Derrick Tate v Allianz Iard SA (a company incorporated under the laws of France)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 27 November 2020 |
| Neutral Citation | [2020] EWHC 3227 (QB) |
| Date | 27 November 2020 |
| Docket Number | Case No: QB-2019-003770 |
| Court | Queen's Bench Division |
[2020] EWHC 3227 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Soole
Case No: QB-2019-003770
Ms Lucy Wyles (instructed by Pierre Thomas & Partners) for the Claimant
Mr Bernard Doherty (instructed by DAC Beachcroft Claims Ltd) for the Defendant
Hearing date: 1 October 2020
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.
This is an application by the Defendant insurer to dismiss, alternatively stay, this action pursuant to the lis pendens provisions of Articles 29 or 30 of Regulation (EU) No. 1215/2012 (‘Brussels 1 recast’).
The Claimant is a British national domiciled in the United Kingdom. The Defendant insurer is domiciled in France. On 20 February 1991 the Claimant suffered injury as a pedestrian in Boulogne-sur-Mer when he was struck by a bus belonging to a local bus company and insured by the Defendant. The Claimant brought proceedings in France against the bus company and recovered compensation for his injury and loss. In the event of deterioration in a claimant's condition, French law allows a further claim, known as an ‘action en cas d'aggravation’, to be made for additional compensation.
By this action, commenced by Claim Form issued on 23 October 2019, the Claimant seeks damages against the Defendant for the alleged deterioration in his condition. There is no dispute that the allocation of jurisdiction for this claim is governed by Brussels 1 recast; and that, subject to lis pendens, this Court has jurisdiction pursuant to Articles 11 and 13(2). However the Defendant contends that, by reason of proceedings allegedly pending in the French Courts and the provisions of Articles 29 or 30, this Court must decline jurisdiction, alternatively stay the action.
Essential narrative
In February 1994 the Claimant issued a claim in the Tribunal de Grande Instance in Boulogne-sur-Mer (‘the Boulogne Court’) against the bus company for personal injuries and loss sustained in consequence of the accident. Under French law pedestrians have, subject to certain inapplicable exceptions, a right to compensation for injuries and loss suffered as a result of an accident with a motor vehicle, i.e. without proof of fault. The bus company admitted liability.
In accordance with French practice in such claims, the Boulogne Court appointed a medical expert, Dr Daniou, to examine the Claimant and provide an independent report to the Court. That translated report dated 26 February 1996 identified a number of injuries including multiple fractures of the pelvis/left hip. The overall level of ‘partial permanent incapacity’ was assessed at 8%; and pain and suffering at level 5 on a scale of 7.
Dr Daniou identified the ‘consolidation date’ for the injuries as 1 March 1993. As the parties' experts in French law agree, under French law the consolidation date is the date when the claimant's state of health is deemed to have stabilised, i.e. so that it is not expected to get better or worse. Compensation of past and future losses is assessed by reference to the consolidation date.
However this is subject to an ‘action en cas d'aggravation’. Under French law this is the right for a claimant to bring a claim for further damages in the event of a deterioration in his or her condition after the consolidation date; and the action constitutes separate proceedings from those which led to the initial compensation. The starting point for such fresh proceedings is the consolidation date of the deterioration.
Under the heading ‘Aggravation/improvement’, Dr Daniou had concluded in his report that, based on the x-ray results, there was a likelihood that the Claimant would need to be fitted with a femoral head prosthesis. The agreed translation continues: ‘In fact, the femoral head and femoral neck in the left leg are in poor condition. Hence a provision should be made for such fitment in a short period of time after which another examination would then be desirable.’
On 20 April 1999 the Boulogne Court gave judgment for the Claimant in the total sum of 234,770 FF, supplemented by 8,000 FF in a ‘rectifying judgment’ dated 22 June 1999. The judgment of 20 April also awarded the costs of fitting and replacing prostheses ‘on production of supporting documentation’.
The Claimant considered this all to provide inadequate compensation and appealed the judgment to the Court of Appeal of Douai (‘the Douai Court’). The appeal was successful in that by its judgment dated 6 May 2004 the Douai Court increased the award to a total sum expressed in Euros and Sterling as €27,095.30 and £25,741.22.
In its judgment the Douai Court noted the absence of evidence that a prosthesis procedure had been carried out and refused the requested award of £10,075. However it continued: ‘…should the operation be carried out later, he will have to present a new claim for aggravation of his injuries; it is consequently appropriate to simply reserve his rights under this head of loss.’ This is matched by an earlier passage in which the Court ‘Takes due note that Mr Tate reserves his rights in the event that his condition should worsen, especially if he were to proceed with the fitment of a prosthesis of the femoral head.’
On the Claimant's case in this present action, his condition – in particular of his hip – had deteriorated since 1996. A prosthesis was inserted in the left hip in November 2005. In accordance with French practice, medical experts were instructed by the parties to jointly assess the deterioration. By joint report dated 25 February 2016, Drs Chemin and Sannier concluded that the ‘aggravation’ dated from 18 March 1996 and that the ‘consolidation date’ of the aggravation was 10 February 2011. The report assesses AIPP (‘permanent impairment of physical and mental integrity’) at 20%, namely a 12% aggravation from the previous impairment of 8%.
The Claimant did not present a claim of ‘aggravation’ to a French Court, but instead issued these proceedings in October 2019.
Brussels 1 recast
Brussels 1 recast is the successor to the Council Regulation (EC) No 44/2001 (the 2001 Regulation), which itself replaced the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (the 1968 Convention). At least for the purposes of this application, it is common ground that the relevant provisions of Brussels 1 recast are in substance unchanged; and accordingly that the authorities based on the two previous instruments have continuing application.
The Recitals include:
(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor…
(16) In addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen…
(18) In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.
…
(21) In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in different Member States. There should be a clear and effective mechanism for resolving cases of lis pendens and related actions, and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation, that time should be defined autonomously.
The Articles include:
CHAPTER II — JURISDICTION
SECTION 1
General provisions
4(1) Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.
…
SECTION 3
Jurisdiction in matters relating to insurance
11 (1) An insurer domiciled in a Member State may be sued:
…(b) in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the claimant is domiciled; …
13 (2) Articles 10, 11 and 12 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.
…
SECTION 9
Lis pendens — related actions
29 (1) Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
29 (2) In cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article 32.
29 (3) Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.
30 (1) Where related actions are...
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...and the most recent (7 th, 2021) edition of Briggs, Civil Jurisdiction and Judgments; also Tate v Allianz IARD SA [2020] EWHC 3327 (QB); [2021] R.T.R. 24. 49 As to Easygroup, this endorses, as part of its ratio, Moore at [103]: see per David Richards LJ 5 at [19] and [20]. The parties disag......