Mariusz Szrek & Ors v DIV-ING DOO & Ors
[2024] EWHC 219 (KB)
John Colin Graham v Fidelidade – Companhia De Seguros SA
31 July 2024
[2024] EWHC 2010 (KB)
High Court
A man was hurt in a car accident in Portugal. The insurance company admitted fault but argued the case should be in Portugal, not England. The judge ruled the case could stay in England because it would be much easier and fairer for the injured man, despite some mistakes in how the claim was started. The judge considered practical factors such as witnesses living in England and the severity of the man's injuries.
Key Facts
- •Claimant, a British national, suffered injuries in a road accident in Portugal caused by a vehicle insured by the Defendant.
- •Defendant admitted liability but challenged the court's jurisdiction and the extension of time for service.
- •Claimant's solicitor used irregular methods to obtain orders extending time for service, including email applications without formal application notices or statements of truth.
- •Claimant's injuries included a high transfemoral amputation and other severe injuries requiring substantial care.
- •The Claimant now resides in England.
- •The Defendant is a Portuguese insurer.
Legal Principles
Rules governing extension of time for serving claim forms (CPR 7.5, 7.6, PD 7A).
CPR 7.5, 7.6, PD 7A
Court's power to remedy procedural defects (CPR 3.10).
CPR 3.10
Principles for determining jurisdiction in service out cases (CPR PD 6B, Altimo Holdings).
CPR PD 6B, Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd
Forum conveniens test (Spiliada Maritime Corp v Cansulex Ltd).
Spiliada Maritime Corp v Cansulex Ltd
Interpretation of 'claim in tort' for jurisdictional gateways (Tulip Trading, Samsung Electronics, Youell).
Tulip Trading v Bitcoin Association, Samsung Electronics Co Limited v LG Display Co Limited, Youell v Kara Mara Shipping
Relevance of choice of law cases to jurisdictional gateways (Maher, Knight).
Maher v Groupama Grand EST, Knight v AXA Assurances
Considerations for granting extension of time (ST v BAI).
ST v BAI (t/a Brittany Ferries)
Admissibility of further evidence on rehearing of applications to set aside orders made without notice (Al-Zahra, Satfinance).
Al-Zahra v DDM, Satfinance Investment Limited v Athena Art Finance Corp
Outcomes
Defendant's application to set aside Master McCloud's orders extending time for service dismissed.
The court found that although the Claimant's solicitor's methods were irregular, the Claimant had made applications for extensions and the Master implicitly waived the procedural defects using her case management powers under CPR Part 3. The court found good reason, in context of the un-expired limitation period, for extending time for service in both instances.
Court found that England has jurisdiction to hear the claim.
The Claimant satisfied the gateway test (claim in tort with damage sustained within the jurisdiction) and the forum conveniens test (England being the clearly appropriate forum due to convenience factors, witness location, and the lack of significant legal differences that would outweigh convenience factors).