact that in all the first instance personal injury decisions referred to in Brownlie England was found to be the appropriate forum.  It is natural that judges will be influenced by the human factor: the injured English resident seeking vindication on one side and the mighty insurance company on the other.  So where judges are able to keep the case in England they are likely to do so.

One final point.  The government which brought us Brexit does not want us to have to use the common law jurisdiction rules.  On 8 April 2020, the government applied to accede to the Lugano Convention.  The UK had previously been a party only through its membership of the EU and accordingly it ceased to be a party at the end of the Brexit transition period.  The Lugano Convention rules are closely based on the EU jurisdiction rules (though a somewhat dated version), so accession to the Lugano Convention would for most purposes restore the status quo ante Brexit.  Norway, Switzerland and Iceland were happy to have us.  The EU rather less so.  On 23 June 2021, the European Commission issued a Note Verbale opposing UK accession to the Lugano Convention on a number of technical grounds.  The final decision rests with the Council not the Commission, but for the present at least the application seems to be stranded.  As recently as 20 July 2022 (in a letter from the Secretary of State for Justice)[2] the government indicated that it remained committed to the Lugano Convention application.  It is always possible that if there is, for example, a satisfactory resolution to the dispute over the Northern Ireland protocol, the Commission’s technical objections might be overlooked.  For the present, however, we need to continue to refamiliarise ourselves with the peculiarities of the common law jurisdiction regime.

[1] Here, an English resident is shorthand for a person domiciled within the jurisdiction of the courts of England and Wales.

[2] https://resolution.org.uk/wp-content/uploads/2022/07/ADR96880-DPM-Response.pdf (accessed October 2022).