Stylianou v Toyoshima

For service out of the jurisdiction in a tort claim, consequential financial loss sustained in England may constitute damage sustained within the jurisdiction, even where the physical injury occurred abroad. The court must separately consider whether England is the proper place for trial under the forum conveniens test.

Rome II governs applicable law, not jurisdiction under the CPR. Its general rule may be displaced only exceptionally where the tort is manifestly more closely connected with another country. Assessment of damages is governed by the applicable law, subject to the limited procedural exception in Article 1(3). England was the proper forum despite Western Australian law applying and earlier Australian proceedings having been actively pursued.

The claimant, an English resident rendered tetraplegic in a road accident in Western Australia, brought proceedings there against the driver. Liability was admitted and interim payments were made. She later commenced English proceedings against the driver and his insurer, seeking substantially higher damages under English assessment principles.

Permission had been granted to serve the proceedings out of the jurisdiction. The insurer applied to set aside that order, stay or strike out the English claim, and alleged inadequate disclosure and abuse of process. The central issues were whether the jurisdictional gateway was satisfied, which law applied under Rome II, whether England was the proper forum, and whether the English claim was abusive.

1. Service out. The claimant had to establish a CPR gateway, a serious issue to be tried, and that England was the proper place for the claim. The consequential financial losses sustained in England fell within the natural meaning of damage sustained within the jurisdiction under CPR 6.36 and CPR 6 BPD 3.1(9)(a).
2. Interaction with European instruments. Brussels I, Rome I and Rome II concerned different subject matters. Rome II did not override the CPR jurisdictional rules or remove the forum conveniens discretion applicable where the defendants were not domiciled in a Member State. The reasoning in Booth v Phillips, Cooley v Ramsey and Wink v Croatia Osiguranje D.D was adopted.
3. Applicable law. Western Australian law applied under Rome II Article 4(1). Article 4(3) was an exceptional escape clause requiring consideration of all relevant circumstances, including direct and indirect consequences and factors concerning the parties. The circumstances did not show a manifestly closer connection with England. Article 15(c) required the assessment of damage to be governed by the applicable law. Article 1(3) preserved only matters such as the constitution and powers of the court and mode of trial as procedural matters. The mandatory 6 per cent discount rate under section 5 of the Law Reform (Miscellaneous Provisions) Act 1941 was a rule of law.
4. Forum conveniens. Applying Spiliada Maritime Corpn v Cansulex Ltd, England had the most real and substantial connection with the action. The decisive factors included that the dispute concerned quantum, the claimant lived in England, she could not travel to Australia, and the relevant medical, social-care and expert evidence was predominantly English. The Australian proceedings and their advanced state were important but not determinative.
5. Disclosure and abuse. Disclosure of the Australian proceedings on the without-notice application had been inadequate, but the order would probably have been made in any event. The claim was therefore not stayed for non-disclosure, although the claimant could not recover the costs of that application. Commencing the English claim was not an abuse of process. The insurer’s application was dismissed, subject to consequential costs and protective orders.

This was a first-instance decision of the High Court. The judgment records no prior appellate decision in the same proceedings.