Anne-Marie Le Guevel-Mouly and Others v Aig Europe Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 19 July 2016 |
| Neutral Citation | [2016] EWHC 1794 (QB) |
| Docket Number | Case No HQ15P03288 |
| Court | Queen's Bench Division |
| Date | 19 July 2016 |
[2016] EWHC 1794 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hickinbottom
Case No HQ15P03288
Katherine Deal (instructed by Pierre Thomas and Partners) for the Claimants
Sarah Crowther (instructed by Plexus Law LLP) for the Defendant
Hearing date: 6 July 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In the summer of 2012, Bertrand Mouly and his family went on vacation to Scotland, from their home in Paris. Before leaving France, through an agency in Paris, M Mouly hired a Ford Focus car for the holiday. The car was insured by the Defendant.
On 3 August 2012, whilst driving the car near Oban, M Mouly crossed onto the wrong side of the road and collided with another car. As a result of the accident – which was M Mouly's fault – Mme Mouly and their two children ("the Claimants") suffered injuries. The Defendant promptly accepted liability for their claims; but, despite correspondence between the Claimants' solicitor and the Defendant's claim handler and solicitor, the claims were not settled. On 29 July 2015, the Claimants issued these proceedings against the Defendant.
In this application, the Defendant seeks a stay of the action under CPR Part 11 (or, alternatively, under CPR Part 3), on the basis that Scotland is the forum conveniens. The application under Part 11 is out-of-time; and so the Claimant also seeks an appropriate extension of time.
The Facts
The Defendant is part of the AIG Group, an international group of companies serving customers in more than a hundred countries. The Defendant is registered in London, under the laws of England and Wales, and has branches in Glasgow and Belfast. Its claims handling office in Manchester deals with claims from all parts of the United Kingdom.
M Mouly and his family are all domiciled and habitually resident in France. For the holiday, M Mouly rented a car through Avis in Paris, on the basis that he would collect the car from, and deliver it back to, Edinburgh; but the car rental agreement was with Avis Rent-a-Car Limited, a company based in Bracknell and registered in England and Wales. The law of the contract (which I have not seen) is not agreed: the Claimants' pleaded case is that it is English law, and the Defendant appears to assert that it is Scots law. At present, there appears to be no positive evidence either way. This is of no practical moment, as there are no issues between the parties in respect of that agreement. As I have indicated, the car was insured by the Defendant.
The accident occurred, as I have briefly described, on 3 August 2012. As well as widespread bruising and soft tissue damage, Mme Mouly suffered a broken wrist, which required surgery. Eve Mouly suffered facial injuries, particularly to her chin, which required suturing and a splint; and her teeth. Arthur Mouly suffered a laceration to his forehead (which required closing under a full anaesthetic), a small vertebral fracture and abdominal trauma. They were all treated for their injuries, first, in Scotland, where they were each in-patients for between three and six days; and then in France. Whilst in Scotland, the Claimants incurred losses associated with their injuries and treatment, including accommodation, food, clothing, telephone and transport costs. The Claimants' other loss and expense was incurred in France. They had the benefit of French travel insurance which incurred outlays for repatriation etc, and in respect of which they make subrogated claims under French law. Aggregate damages are pleaded in this claim as exceeding £25,000.
In respect of these various losses, the Claimants claimed on M Mouly's insurance policy with the Defendant. M Mouly's liability for the losses incurred was never disputed; nor was the Defendant's liability to indemnify him under the insurance contract between them. On 29 November 2012, the Defendant openly conceded that M Mouly was at fault, and indicated that the Claimants' claims would be dealt with.
The Claimants instructed solicitors in London, Pierre Thomas & Partners ("Pierre Thomas"), who wrote a letter of claim on 7 October 2013. The Defendant's claims handling office in Manchester responded on 11 November 2013, admitting full liability. During 2014, Pierre Thomas corresponded with the Defendant's claims handling office, and their claims handling agents in France. They wrote to the Defendant indicating that the Claimants intended to travel to the United Kingdom in order to be medically examined for the purposes of a medico-legal report. On 23 July 2014, the Defendant wrote to Pierre Thomas indicating that it considered such a trip unnecessary, and would serve only to drive up costs. It made clear that, in the circumstances, it was not prepared to pay for the flights and accommodation.
On 26 June 2015, the Defendant wrote to Pierre Thomas, nominating an address in Manchester for service of proceedings, namely where their UK Staff Counsel were based. Proceedings were issued on 29 July 2015, and served on 12 November 2015.
The Defendant instructed solicitors in Manchester, Plexus Law. Ms Lorien Helm of that firm contacted Ms Maud Lepez of Pierre Thomas (who was handling the claim for the Claimants) to query why proceedings had been issued in England, when the accident and damage had occurred in Scotland and the claim had no connection with England. She appears to have replied that the claim had been issued in England because the Defendant had a registered office in England, and had given an address for service in England. Ms Helm does not appear to have then suggested that England as the appropriate jurisdiction for the claim would, or might be, challenged.
On 30 November 2015, an acknowledgment of service was filed by a member of Ms Helm's team, Mr Simon Kingston. On that form, the box by "I intend to defend all of the claim" was ticked; the box by "I intend to contest jurisdiction" was not. The rubric of the form stated:
"If you do not file an application to dispute the jurisdiction of the court within 14 days of the date of filing this acknowledgment of service, it will be assumed that you accept the court's jurisdiction and judgment may be entered against you."
Given the later application concerning jurisdiction, in paragraph 15 of her statement of 8 January 2016, Ms Helm explains as follows:
"Incorrectly this acknowledgment indicated an intention to defend the claim and did not suggest that jurisdiction would be challenged. This was because the jurisdiction issue was not considered by Mr Kingston at the time of the form. I apologise to the Court on behalf of my firm for this oversight. I wish to emphasise, however, that it was not the case that the Defendant had determined to accept jurisdiction. It was because Mr Kingston did not realise that there was a jurisdiction issue."
That was because, at that stage, there was no jurisdiction issue apparent. Ms Helm continues (paragraph 16):
"On 11 December 2015 a representative of the Defendant wrote to Mr Kingston asking him to consider jurisdiction as the accident was in Scotland and therefore proceedings should be before the Scottish courts. The email contains privileged information (which is not waived). The Defendant's instructions were to seek to challenge jurisdiction if possible."
The 14 day period referred to on the form of acknowledgment of service, reflects the requirement of CPR Rule 11.1(4)(a), to which I shall return. As the acknowledgment was filed on 30 November, any application contesting the court's jurisdiction had to be made by 14 December 2015.
On 14 December 2015, however, Mr Kingston spoke to Ms Lepez and agreed an extension of 14 days for the Defence. A challenge to the jurisdiction of the English court was not mentioned as even a possibility. In view of the Christmas holiday period, the time for Defence was later extended to 8 January 2016. Ms Helm says (paragraph 18 of her statement) that she instructed Counsel on 30 December 2015, she responded on 6 January 2016, and the application with which I am now concerned was issued on 8 January 2016. The application was initially listed before Master McCloud on 8 June 2016, when she adjourned it into the judge's list with a time estimate of one day. Thus, the application came before me.
The Law
Much of the law is common ground.
As I have already indicated, there are no issues in relation to the car rental agreement.
No issue arises out of the policy of insurance either. It is common ground that the Claimants have a direct right of action against the Defendant by virtue of regulation 2 of the European Communities (Rights against Insurers) Regulations 2002 (2002 SI No 3061), which transposes article 3 of Directive No 2000/26/EC of the European Parliament and Council ("the Fourth Motor Insurance Directive"). Under regulation 2, where "an entitled party" has a cause of action against an insured person in tort or delict, and that cause of action arises out of an accident, then:
"… the entitled party may, without prejudice to his right to issue proceedings against the insured person, issue proceedings against the insurer which issued the policy of insurance relating to the insured vehicle, and that insurer shall be directly liable to the entitled party to the extent that he is liable to the insured person."
Each Claimant is an "entitled party", and each has a cause of action against M Mouly for damage...
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