No lis pendens in relation to French injury “aggravation” claim

We start the week with a short blog post drawing attention to an interesting recent decision of Soole J in Tate v Allianz Iard SA [2020] EWHC 3227 (QB).

It deals with the position from a “lis pendens” perspective where a claimant, having been compensated for injuries in the courts of France, subsequently brings a claim for “aggravation” of those injuries in England and Wales.

A claim for “aggravation” in this context is similar to – but, crucially, not the same as – a follow-up claim for further damages after an award of provisional damages in English law.

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High Court on package travel litigation: “local standards” evidence not always necessary

In this blog post, Spencer Turner considers the case of TUI UK Limited v Lynn Morgan [2020] EWHC 9244 (Ch). The decision has significant implications for claims relating to package holidays.

In summary, Marcus Smith J considered that a Claimant was entitled to rely on a standard not applied in the locality as “a proxy for the local standards that were lacking in this case”. In particular:

where the local standards are unclear, the court is not going to require the claimant to incur and waste time and expense in seeking to prove that which is vague, nebulous or non-existent. In such a case, the claimant is perfectly entitled to have resort to other material in order to establish that the obligation to exercise reasonable skill and care has been breached.

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High Court applies Brownlie approach to pleading foreign law

In this blog post, Max Archer considers Qatar Airways Group QCSC v Middle East News FZ LLC [2020] EWHC 2975 (QB).

This was a claim for malicious falsehood (and other torts including conspiracy) brought by Qatar Airways against various media companies registered in the UAE, Dubai, and the United Kingdom. Saini J found that there was a good arguable case against the Defendants, serious issues to be tried, and that the case fell within three of the CPR’s jurisdictional gateways.

Of particular significance for readers of this blog is that this is apparently the first case engaging with the Court of Appeal’s ruling on pleading and proving foreign law in FS Cairo (Nile Plaza) LLC v Brownlie [2020] EWCA Civ 996. We considered the difficulties posed by the three apparently inconsistent judgments in that case in a separate post here.

In summary, the judge in Qatar Airways approved and applied Underhill LJ’s approach to the issue.

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Fundão Dam Disaster Litigation struck out

In Municipio de Mariana v BHP Group Plc and BHP Group Ltd [2020] EWHC 2930 (TCC), the High Court struck out a huge group action relating to the collapse of the Fundão Dam in Brazil as an abuse of the court’s process. The court also held that, had the action not be struck out, it would have been stayed on jurisdictional grounds.

The claim, which involved over 200,000 claimants, is thought to be one of the biggest ever brought in England and Wales. In this blog post, Spencer Turner considers the decision.

The judgment provides a comprehensive summary of the relevant case law involving abuse of process, Article 34 of the Recast Brussels Regulation and forum non conveniens. Turner J’s conclusions will no doubt be of interest to practitioners and parties involved in group litigation and cross-border disputes.

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Advocate General delivers Opinion in X v Kuoni

In this blog post, Christopher Fleming considers the Opinion recently handed down by Advocate General Szpunar (“the AG”) in X v Kuoni Travel Ltd (Case C-578/19) in response to the questions referred to the CJEU by the Supreme Court on 24 July 2019.

In summary, the AG opined that:

  • The defence provided for in the second part of the third alinea to Article 5(2) of Directive 90/314 cannot apply where the failure to perform or improper performance of the contract is the result of the acts of an employee of a supplier of services performing that contract.
  • An employee of a supplier of services cannot be regarded per se as a supplier of services for the purposes of the third alinea to Article 5(2).
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High Court: Interest on tort damages is a matter of procedure under Rome II

In Troke & Anor v Amgen Seguros Generales Compania De Seguros Y Reaseguros SAU [2020] EWHC 2976 (QB), Griffiths J was asked to decide whether interest on damages arising out of a road traffic accident in Spain was a matter of procedure (and therefore governed by English law) or a matter of substance (and therefore governed by Spanish law).

The Claimants were keen to benefit from the significantly higher rates of interest recoverable under Spanish law. The trial judge, who considered that the court’s discretion to award interest was a procedural matter governed by English law, limited them to English rates of interest (0.5% on special damages and 2% on general damages).

In summary, Griffiths J decided that:

  • The English court’s power to award interest is a matter of procedure for the purposes of Rome II. The discretion is therefore one of the laws of the forum which remains open to the court apparently notwithstanding the content of the applicable substantive law.
  • Spanish law also provided an entitlement to interest. However, since this right was discretionary and not absolute, it was properly characterised as a matter of procedure. This meant that it was not one of the substantive matters covered by art. 15 of Rome II.
  • The judge was entitled to assess interest awarded under the procedural English power at either English rates of interest or Spanish rates of interest. His decision to use English rates would not be disturbed.

There are four practical implications of this decision:

  • The English court’s entitlement to award interest may apparently be relied on notwithstanding the approach of a foreign applicable law. There is apparently no need to plead or prove a foreign law entitlement to interest since a claimant can rely on the standard English interest provisions.
  • If the foreign law provides an absolute (as opposed to a discretionary) entitlement to interest, then the judgment suggests that this could possibly also be relied upon as part of the lex causae applicable under art. 15 of Rome II. The foreign law right to interest will, in these circumstances, need to be pleaded.
  • Where the court is awarding interest using the English procedural power, it retains a discretion as to the rate used. The parties should be prepared to explain why one rate is more appropriate than the other on the facts of the case.
  • The court’s comments that “penalty interest” will generally constitute a “procedural sanction” have implications for the characterisation of interest on damages or costs payable when one of the parties beats a Part 36 offer.
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Foreign law expert evidence and the assessment of damages for personal injury

A High Court decision earlier this year confirmed the correct approach to be taken with the nature and scope of expert evidence in a claim for personal injury damages to which a foreign law applies. This article is by Chris Deacon and Sophie Burroughs of Stewarts, who instructed John-Paul Swoboda on behalf of the claimants.

In Mihailovskis v Amlin Insurance SE [2020 EWHC extempore], Master Davison allowed an application by the claimants to exclude the defendant’s Belgian law expert evidence. He dismissed the defendant’s cross-application for permission to rely on evidence from a Belgian medico-legal expert.

The decision follows the guidance originally set out by the Court of Appeal in Wall v Mutuelle de Poitiers [2014] EWCA Civ 138. In that case, the Court of Appeal made it clear that in claims for personal injury damages before the English court to which a foreign law applies, the rules of English procedure must be followed. The parties should only be given permission to rely on expert evidence as to the foreign law. It is not appropriate for the parties to have permission to rely on a report from a foreign medico-legal examiner or forensic expert, even though that may form part of the procedure for assessing personal injury damages in the courts of the country whose law the English court is required to apply pursuant to Rome II (Regulation EC 864/2007).

This detailed article considers the parties’ arguments and the court’s decision in Mihailovskis on the question of foreign law and foreign medico-legal expert evidence before going on to provide practical guidance on how to approach this issue in future cases.

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EU Commission releases updated notice on post-Brexit transition period private international law rules

The EU Commission has released an updated notice concerning the impact of the end of the Brexit transition period on private international law. The notice is available here.

We summarised the position under the Withdrawal Agreement in a previous blog post. In summary:

  • The EU rules on international jurisdiction will continue to apply to proceedings “instituted” in the UK before the end of the transition period.
  • The EU rules on international jurisdiction will continue to apply to proceedings which, although not instituted in the UK before the end of the transition period, “are related to such proceedings” for lis pendens purposes.
  • For proceedings instituted in EU Member States after the end of the transition period, the courts in the EU Member States will determine their international jurisdiction pursuant to any relevant EU law instruments, international conventions, or national laws.
  • There is no mention of the possible applicability of the Lugano Convention. Although it is the UK government’s stated intention to accede to the Convention, we posted about potential problems with this strategy here.
  • Rome I will continue to apply to the UK in respect of contracts concluded before the end of the transition period.
  • Rome II will continue to apply to the UK in respect of events giving rise to damage which occur before the end of the transition period.
  • Rome I and Rome II will continue to apply in EU Member States after the transition period as before.
  • Brussels I (Recast) is to apply to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period.
  • EU rules on enforcement will not apply to judicial decisions where the original proceedings have been instituted after the end of the transition period.
  • The UK has expressed its intention to accede in its own right to the 2005 Hague Convention on Choice of Court Agreements after the end of the transition period. The Convention will apply between the EU and the UK to exclusive choice of court agreements concluded after the Convention enters into force in the UK as party in its own right to the Convention.