Mariusz Szrek & Ors v DIV-ING DOO & Ors

On an application to serve proceedings out of the jurisdiction, the claimant must establish three matters: a jurisdictional gateway, a claim with a reasonable prospect of success, and that England and Wales is the proper place to bring the claim. Personal injury and continuing loss suffered in England may satisfy the tort gateway requiring damage to be sustained within the jurisdiction. The merits inquiry generally proceeds on the assumed truth of the pleaded facts. The forum inquiry requires an evaluative assessment of the interests of all parties and the ends of justice. An insurer may be a necessary and proper party even where the extent of its liability remains disputed. An extension of time may be granted where the claimant has shown good reason, including reasonable efforts to effect service and the time required for translation and foreign service.

The claimants sought permission under rule 6.36 of the Civil Procedure Rules to serve a proposed tort claim in Croatia on three Croatian defendants. The first claimant alleged serious spinal decompression injury following a diving excursion. The second defendant was the alleged public liability insurer of the first and third defendants.

The court was also asked to extend the period for service under rule 7.6. The defendants were notified but did not attend. The insurer disputed jurisdiction, liability and the policy limit. The issues were whether the tort and necessary-and-proper-party gateways were met, whether the claims had a reasonable prospect of success, whether England and Wales was the proper forum, and whether an extension of time should be granted.

1. Permission to serve out. The court granted permission under rule 6.36. The requirements were that the claim fall within a gateway in Practice Direction 6B, paragraph 3.1, have a reasonable prospect of success, and be brought in England and Wales as the proper place.
2. The personal injury claim passed through paragraph 3.1(9)(a). Applying FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45, actionable harm may include damage that does not complete the cause of action. The first claimant’s pain, suffering and physical injury were suffered sequentially in Croatia and England, so damage was sustained within the jurisdiction.
3. The second defendant, which accepted that it provided relevant third-party insurance, was a necessary and proper party under paragraph 3.1(3)(a) and (b). The policy limit and gross-negligence exclusion were issues for further examination and did not prevent the gateway being satisfied.
4. The pleaded claims had a reasonable prospect of success. The proper analytical focus was the particulars of claim, assuming the pleaded facts to be true. That conclusion extended to the related claims for non-pecuniary damages.
5. England and Wales was the proper forum. The links were not merely casual or adventitious. The most significant consideration was that substantial losses were experienced in England. The court also relied on the likely relevance of international diving standards and practical advantages concerning expert evidence, medical assessment and the claimant’s ability to participate. The approach was consistent with Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] A.C. 460 and VTB Capital Plc v Nutritek Capital Holdings Ltd [2013] UKSC 5; [2013] 2 A.C. 337.
6. Extension of time. The court granted the application under rule 7.6. The claimant’s chronology showed good reason: the defendants had failed to engage, reasonable steps had been taken, and translation and service in Croatia could take substantial time. An eight-month extension was appropriate.