Dr Véronique Marie Elisabeth Simon v Ms Anne “Anouk” Taché
| Jurisdiction | England & Wales |
| Judge | Cawson |
| Judgment Date | 01 July 2022 |
| Neutral Citation | [2022] EWHC 1674 (Comm) |
| Docket Number | Case No: LM-2021-000059 |
| Court | Queen's Bench Division (Commercial Court) |
[2022] EWHC 1674 (Comm)
HIS HONOUR JUDGE Cawson QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: LM-2021-000059
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (QBD)
Rolls Building
Fetter Lane
London, EC4A 1NL
Timothy Sherwin and Alex Peplow (instructed by Suttons Solicitors) for the Claimant
James Ruddell (instructed by Fladgate LLP) for the Defendants
Hearing date: 8 June 2022
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 judgment was handed down by circulation to the parties' representatives by email and released to the National Archives. The date and time for hand-down is deemed to be 10.30am on Friday 1 July 2022.
HHJ Cawson QC
| CONTENTS | |
| Introduction | 1 |
| Evidence | 6 |
| Background | 8 |
| The Claimant | 8 |
| The Defendants | 12 |
| Dr Simon's introduction to the Defendants | 16 |
| The relationship between the parties | 18 |
| Belgian Proceedings | 26 |
| Permission to serve out obtained in England | 31 |
| Amendment to the Belgian Proceedings by the Defendants | 39 |
| English Proceedings issued | 43 |
| Further submissions in the Belgian Proceedings | 45 |
| Judgment in Belgian and appeal | 49 |
| Amendment Application | 54 |
| Articles 29 and 30 of Brussels Recast Regulation | 55 |
| Introduction | 55 |
| EU-UK Withdrawal Agreement | 56 |
| Article 29 of Brussels Recast | 61 |
| Article 30 of Brussels Recast | 64 |
| The application of Article 67 of Withdrawal Agreement | 66 |
| Does Article 29 apply so as to require English Proceedings to be stayed? | 76 |
| Application of Article 30 | 115 |
| The Defendants' contention that permission for service out ought not to have been granted | 121 |
| Introduction | 121 |
| Good arguable case as to the procedural gateway? | 123 |
| Serious case to be tried? | 173 |
| Is England the appropriate forum? | 176 |
| Conclusion | 196 |
| Amendment Application | 198 |
| Overall conclusion | 199 |
Introduction
By his Order dated 30 March 2021 (“ the Service Out Order”) HHJ Pelling QC, sitting as a Judge of the High Court, granted permission to the Claimant, Véronique Marie Elisabeth Simon (“ Dr Simon”), to serve the Claim Form, and any other documents which require to be served in the present proceedings, on each of the Defendants out of the jurisdiction in Belgium.
By application dated 30 July 2021 (“ the Jurisdiction Application”), the Defendants challenge jurisdiction on the basis that:
i) The Court should decline to hear, or should stay the present proceedings on a proper application of Articles 29 and 30 of the Regulation (EU) No 1215/2012 (“ Brussels Recast”); and
ii) In any event, the Court should set aside the Service Out Order, together with the Claim Form in the present proceedings and the service thereof, on the basis that Dr Simon is unable to show that, at the time of the Service Out Order:
a) She had a good arguable case that any of the grounds for service out of the jurisdiction set out in paragraph 3.1 of CPR Practice Direction 6B applied;
b) So far as the Defendants, Anne Taché (“ Ms Taché”) and Carole Lévy (“ Ms Lévy”) (together “ the Individual Defendants”), are concerned, she had a reasonable prospect of success in her claim as against them; and
c) In any event, England was clearly the appropriate forum for the determination of the issues raised by the present proceedings, i.e., the forum conveniens.
By application dated 16 November 2022 (“ the Amendment Application”), Dr Simon applies to amend her Claim Form and her Particulars of Claim in order to add as against the Individual Defendants a claim of dishonest assistance based upon a case that they dishonestly assisted the Third Defendant, Twig SRL (“ Twig”), to act in breach of its fiduciary duties owed to Dr Simon, and for permission to serve the amended claim out of the jurisdiction.
Amongst the many other issues arising for determination on the applications before me, the Jurisdiction Application raises novel questions for determination concerning the effect of Article 67 of the EU-UK Withdrawal Agreement (“ the Withdrawal Agreement”) on proceedings issued in the UK after the end of the transition period provided (31 December 2020), and as to whether, for the purposes of Article 32 Brussels Recast, this Court should “be deemed to be seised” of the present proceedings as from the making of the Service Out Order, or, alternatively, on the subsequent issue of the present proceedings (“ the English Proceedings”) on 10 May 2022, when the Claim Form was issued.
Dr Simon was represented by Timothy Sherwin and Alex Peplow of Counsel, and the Defendants were represented by James Ruddell of Counsel. I am grateful to them for their helpful and detailed written and oral submissions.
Evidence
The following evidence is before the Court in relation to the Jurisdiction Application and the Amendment Application:
i) The witness statements of the Defendants' Solicitor, Thomas Robert Bolam (“ Mr Bolam”), dated 30 July 2021, 17 December 2021 and 19 May 2022;
ii) The witness statement of Dr Simon's Solicitor, Stephen Sutton, dated 16 November 2021, made in support of the Amendment Application;
iii) The witness statement of Dr Simon dated 16 November 2021;
iv) The witness statement of Ms Lévy dated 17 December 2021; and
v) The witness statement of Jeremy Read (“ Mr Read”) dated 22 May 2022, made in support of Dr Simon's case.
In addition to the above evidence, on 12 January 2022, HHJ Pelling QC granted the parties permission to rely upon expert evidence on matters of Belgian procedural law, and the following expert evidence is before the Court:
i) The report of Prof. Jean-Francois van Drooghenbroeck (“ Prof. JFvD”) dated 14 December 2021, relied on by the Defendants;
ii) The report of Prof. Jacques Englebert (“ Prof. Englebert”) dated 2 March 2022, relied on by Dr Simon;
iii) The supplemental report of Prof. JFvD dated 19 May 2022; and
iv) The supplemental report of Prof. Englebert dated 23 May 2022.
Background
The Claimant
Dr Simon describes herself as a French national who has resided in London since March 2009, having then relocated from France. She is a qualified medical practitioner, who has specialised in cosmetic treatments. She says that she no longer practices medicine, preferring to: “focus on my interest in modern and contemporary art and interior design.” It is her evidence that her primary medical practice was in London, but that she had previously practised medicine in France, Turkey, Mexico and other parts of the World.
It is Dr Simon's evidence that she initially lived 34 Cadogan Place, London SW1, but subsequently lived and worked at 9A West Halkin Street, London SW1. A lease of this latter property dated 27 April 2015 to Simon Therapie Ltd (“ STL”), a company controlled by Dr Simon and incorporated in England and Wales through which Dr Simon used to run a medical practice, has been produced. The terms of this lease provide for commercial use only, and prohibit any residential use. In his witness statement, Mr Read refers to the fact that Dr Simon had a double sofa bed installed at 9A Halkin Street, and that she lived on the third floor between 2016 and 2018. However, I note that in a letter dated 2 February 2022, Ms Simon's solicitors referred to her having lived on the third floor of 9A Halkin Street “temporarily”.
Dr Simon refers to having purchased what she describes as her current residence at 8 Pelham Place, South Kensington, London in November 2016, but to this property requiring renovation such that she was unable to move into it full-time until August 2019. Notwithstanding this, she does describe 8 Pelham Place as “my home since 2016”.
It will be necessary to return further to the evidence relating to Dr Simon's residence in London in due course. However, there are a number of aspects thereof that require to be noted at this stage:
i) In her witness statement, Dr Simon refers to having opened a medical practice in Istanbul in 2012 to which she travelled once a month for 4–5 days for approximately six years. She says that she “became subject to UK tax in March 2019”, and that “I was non-domiciled but resident in the UK for tax purposes.” Her evidence in support of the application for service out of the jurisdiction had stated that: “For a period commencing in September 2016 during the tax year 2016–17, the Claimant was non-domiciled and non-resident in the UK on the advice of her accountant.” However, in her witness statement, Dr Simon says that she was “non-UK tax resident (and non-domiciled) for the 2015–2016 tax year”, and she describes the reference to the tax year 2016–17 in the application for permission to serve out as a “typographical error”.
ii) Returns made to Companies House in respect of STL referred to Dr Simon as being resident in Turkey between 29 September 2016 and 15 March 2021. Dr Simon seeks to explain this in paragraph 17 of her witness statement where she refers the fact that in the summer of 2016, she was working in both Istanbul and London and that, although she was in the UK for “extended periods”, she was “non-resident for UK tax purposes”. She says that, for this reason, her accountants filled in the relevant forms submitted to Companies House. As she puts it: “for compliance purposes at Companies House as I was no longer resident in the UK my accountants filed a change in my status and...
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