Lyndsey Caroline Gunn (a protected party, by her litigation friend Lesley Barbara Gunn) and Others v Gerardo Diaz and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 03 February 2017 |
| Neutral Citation | [2017] EWHC 157 (QB) |
| Docket Number | Case No: HQ15P00778 |
| Court | Queen's Bench Division |
| Date | 03 February 2017 |
[2017] EWHC 157 (QB)
The Honourable Mrs Justice Andrews DBE
Case No: HQ15P00778
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Chirag Karia QC (instructed by Holman Fenwick & Willan LLP) for the Sixth Defendant
Howard Palmer QC (instructed by Slater & Gordon LLP) for the Claimants
Hearing dates: 17 January 2017
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
This is an application by the sixth defendant ("INS"), to set aside service of the Claim Form and the Particulars of Claim on it out of the jurisdiction, and for a declaration that the English court has no jurisdiction over it. INS is a Costa Rican state-owned insurance entity constituted and organised pursuant to the Costa Rican National Insurance Institute Act No. 12 of 30 October 1924. It has no presence within this jurisdiction, and conducts no business here.
It is accepted by the claimants that on the current state of the law, the application must succeed, unless they are permitted to rely upon a jurisdictional "gateway" under Practice Direction 6B to CPR Part 6 ("PD 6B") upon which none of them sought to rely at the time of their application for permission to serve out. The second, third and fourth claimants contend that they are in a different position from the others so far as the jurisdictional gateway upon which they did rely is concerned, but as they have no claim against INS, their position is of less importance in the context of this application.
The gateway upon which the claimants now seek to rely is the "necessary or proper party" gateway under PD 6B paragraph 3.1(3). This provides that permission may be granted to serve outside the jurisdiction where:
"A claim is made against a person "the defendant" on whom the claim form has been or will be served (other than in reliance on this paragraph) and
a) There is between the claimant and the defendant a real issue which it is reasonable for the court to try; and
b) The claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim."
This rule replaced the former RSC Order 11 rule (1)(1)(c), which in its original form was couched far more narrowly, in that before permission could be granted to serve a defendant out of the jurisdiction as a necessary or proper party, the anchor defendant had to have been duly served within the jurisdiction. That rule was extended in 1988 to encompass an anchor defendant duly served within or outside the jurisdiction. Under the present formulation of the rule, at the time when permission to serve out of the jurisdiction is sought, the anchor defendant may also be someone who has yet to be served, either in or outside the jurisdiction. That means that the claim against him may be one in respect of which extra-territorial jurisdiction is exercised under some different gateway in PD 6B.
The claims in this action arise out of a road traffic accident which occurred in the San Carlos area of San José in Costa Rica, on the morning of 21 March 2009. The first (and principal) claimant, Lyndsey Gunn, then aged 34 and working as a chartered accountant with PricewaterhouseCoopers in London, was taking part in an organised group bike ride when her bicycle was hit by an oncoming Suzuki motor car. That vehicle was in the process of overtaking a lorry, and was therefore on the wrong side of the road and travelling at some speed. Road conditions were good, and visibility was clear. She suffered life-changing injuries, including a serious head injury, for which she was initially treated in hospital in Costa Rica before being flown back to England, where she has received specialist treatment.
Ms Gunn's rehabilitation has been a long and slow process; she still suffers from significant cognitive impairment which limits all aspects of her decision-making, and needs a wheelchair to mobilise. As she is a patient and lacks capacity, she brings these proceedings by her litigation friend, her mother, who is also a claimant in her own right.
The vehicle which ran into Ms Gunn had been hired by the first defendant, ("Diaz") a US citizen domiciled in Florida, who was visiting Costa Rica on business, from the fourth defendant ("Sixt"), a car hire company, on 10 March 2009. It was part of a fleet of vehicles leased by Sixt from their owner, the fifth defendant, ("Citi") under a Financial Leasing Contract dated 9 November 2007. The lease term was 48 months from the date of the delivery order for the last car. Sixt and Citi are both Costa Rican registered companies. The Financial Leasing Contract is expressly subject to Costa Rican law.
The only person named as an additional driver in the hire contract was the third defendant ("Cruz"). At that time, Cruz ran a business in San José with the second defendant ("Cornieles"). Diaz was a customer of theirs. Both Cruz and Cornieles are domiciled in Costa Rica.
It is common ground that by article 4(1) of Regulation EC 864/2007 (commonly referred to as " Rome II") the law of the country in which the accident took place, namely Costa Rica, is applicable to any claims brought in tort. The claimants' legal expert, Mr Federico Torrealba, explains that Costa Rican law operates a principle very similar to the English concept of " res ipsa loquitur" but even without it, the case against the driver appears unanswerable on liability. Realistically, if there were to be any significant dispute about the claim for damages for personal injury (other than a possible dispute as to the driver's identity) it would be about quantum.
By article 15 of Rome II, Costa Rican law also governs the assessment of damages, though the actual circumstances of the claimant, including the losses suffered and costs incurred by Ms Gunn in England in consequence of her injuries, are to be taken into account in the assessment by virtue of Recital 33. On the evidence of Mr Torrealba, it would appear that Costa Rican law approaches the issue of damages in much the same way as English law, with a similar division between economic and non-economic losses.
The second, third and fourth claimants are Ms Gunn's father, mother and sister ("the relatives"). Under the law of Costa Rica, a parent, sibling or other person who has a special emotional link to the injured party, has a personal right to bring a "moral damages" claim for compensation for the suffering that he or she experiences from seeing their injuries. In addition, as Mr Torrealba explains:
"the courts also consider the changes in the life of the close relatives, for example, if they have sacrificed their usual activities in order to help and support the victim. These damages are known in Costa Rica — following the French legal doctrine — as indirect, reflex or par ricochet damages."
The relatives' claims are pleaded in paragraph 33 of the Particulars of Claim as follows:
"As a result of the accident and/or by reason of the negligence and/or fault and/or breach of Costa Rican law of the driver of the vehicle the Second, Third and Fourth Claimants have suffered pain and injury, and have sustained loss and damage for which they claim damages including "ricochet" damages pursuant to Costa Rican law.
Particulars of injury, loss and damage of the second third and fourth claimants
The Second, Third and Fourth Claimants have suffered personally as a result of the fact that the First Claimant has sustained injuries. Furthermore, they have each spent time caring for, helping and supporting the First Claimant. Further particulars will be provided in due course." (my emphasis).
The fifth and sixth claimants are English insurance companies who were respectively the providers of healthcare insurance and travel insurance to Ms Gunn. They bring their claims on the basis of various provisions of Costa Rican law pursuant to which insurers who have paid sums to, or on behalf of the claimant in respect of injury, loss or damage arising from an accident can recover such sums from the liable tortfeasor.
It will be readily apparent from the foregoing overview that the only connections that this matter has with England are that (a) the claimants are all domiciled in England and (b) the losses consequential on Ms Gunn's personal injuries (including most of the costs of her medical care, and the loss and damage for which her relatives are entitled to claim in their own right) were largely incurred or suffered here.
THE CLAIM AGAINST THE DRIVER OF THE CAR
The driver of the car which ran into Ms Gunn and caused her injuries followed the ambulance to the hospital, but then absconded. His identity remains uncertain. Eyewitnesses told the public prosecutor of San Carlos investigating the accident that there were two men in the car, and gave descriptions of them; one said he would be able to identify the driver if he saw him again, but no identification procedure appears to have been carried out. The claimants have sued Diaz, Cornieles and Cruz in the alternative on the basis that one of them was the driver.
The public prosecutor's report dated 30 April 2009 indicates that Cruz made a voluntary statement to the prosecutor in...
To continue reading
Request your trial
-
Alexander Tugushev v Vitaly Orlov
...or (b) have been satisfied. That factor is only for consideration under the wider discretionary head of Issue 4.” 250 In Gunn v Diaz [2017] EWHC 157 (QB) Andrews J stated at [99]–[100]: “99. As to the second limb of sub-paragraph 3(a), the judgment in Erste Group Bank makes it clear at [78......
-
Satfinance Investment Ltd v Athena Art Finance Corporation
...following summary of the principles, relating to gateway 3, taken from the judgment of Andrews J, as she then was, in Gunn v Diaz [2017] 2 All ER (Comm) 129, at [86]: “i) The “necessary or proper party” gateway is anomalous, in that, by contrast with the other heads of jurisdiction, it is ......
-
Satfinance Investment Ltd v Inigo Philbrick
...hurdle for the claimant to surmount. 26 Mr Shepherd invited the court also to have regard to the judgment of Andrews J in Gunn v Diaz [2017] EWHC 157 (QB) at [86] in which she provides a summary of the principles that are applicable to an application made under paragraph 3.1(3): “i) The “n......
-
Lessons In Anchor Management
...and Proper Party Gateway set out in Erste Group Bank AG, London Branch v (1) JSC "VMZ Red October" [2015] EWCA Civ 379 and Gunn v Diaz [2017] EWHC 157. 3. See [97-99] of the 4. See [156] and [213] of the Judgment. The content of this article is intended to provide a general guide to the sub......