Wink v Croatio Osiguranje DD

For the tort gateway permitting service outside the jurisdiction, “damage sustained within the jurisdiction” includes any physical or economic harm flowing from the tort. It is enough that some damage, whether direct or consequential, was sustained in England and Wales. The original injury need not have occurred there.

Permission also requires a serious issue to be tried and England and Wales to be the forum conveniens. The court must consider the nature of the dispute, applicable law, witnesses, expense and the interests of justice. The application of foreign law does not necessarily outweigh the convenience of trying a damages claim where its factual, medical and financial evidence is concentrated.

The claimant, an English-domiciled British national, was seriously injured in a road accident in Croatia. The Croatian motor insurer admitted liability, subject to contributory negligence. After returning to England, the claimant continued to experience serious physical consequences, underwent treatment and rehabilitation, and sustained loss of earnings.

The claimant obtained permission under rules 6.36 and 6.37 and paragraph 3.1(9)(a) of Practice Direction 6B to serve his tort claim on the insurer in Croatia. The defendant applied to set that permission aside and challenged the court's jurisdiction. A serious issue to be tried was conceded. The questions were whether damage had been sustained within England and Wales and whether England and Wales was the forum conveniens.

1. The defendant's application was dismissed. The order granting permission to serve the proceedings in Croatia was confirmed.

2. The words “damage was sustained within the jurisdiction” in paragraph 3.1(9)(a) of Practice Direction 6B bear their ordinary meaning. They encompass any physical or economic harm flowing from the tort, whether direct or consequential. The absence of the definite article means that some damage within the jurisdiction is sufficient. The gateway does not require the original accident or injury to have occurred there.

   The claimant had continued to suffer pain, other sequelae and economic loss after returning to England. He therefore sustained damage within the jurisdiction. The court followed Cooley v Ramsey [2008] EWHC 129 (QB) and approved the reasoning in Booth v Phillips [2004] 1 WLR 3292.

3. The rules governing service outside the jurisdiction need not be construed consistently with article 5(3) of the Brussels I Regulation. The European and common-law schemes have different structures and policies. The European scheme prioritises certainty and excludes forum conveniens, whereas the common-law regime makes jurisdiction discretionary and permits the court to test whether England is the appropriate forum.

4. There was a serious issue to be tried. Liability had been admitted, subject to contributory negligence, and substantial damages remained to be assessed.

5. England and Wales was the forum conveniens. Croatian law governed the assessment of damages and recoverable heads of loss under articles 4(1) and 15(c) of Regulation 864/2007. That consideration did not outweigh the other factors. Croatian damages law was sufficiently similar to English law, and any material foreign-law issue could be addressed by expert evidence.

   The principal factual, medical, employment and accountancy witnesses were based in England. The claimant lived there, had experienced the continuing consequences there, and would suffer future losses there. An English trial would reduce expense, inconvenience, translation and interpretation. Neither the protective Croatian proceedings nor the insurer's payment of an undisputed amount materially altered the forum analysis.

1. High Court (Queen's Bench Division): The defendant's application to set aside the service-out order and challenge jurisdiction was dismissed. The order of 6 September 2012 was confirmed.

2. Prior procedural step: On 6 September 2012 the claimant obtained permission to serve the claim form and particulars of claim on the defendant in Croatia. Protective proceedings had also been commenced in Croatia, with an undertaking to discontinue them if English jurisdiction was confirmed.