Szrek: another decision on jurisdiction and forum (non) conveniens in ‘accidents abroad’

The recently decided case of Szrek & Ors v Div-Ing DOO & Ors underlines the importance of defendants vigorously challenging jurisdiction.

Background

The case involved four claimants. The first was a Polish national domiciled in England & Wales who alleged that he suffered serious injury, during a diving accident in Croatia, as a result of breach of contract and/or negligence. The other three were the first claimant’s relatives, all of whom were domiciled in Poland. 

There were three defendants. Two were companies registered in Croatia, offering diving and other water-based activities. The other was the public liability insurer concerned, also registered in Croatia. The claimant requested permission, as required by CPR Practice Direction 6B, to serve proceedings outside the jurisdiction on the insurer. The request for permission to ‘serve out’ was made only in respect of the claim in tort.

The hearing

The hearing took place at the High Court on 26 January 2024. None of the defendants attended and they were not represented either. The insurer had however provided a small bundle of material for the hearing described as an ‘Appearance and Defence’. Within this it contested English jurisdiction, on the basis that the damage suffered by Mr Szrek occurred in Croatia, none of the claimants were UK citizens and that the family members lived outside England & Wales.

However, eight reasons were given by the claimant as to why England & Wales was the appropriate forum - forum conveniens - for his claim. These included: that he was domiciled here, that he has and will continue to suffer the consequences of his accident here, that international diving standards will apply to the assessment of liability, and that it would be difficult for him to travel to Croatia for legal proceedings given the nature of his injuries.

In making this application - as with any relating to ‘service out’ - the claimant would be required to establish:

i.    that the case falls within at least one of the relevant jurisdictional gateways in at PD 6B, the gateways for tort claims being those at paragraph 3.1(9), which requires that at (b) that “damage was sustained, or will be sustained, within the jurisdiction”

ii.    that he has a reasonable prospect of success, and

iii.    that England & Wales is the proper place (forum conveniens) in which to bring the claim.

The judgment (available at Szrek & Ors v Div-Ing DOO & Ors [2024] EWHC 219 (KB)

In relation to (i), Alison Morgan KC (sitting as a Deputy High Court Judge) applied the approach set out by the Supreme Court in Brownlie (2) in 2021 to conclude that the claimant suffered damage within the jurisdiction and consequently the claim passed through the relevant jurisdictional gateway at 9(b).

She also found, on the facts set out in the particulars of claim, that the claim had, as required at (ii) above, a reasonable prospect of success.

The final hurdle, (iii), is perhaps the most onerous. When a defendant challenges jurisdiction - as was attempted here, albeit somewhat informally - the burden shifts to it to prove forum non conveniens. This discretionary test is designed to prevent acceptance of jurisdiction in matters where there is merely a “casual or adventitious” link between the claim and England & Wales. In Szrek, Alison Morgan KC found that links to England & Wales were not merely “casual or adventitious”. The particulars of claim set out a number of practical and procedural reasons why the claim was more properly advanced in England. In her opinion it was of greatest significance that first claimant’s losses had been experienced in England “to a significant extent”.

In addition, and on a different point, she granted an extension of time of 8 months for service of the claim form due to the failure of the defendants to engage in proceedings or respond to correspondence within the conventional timeframe for service, despite continuous attempts by the claimants’ solicitors.

Challenging forum conveniens

The outcome of this case is in sharp contrast to the judgments in Moore v MACIF and Winks v HUK Coburg, in both of which the defendants were formally represented and had vigorously argued forum non conveniens to challenge jurisdiction in England & Wales in claims arising out of accidents in other countries. In both cases their arguments were successful.

Forum (non) conveniens remains a hotly-contested area which is very fact-specific and which defendants are well advised to challenge. In order to maximise the chances of success, it is important to do so robustly and with appropriate representation, argument and evidence.