Robin Stait v Cosmos Insurance Ltd Cyprus
| Jurisdiction | England & Wales |
| Judge | Lady Justice Whipple,Lord Justice Popplewell,Lord Justice Underhill |
| Judgment Date | 01 November 2022 |
| Neutral Citation | [2022] EWCA Civ 1429 |
| Docket Number | Case No: CA-2022-000146 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
[2022] EWCA Civ 1429
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division)
Lord Justice Popplewell
and
Lady Justice Whipple
Case No: CA-2022-000146
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DISTRICT JUDGE GRIFFITH
HIGH COURT OF JUSTICE
KING'S BENCH DIVISION,
BIRMINGHAM DISTRICT REGISTRY
CASE NO: G90BM160
Royal Courts of Justice
Strand, London, WC2A 2LL
Sarah Prager and Henk Soede (instructed by Irwin Mitchell LLP) for the Appellant
Alistair Mackenzie (instructed by Weightmans LLP) for the Respondent
Hearing dates: 6 October 2022
Approved Judgment
This judgment was handed down remotely at 10am on 1 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives
INTRODUCTION
This is an appeal by Robin Stait, a 39 year old man who suffered serious injuries in a cycling accident in Cyprus on 24 October 2017. He is an RAF officer who was at the time stationed at the Sovereign Base Area at Akrotiri (“the SBA”). The accident occurred on a road outside the SBA, in the Republic of Cyprus. By proceedings issued on 29 October 2020 in the Birmingham District Registry of the King's Bench Division of the High Court, he sued the insurer of the driver of the car which had emerged from a side road and had, he alleged, caused the accident to occur. That driver was insured by Cosmos Insurance Limited of Cyprus, an insurance company domiciled in Cyprus and the respondent to this appeal (“Cosmos”).
By an application dated 9 December 2020, and in answer to the proceedings issued by Mr Stait, Cosmos sought a declaration under CPR Part 11 that the courts of England and Wales had no jurisdiction to try this claim.
By a judgment handed down on 24 June 2021, DJ Griffith granted Cosmos' application. He held that Mr Stait was not domiciled in England and Wales at the time proceedings were issued and that in consequence the courts of England and Wales lacked jurisdiction. He set aside service of the claim form.
Mr Stait appealed that judgment. On 11 November 2021, Andrew Baker J granted permission to appeal and “leapfrogged” the appeal direct to the Court of Appeal pursuant to CPR 52.23(1).
The issue before this Court is therefore one of domicile: was DJ Griffith wrong to decide that Mr Stait was not domiciled in England and Wales at the material time?
FACTS
I take the following explanation of the accident from the Particulars of Claim and accompanying medical report. I do not understand there to be any dispute about these matters, but what follows is of course without prejudice to future arguments about the circumstances of the accident or the injuries sustained.
On 24 October 2017, Mr Stait was riding his bicycle along the main public highway from Limassol to Paphos in the Republic of Cyprus, when a vehicle driven by Mr David Twist emerged from a side road directly into the path of Mr Stait, who forcefully braked to avoid collision with Mr Twist's vehicle and was thrown from his bicycle to the ground.
Mr Stait was born on 27 July 1983 and was 34 at the time of the accident. He suffered a left hip dislocation complicated by fractures of both the acetabulum (hip socket) and femoral head (ball). He has irreversible post-traumatic osteoarthritis of the hip joint. He underwent surgery and extensive post-operative physiotherapy. He may still be at risk of avascular necrosis in the hip joint.
The Claim Form puts the value of the damages claimed for these injuries at more than £10,000 but less than £200,000. In other papers before the Court, the value is estimated at around £100,000.
Mr Stait's personal circumstances are set out in a witness statement dated 1 April 2021, which was before the judge, and was not contested at the hearing below. He is an RAF Information Communications Technician (Electronics). He joined the military in 2002 when he was 18 years old. He undertook basic training at RAF Halton and has been in the RAF ever since. He worked initially at RAF Cosford for 18 months undertaking electronics training. He then obtained a post in communications equipment repair at RAF Brize Norton from 2003 to 2007. He worked at RAF Spadeadam in Cumbria from 2007 to 2013, during which time he met his wife, married, and they had their first child. In 2013 he moved to RAF Scampton in Lincolnshire with his family, where he stayed until 2016.
In 2016, he started work on a 5 year contract as an electronic equipment technician for the RAF in the SBA. This was a posting for which he voluntarily applied, not one which he was required to take. He intended to return to the UK when that contract expired, to continue working for the RAF. (I interpose to say that we were told that he did return to the UK in 2021, and now lives here.)
He was born in Gloucester, where his family remains. He and his wife own a two bedroom house in Cumbria, which they rented out while they were stationed in the SBA. Mr Stait's evidence does not reveal whether they lived in it at any time or, if so, for how long. They both retained UK bank accounts while they were away, and both held investments in the UK. Mr Stait has a UK driver's licence and a UK pay-as-you-go mobile phone. He remained on the UK electoral register throughout his time stationed in the SBA. He paid UK tax and National Insurance on his RAF income which was paid to his UK bank account.
After the accident, his medical treatment was initiated at the RAF Akrotiri Medical Centre which operates as part of the UK NHS. He has an NHS number. He was then transferred to the Queen Elizabeth Hospital, Birmingham for surgery on his hip and follow up appointments.
As an RAF Officer stationed in the SBA, he lived with his family in accommodation provided on the air base. His children attended the RAF Akrotiri primary school which is the responsibility of the Ministry of Defence. At the appropriate ages, they graduated to the secondary school on the base which is also the responsibility of the MoD. They followed the English curriculum. The MoD provided funding for one return visit to the UK every year while the family was stationed at the SBA, either using RAF aircraft or reimbursing the cost of commercial flights.
While stationed there, the appellant learnt a few words of Greek but he worked and socialised in English, which is the language commonly used on the base. He retained his UK passport and remained a citizen of the United Kingdom.
THE SBA
As part of the background to this appeal, it is necessary to explain the status of the SBA. The SBA has never been part of Cyprus. Nor has it ever been part of the UK. It is not and never has been part of the EU. It is a former colony, now known as a British Overseas Territory. The SBA retains strong connections with the UK, and the UK retains an RAF base on it.
The island of Cyprus was until 1960 a British colony. In 1960 it gained independence. The territory of the Republic of Cyprus excludes the SBA (and the other sovereign base area of Dhekelia, both of which remain under the sovereignty of the United Kingdom in accordance with the provisions of the Treaty Concerning the Establishment of the Republic of Cyprus). The Republic of Cyprus became a Member State of the EU in 2004.
LEGAL FRAMEWORK
Recast Regulation
The claim was issued on 29 October 2020 which was during the transition period relating to the UK's exit from the European Union. Regulation 92 of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 applied, interpreted by reference to paragraph 1(1) of Schedule 5 to the European Union (Withdrawal Agreement) Act 2020, which had the effect of preserving EU law as it applied to jurisdiction issues for the transition period.
That means that jurisdiction in this case is governed by Regulation (EU) 1215/2012 (the “Recast Regulation”).
Article 11.1 of the Recast Regulation provides as follows:
“1. An insurer domiciled in a Member State may by 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
(c) if he is a co-insurer, in the courts of the Member State in which proceedings are brought against the leading insurer.”
Article 13.2 provides that
“Articles 10, 11 and 12 shall apply to actions brought by the insured party directly against the insurer, where such direct actions are permitted.”
When read together, the effect of those provisions is to permit a claimant to sue an insurer in another Member State, provided certain conditions are met, in what is called a direct action. That is the effect of the judgment of the Court of Justice of the European Union in Case C-463/06 FBTO Schadeverzekeringen NV v Jack Odenbreit [2007] ECR I-11321, see [26]–[31]. That case was concerned with the equivalent provisions in the predecessor regulation 44/2001. At [28], the Court explained the reason for permitting an injured person to bring a direct action in the courts of the Member State where that injured person was domiciled, namely to afford equivalent protection to that person who was regarded as vulnerable (emphasis added):
“…. To deny the injured party the right to bring an action before the courts for the place of his own domicile would deprive him of the same protection as that afforded by the regulation to other parties regarded as weak in disputes in matters relating to insurance and would thus be contrary to the spirit of the regulation.”
Direct actions by an injured person against an insurer are permitted in the courts of England and Wales, by operation of the European Communities (Rights...
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