John Colin Graham v Fidelidade – Companhia De Seguros SA

Procedural defects in an application to extend time for service do not necessarily invalidate the resulting order. Where the claimant has made an identifiable application, the court may waive or cure procedural requirements under Civil Procedure Rules 1998 Part 3, provided that no specific rule prohibits the step. The strict approach in cases concerning extensions after expiry of the service period does not govern an application made within that period. On an application to serve out, a direct claim against an insurer may be treated as a claim in tort where it is substantively founded on the insured driver’s underlying tort. The claimant must establish the merits, gateway and forum conveniens tests. England was the natural forum where the claimant, his witnesses and medical evidence were principally based there, despite the accident and insurer being connected with Portugal.

The claimant was seriously injured in Portugal when struck at a pedestrian crossing by a vehicle insured by the defendant, a Portuguese insurer. The defendant admitted liability but later challenged orders extending time for service and the court’s jurisdiction. The claimant had obtained the extensions by email, without standard application notices or evidence verified by a statement of truth. He also sought to rely on further evidence at the rehearing.

The issues were whether the extensions were valid and should stand, whether the further evidence was admissible, whether the tort gateway under Civil Procedure Rules 1998 CPR PD 6B was satisfied, and whether England was clearly or distinctly the appropriate forum.

1. Extension applications. The claimant’s emails identified the orders sought and the reasons for them. They therefore constituted applications despite their highly irregular form. The Master must be taken to have dispensed with the requirement for formal application notices under CPR 23.3(b), and to have waived the requirement for verified evidence using the general powers in CPR Part 3.
2. CPR Part 3. Vinos concerned the specific prohibition in CPR 7.6(3) and did not prevent the use of CPR 3.10 or CPR 3.1 where an application was made within the period specified by CPR 7.5(2). The relevant error was failure to verify supporting evidence, not failure to apply. CPR 3.10 could cure that procedural error because no rule expressly prohibited an application supported by unverified evidence. The orders were therefore not invalid.
3. Rehearing and evidence. A without-notice application to set aside an order is reheard on the facts existing when the original order was made. Further evidence may be admitted where it sheds light on that earlier position. Beasley 2 was admitted as a case-management step.
4. Merits of the extensions. Applying the principles in ST v BAI, the first extension was supported by the steps taken to obtain permission to serve out and arrange service. The second was supported by failed attempts at agent-to-agent service and prompt resort to the Foreign Process Office. The unexpired limitation period and absence of limitation prejudice were relevant, though not determinative. Both extensions stood.
5. Jurisdiction. The claimant established a real prospect of success, a good arguable case under the tort gateway, and that England was clearly the appropriate forum. The direct claim against the insurer was, in substance, founded on the driver’s underlying tort. England was the natural forum because the claimant, his partner, factual witnesses and medical evidence were principally there, and the claimant’s serious injuries made an English trial materially more convenient. Portuguese law and the place of the accident were countervailing factors but did not outweigh those connections.
6. The defendant’s applications were dismissed. The orders extending time and permitting service out stood. A fresh Acknowledgement of Service and Defence were ordered.