Paul Jamieson v Wurttemburgische Versicherung AG
| Jurisdiction | England & Wales |
| Judge | Master Davison |
| Judgment Date | 05 February 2021 |
| Neutral Citation | [2021] EWHC 178 (QB) |
| Date | 05 February 2021 |
| Court | Queen's Bench Division |
| Docket Number | QB-2018-005408 |
[2021] EWHC 178 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Davison
QB-2018-005408
Mr Harry Steinberg QC (instructed by Stewarts Law LLP) for the Claimant
Ms Sarah Crowther QC (instructed by DWF LLP) for the First Defendant
Mr Richard Viney (instructed by Clyde & Co LLP) for the Second Defendant
Hearing date (via Microsoft Teams): 1 February 2021
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
What follow are my reasons for refusing to lift the stay of these proceedings which was imposed by a consent order of 28 September 2018. When I announced at the conclusion of the hearing that I would give judgment in writing, I said that my reasons would be brief. As to that, I have the excellent example of the judgments of the German courts referred to below, whose economy of language and expression I can only try to emulate. Consistently with that intention, I will avoid extensive citation of authority and I will recite only the key statutory provisions, which are contained in Regulation No 1215/2012 on jurisdiction and the recognition of judgments in civil and commercial matters (the “Recast Regulation”).
On 17 September 2016 the claimant, then aged 44, was injured in a road traffic accident in Munich. He was working as a commodities broker for the second defendant. He was attending the Oktoberfest with clients, whom he was entertaining. He was walking from the beer hall to his hotel. He crossed a busy highway and was struck by a taxi, sustaining very severe injuries. The precise circumstances of the collision are in dispute. The taxi was insured by the first defendant, against whom the claimant has a direct right of action.
The claimant instructed Stewarts solicitors to represent him. They entered into pre-action correspondence with Van Ameyde UK Ltd, who were the first defendant's UK representatives. That correspondence began in April 2017 and in their first letter Stewarts asked Van Ameyde to confirm that they would not issue proceedings in another jurisdiction. They received only a holding response and their request for confirmation as to the first defendant's position in respect of other proceedings was not answered. The pre-action protocol correspondence continued throughout the remainder of that year and into 2018. On 8 March 2018 and more clearly on 30 April 2018, Van Ameyde disclosed to Stewarts that the first defendant had issued proceedings in Germany for a negative declaration, i.e. a declaration that they were not liable for the accident. Those proceedings had been issued on 18 July 2017. Stewarts then issued protectively in England on 10 May 2018.
For the first defendant to have issued in Germany (having been asked to confirm that they would not do that very thing and having studiously avoided answering a straight question about it) was somewhat lacking in transparency. It was also, I infer, intended to advantage the first defendant and disadvantage the claimant by removing from him the opportunity to litigate his claim in England, where he lives. That was (as the first defendant must be taken to have known) contrary to the structure and intention of the Recast Regulation which conferred on the claimant the option to pursue his claim either here or in Germany. The effect of the first defendant's action was to deprive the claimant of this option because it then became incumbent on the English court to stay the English proceedings in favour of the German ones; see Article 29(1) of the Recast Regulation below. That was not done and on 19 June 2018, the first defendant applied to challenge the jurisdiction of the English court. On 12 September 2018, the second defendant (having been served with the claim on 30 August 2018) followed suit. On 28 September 2018, the parties agreed a consent order in these terms:
“The claimant's claim against the defendants be stayed until the resolution of the proceedings currently before the Munich Regional Court … involving the claimant and the first defendant, or any stay of those Munich proceedings in favour of these proceedings.”
The claimant instructed German lawyers, Wach und Meckes, to represent him in the German proceedings and they filed a response challenging jurisdiction. On 8 May 2020 the Munich Regional Court ruled that the German proceedings should be suspended in favour of the proceedings in the English High Court. The reason was that it had not been until 13 June 2018 that the first defendant (the claimant in those proceedings) had supplied the court with the claimant's correct address for service. It was on that date that the Regional Court found that it was “deemed seised”. That order was, however, set aside by the Munich Higher Regional Court on 14 December 2020. The Reasons supplied stated that the appeal was “justified”. However, the Higher Regional Court went on to find that the claim for a negative declaration was inadmissible because it undermined the right of an injured party under Articles 11(1)(b) and 13(2) to bring his claim in his country of domicile – which right was intended to ensure a regime more favourable to the “weaker party” in accordance with Recital 18 to the Recast Regulation. They found that Article 29 was subordinate to this principle and invited the first defendant to withdraw the claim. The first defendant came in for some sharp criticism. Its negative declaratory action was labelled a “torpedo action”. And Article 29 was said to require limits to be imposed on it “where, as here, it only serves the abusive conduct of the economically stronger liability insurer to delay a proper settlement”. In so finding, the Higher Regional Court was aligning itself with what I might call the “consumer” side of a debate that German courts have (I was told) not always ruled upon consistently. The first defendant regards this as a point upon which a decision of the Bundesgerichtshof, (Germany's highest civil court), and/or of the Court of Justice of the European Union, via a reference, is required. It is a point going to jurisdiction not seisin and it is one that, as Mr Steinberg QC for the claimant rightly observed, might take several years to resolve.
In an order dated 25 January 2021, the Regional Court has concurred with the legal opinion of the Higher Regional Court and has given the first defendant an opportunity to clarify whether it intends to withdraw. For the reasons expressed at the conclusion of this judgment, it is to be hoped that the first defendant will do so. But I have to resolve the present applications on the basis that they...
To continue reading
Request your trial