Peacock v DEL Seatek India Private Ltd & Anor

Permission to serve proceedings out of the jurisdiction requires satisfaction of each applicable jurisdictional gateway, a reasonable prospect of success, and England and Wales being the proper forum. In a personal injury claim, continuing consequential damage suffered in England can satisfy the tort gateway in CPR Practice Direction 6B, paragraph 3.1(9)(a), at least where the Supreme Court’s wider interpretation is applicable. The good arguable case standard is flexible and appropriate to an interlocutory jurisdiction application. The court should avoid conducting a mini-trial. On forum conveniens, the defendant must show that another available forum is clearly or distinctly more appropriate. The existence of foreign law or foreign factual connections is not decisive. The court may assume foreign law is materially the same as English law unless a difference is pleaded and proved.

The claimant, an English-domiciled commercial diver, suffered a serious injury in India while working on a vessel owned or occupied by the second defendant, a South Korean company. The first defendant, his Indian employer, was subject to judgment in default in England. The second defendant challenged jurisdiction under CPR Part 11 and sought to set aside orders extending time for service out of the jurisdiction.

The claimant relied on the tort gateway and the necessary and proper party gateway. The second defendant submitted that India was the appropriate forum, that the claim had not been shown to have reasonable prospects of success, and that the extensions of time were affected by insufficient evidence and non-disclosure. The central issues were whether the tort gateway was satisfied, whether England was the proper forum, and whether the procedural orders should be set aside.

1. The jurisdiction challenge was dismissed. The claimant had to establish a relevant gateway, a reasonable prospect of success, and that England and Wales was the proper place for the claim. Each requirement was separate and had to be satisfied.
2. The claimant’s physical injury occurred in India, but he continued to suffer pain, financial loss and other consequential damage in England. Following the wider approach supported by the majority in Four Seasons Holdings Inc v Brownlie [2017] UKSC 80, that continuing damage was sufficient to satisfy the personal injury tort gateway in paragraph 3.1(9)(a) of Practice Direction 6B. The relevant observations of the Supreme Court were obiter, but persuasive.
3. The good arguable case requirement was not the ordinary civil standard of proof. The claimant had to provide a plausible evidential basis for the gateway. At an interlocutory hearing the court should take a reliable view where possible, but should not finally determine disputed merits issues. The evidence disclosed a factual basis for a negligence claim against the second defendant, and its failure to provide evidence contradicting that case was relevant.
4. The court could proceed on the assumption that Indian law was materially the same as English law unless the second defendant pleaded and proved a material difference. The evidence of Indian law served shortly before the hearing was inadmissible because it was late, unsupported by an expert report, and not accompanied by the required notice.
5. England was clearly the more appropriate forum. India had substantial connections with the accident, employment and applicable law, but the claimant and another liability witness were in England, the vessel and a material witness were no longer in India, expert diving evidence was more readily available in England, and liability and quantum proceedings against the first defendant were already proceeding in England. Separate hearings on quantum would be inappropriate.
6. The necessary and proper party gateway did not require determination because the tort gateway and forum requirement were satisfied. The challenges to the three extensions of time were also rejected. The applications were prospective, reasons had been given, the claim was issued within limitation, and there was no material failure of full and frank disclosure. The unexplained delay in challenging the orders was also relevant.

First-instance jurisdictional decision. The judgment records that the jurisdiction hearing had been adjourned pending the Supreme Court decision in Four Seasons Holdings Inc v Brownlie [2017] UKSC 80, after which the hearing resumed.