John Colin Graham v FidelidadeCompanhia De Seguros S.A.

Hearing dates: 17 and 18 July 2024

Approved Judgment

This judgment was handed down remotely at 2:00 pm on 31 July 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

By a claim form issued on 6 June 2022 the Claimant seeks damages for the injury, loss and damage he suffered in an accident in Portugal on 1 September 2021. He had crossed the road at a marked pedestrian crossing when he was hit by a vehicle insured by the Defendant.

In March 2022 the Defendant admitted liability to compensate the Claimant for his injuries, loss and damage in open correspondence

On 16 June 2022, an application was made without notice for permission to serve the claim form outside the jurisdiction on the Defendant at its registered address in Lisbon.

By orders made without notice on 31 August 2022 and 9 December 2022, Master McCloud granted the Claimant permission to serve the claim form on the Defendant out of the jurisdiction in Portugal and extended time for service of the claim form to 6 June 2023. Service was effected on 5 May 2023.

On 7 June 2023, the Defendant made an application seeking an order to set aside the orders extending time for service of the claim form; and declare that the court has no jurisdiction to try the claim.

The Defendant relied on, in particular, two witness statements from Marian Joseph, its solicitor, dated 7 June 2023 and 2 July 2024 (“Joseph 1” and “Joseph 2” respectively).

The Claimant contends that (i) the orders were properly made; and (ii) he can satisfy the jurisdictional requirements.

The Claimant relied on witness statements from Timothy Beasley, his solicitor, dated 18 June 2022 and 8 July 2024 (“Beasley 1” and “Beasley 4” respectively). The first of these had been provided in support of the 16 June 2022 application. He also sought to rely on a further witness statement from Mr Beasley dated 26 September 2023 (“Beasley 2”) but the Defendant opposed the admissibility of this evidence. The Claimant himself also provided a witness statement dated 6 February 2024.

Just over an hour before the hearing of the Defendant's application, the Claimant's counsel indicated that, if necessary, she intended to apply for an order that any procedural defects in the applications to extend time should be remedied using the court's power under CPR 3.10. Counsel then made this application during the course of the hearing.

This is my judgment on the Defendant's application dated 7 June 2023 and the Claimant's oral application.

The factual background

The Claimant is a British national. He was aged 58 at the time of the accident. The accident occurred when he was pushing his motorcycle across a marked crossing on a road between Malheiro and Portimão in Portugal. A silver VW Passat with registration number 40–35-ZN failed to stop and struck the Claimant causing him to sustain injury, loss and damage.

The VW Passat was driven by a resident in Portugal. The Defendant is the insurer of the VW Passat in respect of third party liabilities arising out of its use on a public road.

After the collision the Claimant was thrown into the air and landed some 20 metres or so further along the road. He was treated in a series of hospitals in Portugal. On 26 October 2021 he was transferred to a rehabilitation unit. On 24 November 2021 he was discharged.

The Claimant sustained severe injuries to his left leg, to which vascular grafting was attempted, but ultimately it was amputated at a high transfemoral level. He also sustained fractures to his pelvic area, lumbar spine and face, as well as his left hand, and right ankle and knee and internal injuries to his kidney and liver. He has suffered urological symptoms and psychological injuries. He sustained two heart attacks whilst in hospital which were treated surgically with stenting and angioplasty.

At the time of the accident the Claimant was on a break from work and had been travelling around Europe in a motorhome with his partner for around 8 years. He has a property in England which he had rented out in order to generate income while he was travelling. On 20 December 2021 the Claimant returned to live in his property in England and is now habitually resident in England.

The Claimant has significant care needs, including with toileting. He has considerable difficulty in mobilising with crutches due to his upper limb injuries. He has required substantial care and assistance from his partner. He has severe phantom leg pain and psychological issues coming to terms with the amputation. The Claimant's injuries are further detailed in a report dated 18 January 2022 prepared by Charles Wills-Owen, a consultant orthopaedic surgeon.

In March 2022 the Claimant was assessed by Dorset Orthopaedic, a specialist provider of rehabilitation and prosthetics services to amputees. The initial costs for a rehabilitation programme including a prosthesis trial are £118,528.55.

The Claimant's case is that he has been unable to access this due to financial difficulties caused by his inability to return to work as he had planned. The Defendant disputes this, contending that one interim payment has been made and a second promised, but delayed due to the Claimant's solicitor's failure to confirm the necessary bank account details. Beasley 4, dated 8 July 2024, indicates that the Claimant does now have a prosthetic leg provided by the NHS, but this is not appropriate for his needs such that it gives way and he has suffered falls. Beasley 4 suggests that there are different reasons for the second interim payment having been rejected. It is not possible nor necessary for me to resolve this particular issue between the parties for the purposes of resolving the applications.

The issues

The two overarching issues to be determined are:

(1) Should time be extended for service of the claim form ( “the extension of time issue”)?

(2) Do the courts of England and Wales have jurisdiction to hear and determine the matter ( “the jurisdiction issue”)?

These two issues involves several sub-issues, as follows:

(1): The extension of time issue

(a) Should the orders extending time for service of the claim form be set aside on the basis that the court had no power to make them, including because no applications for extensions had actually been made?

(b) If necessary should the Claimant be permitted to seek to cure the procedural defects in the applications at this stage, by making an application relying on CPR 3.10? If so, should the CPR 3.10 application be granted?

If, contrary to (a) and (b), applications for extensions of time had been made, that can now be reheard on notice:

(c): Should Beasley 2 be admitted?

(d): Should the orders extending time for service of the claim form be set aside on their merits?

(2): The jurisdiction issue

(a): Has the Claimant proved that the gateway test is met?

(b): Has the Claimant proved that the forum conveniens test is met?

(1): The extension of time issue

(a): Should the orders extending time for service of the claim form be set aside on the basis that the court had no power to make them, including because no applications for extensions had actually been made?

The law relating to extension of time for service of a claim form

CPR 7.5 makes provision for the methods that can be used for service of a claim form both within and out of the jurisdiction. Under CPR 7.5(2), where the claim form is to be served out of the jurisdiction, it must be served in accordance with Section IV of CPR Part 6 within 6 months of the date of issue.

CPR 7.6 provides as follows:

“7.6 Extension of time for serving a claim form

(1) The claimant may apply for an order extending the period for compliance with rule 7.5.

(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made –

(a) within the period specified by rule 7.5; or

(b) where an order has been made under this rule, within the period for service specified by that order.

(3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –

(a) the court has failed to serve the claim form; or

(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and

(c) in either case, the claimant has acted promptly in making the application.

(4) An application for an order extending the time for compliance with rule 7.5 –

(a) must be supported by evidence; and

(b) may be made without notice.”

CPR PD 7A, paragraph 11 provides as follows:

“ Extension of time

11.1 An application under rule 7.6 (for an extension of time for serving a claim form under rule 7.6(1)) must be made in accordance with Part 23 and supported by evidence.

11.2 The evidence should state—

(1) all the circumstances relied on,

(2) the date of issue of the claim,

(3) the expiry date of any rule 7.6 extension, and

(4) a full explanation as to why the claim has not been served”.

In Hoddinott v Persimmon Homes (Wessex) [2007] EWCA Civ 1203; [2008] 1 WLR 806 at [55], Dyson LJ (as he then was) made clear that the court should scrutinise applications for an extension of time for service of the claim form with care. As he explained at [54], there are good reasons for this. Service of the...