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.

The Claimant was a British national domiciled in the UK. The Defendant was a French insurance company. In 1991, the Claimant suffered injuries after being hit by a bus insured by the Defendant. He brought a claim for his injuries in France and recovered damages.

In the event of deterioration in a claimant’s condition, French law allows a further claim, known as an ‘action en cas d’aggravation’, to be made for additional compensation.

In 2019, the Claimant brought such an action in the courts of England and Wales, alleging that his condition had deteriorated.

The Defendant argued that his claim was barred by the lis pendens provisions of Brussels I (Recast) on the basis that proceedings were still pending in France.

Soole J rejected this argument. The existence of a separate claim for aggravation was not equivalent to an award of provisional damages in English law, where the court makes express provision for a claimant to return within the same proceedings to seek further damages.

True it is that the Douai judgment recorded the Claimant’s reservation of his right to make a claim ‘en cas d’aggravation’ in the event that his condition should worsen. However the right under French law to commence an action ‘en cas d’aggravation’ is free-standing and does not depend upon any prior order or permission from the court nor require any reservation of right by the claimant. Whilst that is only a matter of national law, it nonetheless provides powerful support for the conclusion that the proceedings before the French courts have, as a matter of European law, come to an end.

Putting the matter another way, the evidence provides no basis to conclude that there are extant proceedings in any French court. The Boulogne judgment of 1999 contains nothing to suggest that the action somehow remains live. The Douai judgment of 2004 refers to the Claimant’s reservation of rights to make a further claim; but there is no basis to conclude that such further claim would be entertained by that appellate court.

Thus, the Defendant’s application does not identify any French court wherein the Claimant can pursue extant proceedings. On the contrary, the effect of refusal of jurisdiction or stay of this action would be to require the Claimant to institute an ‘action en cas d’aggravation’ in a (unidentified) French court. In my judgment that is a critical distinction; for if the only recourse is to institute fresh proceedings, it must follow that there are no pending proceedings.

Nor did it matter that, under English law, a different result on liability or contributory negligence might be reached:

As to liability, if the action were dismissed in England because of failure to prove negligence (or a reduction applied for contributory negligence), that result would neither be irreconcilable nor inconsistent with the no-fault liability established in the French courts. On the contrary, the judgments would be reconciled through the contrasting ingredients of the causes of action under the respective national laws; and consistent for the same reason.

The assessment of damages for the aggravation did not fall foul of the principle of res judicata, since the two claims were separate:

As to the assessment of damages, the English court would not be adjudicating on the claim which has been determined by the Douai court. That is res judicata. Its focus would be solely on the discrete ‘aggravation’ claim, which has not been presented nor therefore determined in France. Accordingly, the obligation to assess the damages in accordance with English law, and whether or not a difficult task, cannot give rise to a risk of incompatibility or inconsistency with the Douai judgment.

In conclusion, there was no lis pendens:

In my judgment, neither the Boulogne nor the Douai judgments left any issues to be resolved. Neither judgment was akin to an award of provisional damages, nor contained anything akin to a liberty to apply. The judgments were final. In any event there is no risk of irreconcilable or inconsistent judgments. Applying the necessary autonomous European law interpretation of the concept, there is no pending action in the French courts.

In any event, the original claim and the aggravation claim had different “objets”. The “objet” of the aggravation claim was to recover damages for the aggravation of the injuries:

Ms Wyles concedes that the French and English proceedings have the same cause; but contends that they had different objects. In contrast to the French proceedings, the object of this present action is to recover damages for the aggravation of the injuries.

In my judgment Mr Doherty’s rival argument, that both sets of proceedings have the same object of achieving full compensation for the injuries, identifies the ‘object’ too broadly. It is also at odds with the underlying rationale of Articles 29 and 30, i.e. avoiding the risk of irreconcilable or inconsistent judgments. As between the original claim in the French courts and a subsequent claim of ‘aggravation’ (and whether the latter is determined in France or England), there is no such risk.

Accordingly I conclude that it is right to identify the object of the ‘aggravation’ claim on the narrower basis advanced by Ms Wyles; and in consequence to hold that the two proceedings do not involve the same cause of action for the purpose of Article 29.

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