Travel and cross border- accidents abroad and forum conveniens

Following the UK leaving the European Union on the 31 January 2020, the travel industry has been hit hard for several reasons, affecting tour operators, suppliers, airlines, travel agents, insurers and claimants to name but a few.

Pre-Brexit, we had the ability to pursue claims against foreign insurers in the courts of England and Wales even if the accident occurred on foreign soil. Now, we are left with a minefield and no substantial case law confirming whether claims can be successfully pursued in England and Wales.

If a claimant wishes to pursue a claim outside of the jurisdiction they will need to obtain the court’s permission. To do so they must show that England is the correct jurisdiction by passing the following three tests:

1. The merits test: prove that there is a serious issue to be tried on the merits of the case and that it falls within one of the jurisdictional gateways.
2. The Gateway test: show that the claim falls within one of the jurisdictional gateways for which leave to serve outside may be given under the civil procedure rules.
3. Finally, the Forum Conveniens test (FC Principle): that England is clearly the appropriate forum to hear the case.

It is easy for a defendant to challenge jurisdiction as all they have to show is “that England is not the natural or appropriate forum for the trial” and that “there is another available forum which is clearly or distinctly more appropriate than the English forum”, making it much harder for the claimant to prove that the case should stay in England. It is not enough for a claimant to reside in England or that they can pursue the third party’s insurers. The claimant has to prove that there is a close connection and that it is clear that the English courts are the correct forum.

The FC Principle was supposed to give the English courts a predictable way to filter out cases which should be brought in a different jurisdiction. Instead, the recent case law has shown quite the opposite.

In the case of Graham v Fidelidade-Companhia De Seguros SA [2024] EWHC 2010 (KB) (“Graham”) the claim succeeded under the FC Principle. The accident occurred in Portugal but the claimant argued that English jurisdiction should apply as the claimant had no real connection to Portugal, had mobility issues, could be examined in the UK, and all of his witnesses were based in the UK. Despite the claim being governed by Portuguese law in respect of both quantum and liability the claimant argued that it was not unusual for the defendant to be pursued from a foreign jurisdiction from time to time. The claimant was successful and the case was ordered to be heard in the English courts.

However, the opposite occurred in Aulla v Reale Segurothe Generales SA (unreported) (“Aulla”) which was heard only six weeks after Graham. This was a road traffic accident where the claimant had spent five weeks in Spanish hospitals. The claim was against the foreign insurer and the facts were largely the same as in Graham. The court decided that England was not the correct forum to hear the claim as the accident happened in Spain, Spanish law applied to the claim, (it did not matter that the English courts could apply Spanish law to the claim), and that it would be quicker and more efficient for the claim to be heard in Spain.

These two similar cases, heard literally weeks apart yet producing two completely opposite results, show that despite the FC Principle being in place there is no certainty, and since the loss of the recast regulation it is incredibly difficult to advise clients.

For claimants, it means that they still have the ability to issue in the English courts and serve effectively outside the jurisdiction, but for defendants they can maintain that the courts don’t have jurisdiction under the three tests to avoid English litigation costs.

When considering arguments on where proceedings should be issued and served, we should consider the following principles:

• Consider the practicalities of the judge applying foreign law in the English court. Is it law that will be familiar to the court?
• What experts will be needed and where will they be located?
• Where are the witnesses located, and will you need an interpreter?
• Where is the evidence located and how much will need to be translated?
• How easy will it be to give evidence, for example by video link, from the foreign court in question in the English courts and vice versa.
• Can the evidence be given remotely?
• Timing, delays with the court etc
• Merits and demerits of the English court having jurisdiction.

A final note; after getting past the FC Principle a claimant and their advisors should also consider the practicality of enforcement. If the claimant has to enforce any judgment outside the jurisdiction, would they still need to have the case heard in that jurisdiction to be successful? A topic to discuss on another occasion!