Nafis Chowdhury v PZU SA
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 12 November 2021 |
| Neutral Citation | [2021] EWHC 3037 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QA 2021 000025 |
[2021] EWHC 3037 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ritchie
Case No: QA 2021 000025
( Sarah Prager instructed by Hugh James, Cardiff) for the Claimant
( Lucy Wyles instructed by Weightmans) for the Defendant
Hearing dates: 9 November 2021
Approved Judgment
The parties
The Claimant is a British citizen who suffered a road traffic accident in Poland on the 27th of August 2017.
The Defendant is an insurance company based in Poland which insured the other car involved in the said road traffic accident.
The issue
The issue in this appeal relates to whether the courts of England and Wales have jurisdiction to try a personal injury case brought by the Claimant against the Defendant arising from the aforesaid road traffic accident.
The Claimant asserts that he was domiciled in England at the relevant time and so the English courts have jurisdiction. The Defendant asserts that he was not so domiciled.
The appeal
By a notice of application dated the 23rd of October 2020 the Defendant applied for a declaration that the English courts do not have jurisdiction.
On the 5th of January 2021 master Brown heard the Defendant's application and dismissed it, ruling that the Claimant was domiciled in England and hence entitled to bring proceedings in England.
The Defendant appealed the master's ruling by a notice of appeal sealed on the 26th of January 2021 and served with grounds of appeal attached.
This appeal is heard under CPR rule 52. By rule 52.21 the appeal is limited to a review of the decision of the lower court unless this court considers that, in the interests of justice, a re-hearing should occur. By rule 52.21 (3) this court will allow the appeal where the decision of the lower court was either wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
Bundles and evidence
I had before me the notice of appeal, the grounds of appeal, skeleton arguments from both parties, the particulars of claim and schedule of loss, the Defendant's application notice, the order and judgment of master Brown, a medical report from doctor Price, a witness statement from John Richards dated 21st October 2020 and a witness statement from Nafis Chowdhury, the Claimant, dated 16th December 2020.
The chronology
The Claimant was born in Dakar on the 21st of April 1987 and is now aged 34. He moved to the United Kingdom at age 1. His parents lived in Worthing and he was brought up there. He went to school locally and was then educated at Cambridge University and graduated in 2008 with a 2:1 in economics. He started working for Goldman Sachs in 2008 in investment banking. He moved to J. P. Morgan Fund Management and worked there between 2008 and 2011. He then moved to Threadneedle Fund Management and worked there between 2011 and 2014 and finally in May 2014 moved to Artemis Fund Management. He worked there full time until June 2015 when he stopped work because he was ill.
When he was well he would go to the gym three or four times a week, play squash and tennis and enjoyed mountain biking. However, in mid 2014 he moved into a flat in Earls Court, it was rented and it was mouldy. On his case, two weeks later he began to be unwell and developed rashes and other symptoms. A mould expert reported in December 2015 that there was a high level of injurious spores in his flat so he moved out in January 2015. However, on his case, he suffered mould toxicosis and he left work in June 2015 to gain treatment for that condition. On his case he aimed to return to work by the final quarter of 2017. He was in a high paid job earning he says more than £200,000 pa.
After going off on long term sick leave, between June and September 2015 the Claimant moved to the United States of America to gain access to specialist mould toxicosis treatment. There he was given the diagnosis of myalgia. During this time he was being paid 75% of his salary through PHI insurance. He returned to the UK and then went back out again to the United States in October 2015, staying for six months until April 2016, where he received a different type of treatment from a different medical specialist.
Returning to England in April 2016, he had treatment from English doctors throughout that year and running through 2017 up until the August. He improved. During this time he had a Polish girlfriend and in July 2017 he went with her on a tour round Europe through Brussels and Germany ending up in Poland. Also that month he went on a trip to France. Also that month he moved into a flat in Putney. In August of 2017 he flew to Poland for a wedding with his girlfriend and it was on the 27th of August 2017, when he was a rear seat passenger in a Mercedes, that a forceful road traffic accident occurred with a Volkswagen Lupo driven by a person insured by the Defendant.
Liability for the accident was admitted two years later: on the 13th of August 2019.
On the Claimant's case he suffered soft tissue injuries, was knocked out and suffered lung contusions but no bony injuries. He was in hospital in Poland for five days and was unfit to fly for approximately a month. He returned to England then and he sets out his various complaints of symptoms in his witness statement. He suffered electrical shocks in his arms and legs, pain, reduced cognition and memory, irritability, reduced balance, depression, anxiety and nightmares, limb collapse, ankle swelling and migraines.
The Claimant relied before the master on a medical report from a neuro psychiatrist called doctor Price, dated February 2020. In that report he diagnosed post traumatic stress disorder, anxiety disorder and somatic symptom disorder together with mild traumatic brain injury. He also noted that the Claimant had healthcare seeking behaviour before the road traffic accident and was a vulnerable person. He suggested cognitive behavioural therapy and antidepressant treatment.
Picking up the story after the road traffic accident, by September 2017 the Claimant was living in his rented flat in Putney and through the rest of 2017 into April 2018 he continued to live there. In the March of 2018 he took a trip to Belgium for treatment for chronic fatigue syndrome. Then, in the April of 2018, he moved to Germany to get what he considered would be better treatment from a hospital in Heidleberg. He spent three days in that hospital in May of 2018 with suspected infective carditis and thereafter, having rented accommodation, he stayed near that hospital with his carer, for his continuing treatment.
The potential personal injury claim resulting from mould in the Earls Court flat was issued and then withdrawn.
Covid emerged in March of 2020 in England which, on the Claimant's case, restricted the number and duration of trips that he could take back to the United Kingdom. He also asserted that he had a fear of flying attributable to his injuries and covid. In any event the Claimant did return to England for four weeks. During that time he stayed with his parents and with his friends.
The summary of the claim and defence
The Claimant's personal injury claim was issued by his solicitors, Hugh James, based in Cardiff, on the 25th of August 2020.
The Defendant admits liability but denies jurisdiction.
The facts
The master's findings of fact are set out in the transcript of the extempore judgment at paragraphs 2 to 6; 19 to 28 and 33–41.
None of the master's findings of facts were challenged on appeal except for residence.
The Law – “domicile” and “resident in the UK” or “part” of the UK or a “place” in the UK
The road traffic accident occurred when England and Wales were in the European Union. The standard rule was that an EU national who was a Defendant to a claim was to be sued in the State of his or her own domicile: see EU Regulation 2015/2012 Art 4.
The standard rule was subject to a qualification which entitled all persons domiciled in the EU to sue insurance companies in tort actions in their own State of domicile wherever the cause of action may have arisen in the EU.
So by EU Regulation 2015/2012, on jurisdiction (recast):
“Art 11. An insurer domiciled in a Member State may be sued:
(a) in the courts of the Member State in which he is domiciled;
(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; or …”
“Art 13.
1. In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured.
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.
3. If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.”
Pursuant to a ruling in FBTO Schadeverzekeringen NV v Jack Odenbreit (Case C-463-06) the European Court of Justice interpreted the provisions which are set out above as entitling an injured party, who could bring an action directly against the insurer, to do so before the courts in the Member State where that injured party was domiciled (paras 26 – 31).
By para. 9 of the Civil Jurisdiction and judgments Order 2001/3929 (which is very similar in the relevant wording to S.41 of the Civil Jurisdiction and Judgment Act 1982):
9.—Domicile of individuals (section 41)
(1) Subject to [Article 62] 1 (which contains provisions for determining whether a party is domiciled in a Regulation State), the...
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