Cooley v Ramsey

For service out of the jurisdiction in a tort claim, damage sustained within England under CPR 6.20(8)(a) bears its ordinary meaning. It includes physical or economic harm and need not be the damage which completed the cause of action. Some consequential damage sustained in England may therefore establish jurisdiction, although the originating act and initial injury occurred abroad.

Permission remains discretionary. The claimant must establish that England and Wales is the proper place for the claim. The court identifies the forum in which the case can suitably be tried in the interests of all parties and for the ends of justice. A more favourable measure of damages in England does not by itself justify permission.

The claimant suffered catastrophic brain and orthopaedic injuries when his motorcycle collided with the defendant’s car in New South Wales. Liability was admitted. After hospital treatment and rehabilitation in Australia, the claimant returned to England, where his family provided substantial care and where his future treatment, accommodation and support needs would arise.

The claimant began proceedings in England and obtained permission to serve the defendant in New South Wales. Proceedings were also commenced in the Supreme Court of New South Wales. On the defendant’s application under CPR 23.10, the High Court considered whether damage had been sustained within England for CPR 6.20(8)(a), and whether England and Wales was the proper place for the claim under CPR 6.21(2A).

1. The defendant’s application was dismissed. The court had jurisdiction under CPR 6.20(8)(a), and England and Wales was the proper place in which to bring the claim.

2. “Damage” in CPR 6.20(8)(a) has its ordinary and natural meaning. It includes physical or economic harm sustained by the claimant. The rule does not confine jurisdiction to the damage which completed the cause of action. Nor does it require all damage to have been sustained within England. The court respectfully agreed with and followed Booth v Phillips [2004] EWHC 1437 (Comm); [2004] 1 WLR 3292.

3. The authorities concerning article 5(3) of the Brussels Convention did not require a narrower construction. Unlike that regime, CPR 6.20 is subject to the discretionary safeguard in CPR 6.21(2A). That safeguard addresses the risk that consequential loss might otherwise found jurisdiction in an inappropriate forum. A broad jurisdictional gateway therefore does not compel the court to accept an unsuitable claim.

4. The claimant bore the burden of showing both jurisdiction and that England was the proper place for the proceedings. The fundamental question was where the case could suitably be tried in the interests of all parties and for the ends of justice. Where the wrongful act and damage occur in different countries, the answer may depend on whether the dispute principally concerns liability or damage, together with the convenience of the parties and witnesses.

5. England was the proper forum. Liability was admitted, so the claim principally concerned the nature and valuation of catastrophic injury and lifelong needs. The claimant, his litigation friend, treating and expert witnesses, future care, accommodation and support arrangements were based in England. Effective preparation required close liaison among those participants, which could be achieved properly only in England.

6. The prospect of a higher English damages award did not justify permission by itself. The claimant’s advantage under English damages law was counterbalanced by the defendant’s interest in the compensation regime of New South Wales and its policy of maintaining affordable insurance premiums. The forum decision instead rested on the practical requirements of preparing and determining the damages claim.

The judgment describes prior procedural steps but no appeal. Master Yoxall had granted the claimant permission to serve the proceedings out of the jurisdiction under CPR 6.20 and CPR 6.21. On the defendant’s application under CPR 23.10, the High Court upheld the availability and exercise of that jurisdiction and dismissed the application.