Jurisdictional Challenges – Key Takeaways From: Ibrahim v AXA Belgium [2024] EWHC 856 (KB)

The judgment of Grasp Fontaine in Ibrahim v AXA Belgium [2024] EWHC 856 (KB) makes for helpful studying on aid from sanctions purposes and jurisdiction challenges. This publish was written by Rebecca Henshaw-Keene.

The info: The declare was for damages for private damage sustained by the Claimant in a street site visitors accident in Belgium on 15 March 2019.

The purposes: The Defendant sought a declaration that the court docket mustn’t train jurisdiction over the declare on discussion board non conveniens grounds, and a keep of proceedings. 

Aid from sanctions

Sadly, the appliance was made 30 days after submitting the acknowledgement of service. CPR 11.1(4) dictates the appliance should be made inside 14 days.

It was agreed that to profit from an extension of time to make the appliance, the Defendant should fulfill the take a look at laid down in CPR 3.9 / the steerage given by the Court docket of Attraction in Denton v T. H. White Restricted [2014] EWCA Civ 906.

The applying was dismissed. The Grasp made the next factors:

The seriousness and significance of the breach: The Defendant relied on the truth that an utility for a keep on jurisdictional grounds might be made at any time within the proceedings, in contrast to an utility in search of an order that the court docket has no jurisdiction.

In [Texan Management Ltd & Ors v Pacific Electric Wire & Cable Company (Rev 2) [2009] UKPC 46], the Privy Council summarised the place:

“…it doesn’t observe {that a} defendant who fails to make an utility for a keep on the outset of proceedings is thereafter debarred from in search of a keep. The tight cut-off dates within the English CPR Half 11 and EC CPR r.9.7 make full sense within the case of purposes to put aside service or discharge an order for service out of the jurisdiction…”

… However these provisions don’t sit simply with purposes for stays. For instance, circumstances might change and a defendant might want to apply for a keep effectively after the proceedings have commenced…

A defendant served throughout the jurisdiction who has causes for making use of for a keep on discussion board conveniens grounds at the moment ought to usually make the appliance below EC CPR r.9.7/English CPR Half 11. It’s uncertain whether or not failure to make such an utility in time signifies that the defendant has conclusively accepted that the court docket ought to train its jurisdiction, however that won’t usually matter as a result of the court docket has an influence to increase the time for compliance with any rule, even when the appliance for extension of time is made after the time for compliance has handed: EC CPR r.26.1(2)(okay).

This didn’t help the Defendant the place the Court docket discovered there had been no change of circumstances, and the Defendant had been able to use for a keep on the outset of proceedings.

The rationale the Defendant had not achieved so was that they weren’t conscious of the English proceedings (extra on this beneath). It was unlikely that the Privy Council meant {that a} defendant’s personal mistake or inefficiency would represent a change in circumstances.

Turning to delay, the Defendant pointed to case legislation to recommend that delays in and of themselves might not essentially represent a severe and important default. Grasp Fontaine discovered this to be an incomplete reply to the breach. A profitable jurisdictional problem would power the claimant on this jurisdiction to discard their declare, and probably incur irrecoverable prices. They must pursue their declare in a jurisdiction which is more likely to be unfamiliar to them and in a language they might not know.

The 14-day interval set out in CPR 11.1(4) was restricted in order that breaches of time couldn’t be simply excused.

Why the default occurred: The Defendant accepted there was no good purpose for the breach. There had been misunderstanding or breakdown in communications between AXA UK and the Defendant AXA Belgium.

All of the circumstances of the case

The next issues had been materials:

The Defendant had did not notify the Claimant upfront of the intention to institute proceedings in Belgium when the Defendant had been corresponding with the Claimant or his English solicitors since March 2019, and waited till January 2024 to deliver proceedings in Belgium.

The Defendant was additionally conscious that the Claimant had undergone examination by English medical consultants and had produced studies for the aim of the proceedings, and had incurred prices in so doing.

They’d additionally did not notify Clyde & Co of the establishment of proceedings in Belgium.

There was an absence of a correct clarification to this court docket as to how the scenario had arisen.

Due to the dearth of any good purpose for the breach and the circumstances through which the breach took place, no matter any prejudice to the development of the litigation, the appliance was dismissed.

The applying for a keep

The Grasp handled this within the occasion that she was flawed to dismiss the appliance for an extension.

The start line for a keep on discussion board non conveniens grounds was summarised by the Grasp, per Spiliada Maritime Corp v Cansulex Ltd [1986] UKHL 10:

First, a defendant has the burden of exhibiting a overseas court docket is clearly and distinctly the extra acceptable discussion board for the trial of the declare. If that’s proven, the court docket will ordinarily grant a keep until the claimant can set up that there are circumstances by purpose of which justice requires {that a} keep shouldn’t be granted.

The competing components had been set out. Quite a lot of these relate particularly to street site visitors accident litigation in Belgium. Of wider utility, the next was relied on by every occasion.

For the Defendant:

The motive force of the offending automobile was domiciled in Belgium, and the automobile was registered in Belgium.

The Belgian proceedings included two different events, and one or different of these events, or each, had been accountable for the street and the pedestrian crossing the place the accident occurred. 

No witnesses from England had been required to offer proof within the Belgian proceedings.

The enforcement of a Belgian judgment in Belgium is an easy matter, whereas, publish Brexit, the enforcement of an English judgment will not be simple.

The Claimant signed an announcement made in Dutch very shortly after the accident on the police station. 

The Claimant ought to be capable to journey to Belgium for medical examinations.

For the Claimant:

The Claimant and his household had been resident in England on the time of the accident and stay resident on this jurisdiction. All the Claimant’s lay and professional witnesses are in England, as are each events’ solicitors.

The Claimant didn’t communicate or perceive Dutch, and was too weak to journey to Belgium.

The courts in England could be able to making use of the legislation of Belgium to the causation and quantum points within the declare.

There are restrictions within the Belgian courts as to what number of medical consultants might be appointed. One of many overseas legislation consultants to the case prompt that studies from at most three subsidiary consultants could be permitted, and the consultants wouldn’t be questioned, however solely feedback made on their studies. 

There was no suggestion that interim funds could be out there.

 In Belgium the utmost prices the Claimant would be capable to get well could be mounted prices of a most of €42,000, and any shortfall must be made up from his damages.

Concerning enforcement, a Belgium judgment authorising enforcement might be obtained by a technique of exequatur, which can normally take between 6 months and 1 yr.

Choice on jurisdiction  

The Grasp cited the next well-known rules:

From Brownlie II (FS Cairo (Nile Plaza) LLC v Woman Brownlie [2021] UKSC 45)

The jurisdiction should be the place the dispute has its “closest connection”

That the place ache, struggling, lack of amenity and everlasting incapacity suffered by a claimant resident on this jurisdiction in a street accident that occurred in one other jurisdiction: “The injury is in a really actual sense sustained within the jurisdiction”.

From VTB Capital plc v Nutritek Worldwide Corp and ors [2013] UKSC 5

That the place of fee will usually set up a prima facie foundation for treating that place as the suitable jurisdiction however the significance attaching to the place of fee could also be dwarfed by different countervailing components.

On this case, the place legal responsibility was admitted and no allegation of contributory negligence was made, then the place of fee was of “a lot much less significance”. The place some parts of quantum (damage) had been based mostly on a tariff system in Belgium, then the matter could possibly be comparatively straightforwardly tried within the Excessive Court docket.

The supply of consultants was necessary. While the Belgium court docket’s strategy wouldn’t essentially drawback the Claimant, the Grasp was involved that the vary of permitted professional proof may adversely have an effect on the Claimant in relation to the problem of causation. The Claimant had already instructed an orthopaedic professional who had really useful additional investigation from a neurological professional, and care proof. The Claimant’s ache professional had really useful additional remedy together with ache physiotherapy and psychotherapeutic enter. The Grasp was sufficiently persuaded that, in a Belgian court docket, the Claimant wouldn’t be permitted to have this vary of consultants.

That enforcement could be faster in Belgium was a impartial issue. The place the Defendant was a part of a considerable worldwide insurance coverage group this was additionally much less necessary.

It was additional unjust to the Claimant to restrict him to pursue his declare to the Police Court docket in Belgium (the specialist court docket coping with street site visitors accidents). The Claimant had an unresolved ache situation and journey to Belgium could be disadvantageous. Neither did he perceive Dutch.

As to prices, the Claimant had incurred authorized prices and disbursements in England. The Defendant had not prompt that it could compensate the Claimant for any prices if proceedings had been to be stayed.  The Defendant’s argument that the Claimant ought to have been conscious that it was at all times open to the Defendant to hunt a keep was not profitable. Because the Claimant has argued there was no assure he would be capable to make up any shortfall in authorized prices within the Belgian proceedings.

Sensible takeaways

The Court docket will contemplate aid from sanctions purposes holistically, as they’re required to do within the third a part of the Denton take a look at. Pointing to a comparatively quick interval of non-compliance is not going to help the place, on a studying of the observe path or a consideration of prejudice, the interval of delay is a secondary issue. Additional, the place there’s apparently no purpose for which the Court docket can discover sympathy for the applicant’s place, they face an uphill battle.

The Grasp made a degree of noting the Defendant’s failure to supply to pay prices arising out of the keep. There have been different apparent conduct factors raised all through.

The choice on jurisdiction (albeit not wanted as the appliance for aid had failed) was – as standard – intently tied to the options of the dispute. On this case, the place causation could be the principle battleground, the disparity between the English and Belgian techniques as to the Claimant’s skill to name and depend on a variety of consultants was necessary.