Cross border claims: the importance of the forum conveniens test

Questions of jurisdiction in ‘accidents abroad’ claims are, post EU exit, less predictable than they were under the regime set out in the Brussels 1 Regulation. That had, generally, allowed UK-based claimants to bring their claims here as of right, despite the underlying accident happening in another country.

Since the UK left the EU, the test for establishing jurisdiction of the English court now requires the permission of the court to ‘serve out’ ie serve the proceedings on the defendant domiciled outside the jurisdiction (for example, a Spanish motorist or a French ski guide).

The court will permit service out - ie accept it has jurisdiction to hear the matter - by applying a test that has three elements:

• that the claim has reasonable prospects of success
• that the claimant satisfies the relevant jurisdictional ‘gateway’ in the Civil Procedure Rules (which, for tort claims, is that damage was sustained, or will be sustained, within the jurisdiction), and
• that the English court is the most appropriate one to hear the claim, ie it is forum conveniens.

The first is often straightforward and the second is met in ‘accidents abroad’ claims if the claimant sustains ongoing pain and suffering and/or financial losses after returning home (as was clarified by the Supreme Court in its second decision in the Brownlie v Four Seasons litigation in 2021). The third – which had no relevance whatsoever under Brussels 1 - is highly fact-sensitive and will depend on many aspects of the case as a whole. It is this final element which now makes the matter of jurisdiction less predictable.

The most recent case: Winks v HUK Coburg, 3 January 2024

This involved a road traffic accident in Germany in September 2019 in which the claimant, domiciled in England (although temporarily living and working in Germany at the time), was injured by an allegedly negligent driver, domiciled in Germany and insured by the defendant, an insurer based in Germany.

Proceedings were issued in August 2022. The claimant sought permission to serve out on the defendant. The District Judge granted permission to do so -  finding that England & Wales was forum conveniens, based on various factors of the case - and dismissed the defendant’s objection to jurisdiction. The defendant appealed, arguing that the DJ had failed to give appropriate weight to those aspects of the case that would make Germany, rather than England, the most appropriate forum. From a practical point of view, it is worth recalling that the initial burden of proving forum conveniens falls on the claimant. In the event of a dispute, however, it is for the defendant to prove forum non conveniens.

The key issue here, applying the forum (non) conveniens test to post-Brexit foreign accident claims, has not yet been the subject of a decision of a court capable of setting precedent. The only judgment to date appears to be Moore v MACIF [2022] EW Misc 11 (CC). For our purposes, the facts of Moore are broadly identical to those in Winks, other than for it involving France rather than Germany. The decision in Moore was that England was not the most appropriate forum:

“… the balance [of the factors in the case] comes down in favour of France being clearly the appropriate forum. The French court is best placed to apply French law and procedure, although I do not doubt that the English court could do so as English courts are familiar with applying foreign law. However, such law and procedure is very different from that in England & Wales. French law applies because the accident took place in France. The claimants will not be required to attend proceedings in France.”

Unsurprisingly, the defendant insurer cited Moore in support of its appeal in the present case.

In his decision earlier this month, HHJ Carter found that the District Judge in Winks should have considered: the applicable law (which would be German), the dispute as a whole, the location of the parties and witnesses (as well as the need for interpretation were the case to proceed in England), and the location of the defendant. He went on to decide the appeal in favour of the insurer, giving the following reasons.

“It is clear from her judgment that she attached considerable (and indeed conclusive) weight to the fact that the Claimant was not (in her description) living permanently in Germany and that the symptoms he suffered were suffered in England & Wales...

However, the Judge did not address the interests of the Defendant to have the claim heard in Germany, nor did she consider why the claim could not as conveniently be heard in Germany especially when the applicable law was German law.

The decision of the Judge to conclude that the most appropriate forum was England & Wales based on the Claimant’s place of residence and the place where the majority of the symptoms were suffered (and treated) did not in my judgment adequately balance the relevant factors I have set out…”

What are the learning points from this case?

Despite the outcome of Winks not being widely reported (other than on Westlaw) or commented on to date, it raises two key points for those interested in cross border claims.

1. First, that the decision in Moore v MACIF can no longer be regarded as a one-off (even if it is not at the level of precedent) and it should not be presumed, if ever it was, that English courts will accept jurisdiction merely because the claimant is domiciled here and has sustained damage here (per Brownlie) following an accident abroad.
2. Second, it is a clear reminder that the factors of the forum conveniens test are very fact-specific and should always take account of the dispute as a whole, including the procedural ease of it being heard in the competing jurisdictions.

There is, however, a final twist. It is that had the claimant issued proceedings in England & Wales before the end of the UK/EU transition period on 31 December 2020 – that being some 15 months after his accident - the English court would have accepted jurisdiction as of right under Regulation (EU) 1215/2012, ie Brussels 1, a point which is very clear from article 67 of the UK/EU Withdrawal Agreement:

“1. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period… the following acts or provisions shall apply:

(a) the provisions regarding jurisdiction of Regulation (EU) No 1215/2012”