James Fox v Steve Fellows Road Haulage Services Limited & Ors

Permission to serve a foreign defendant out of the jurisdiction requires a serious issue to be tried, a good arguable case within a jurisdictional gateway, and England and Wales to be clearly or distinctly the appropriate forum. The court ordinarily considers the pleaded case and avoids a mini-trial. It should be particularly cautious about resolving disputed foreign law without proper expert evidence. The forum inquiry is holistic and includes connecting factors, governing law, practical convenience, the parties’ interests, and the risk of multiplicity and irreconcilable judgments. Where an anchor defendant must be sued in England and the related claims substantially overlap, that risk may be decisive. A contribution claim may proceed where there is a realistic prospect that the applicable law permits it, even though the precise foreign-law issue requires determination at trial.

The claimant, an English domiciled HGV driver, was injured in Spain when a forklift driven by the second defendant struck him at the second defendant’s premises. The claimant sued his English employer and sought to serve the Spanish tortfeasor and its Spanish insurer out of the jurisdiction. The employer brought a related Part 20 claim for indemnity or contribution.

The parties disputed whether the claims raised a serious issue to be tried and whether England and Wales was the appropriate forum. They also disputed whether the employer’s contribution claim was governed by English or Spanish law.

1. Claimant’s application. The application to set aside service on the second and third defendants was refused. The claimant had established a serious issue to be tried, an applicable jurisdictional gateway and that England and Wales was clearly and distinctly the appropriate forum.
2. The serious-issue test is equivalent to the summary-judgment test. The claim must have a realistic, plausible evidential basis and more than a fanciful prospect of success. The court should avoid a mini-trial and ordinarily proceed on the pleaded facts unless they are demonstrably untrue or unsupportable. Contributory negligence could not defeat the claim at this stage where the court had no witness evidence, CCTV or liability documents.
3. The forum inquiry is holistic. The court must identify the forum with which the dispute has the most real and substantial connection and where it can most suitably be tried in the interests of the parties and for the ends of justice. Spain was favoured by the place of the accident, the governing law and the Spanish defendants’ residence. Countervailing factors included the English residence of the claimant and employer, the fact that the employer’s claim could only be tried in England, and the location of most losses and witnesses.
4. The claims arose from the same accident and substantially overlapped. Separate proceedings would create delay, duplication and a substantial risk of inconsistent and irreconcilable findings. Those considerations outweighed the factors favouring Spain.
5. Employer’s Part 20 application. Permission to serve the additional claim out of the jurisdiction was granted. There was at least a realistic prospect that English law applied under Article 20 or Article 4 of Rome II. Even if Spanish law applied, the competing positions on Articles 1145 and 76 involved foreign-law questions that could not properly be resolved summarily on limited solicitor evidence. Expert evidence and determination at trial were required.
6. The contribution claim should be heard with the underlying claims because of the substantial overlap in the evidence and issues and the need to assess relative fault. Costs and consequential directions were reserved.