A fascinating decision has been released today in Jamieson v Wurttemburgische Versicherung AG & Anor [2021] EWHC 178 (QB). The Claimant was represented by Harry Steinberg QC, the First Defendant by Sarah Crowther QC, and the Second Defendant by Richard Viney.
The Claimant suffered a serious brain injury after being hit by a taxi as he walked back to his hotel from the Oktoberfest in Munich. His representatives then entered into pre-action correspondence with the taxi’s insurer. They specifically asked the insurer to refrain from issuing proceedings for a negative declaration of liability in Germany.
Unfortunately for the Claimant, the insurer’s response was to do exactly that. When this emerged some time later after negotiations between the parties had failed, the Claimant issued his own proceedings in England against the insurer (the First Defendant) and against the Claimant’s employer (the Second Defendant).
Those proceedings were stayed by consent in the hope that the German courts would come to a quick decision on seisin and jurisdiction. However, when the case became embroiled in a “procedural quagmire”, the Claimant attempted to have the stay lifted. This was the subject of the hearing before Master Davison.
Master Davison was not enthused by the insurer’s actions:
For the first defendant to have issued in Germany (having been asked to confirm that they would not do that very thing and having studiously avoided answering a straight question about it) was somewhat lacking in transparency. It was also, I infer, intended to advantage the first defendant and disadvantage the claimant by removing from him the opportunity to litigate his claim in England, where he lives. That was (as the first defendant must be taken to have known) contrary to the structure and intention of the Recast Regulation which conferred on the claimant the option to pursue his claim either here or in Germany.
The effect of depriving the Claimant of the chance of litigating in his home forum was stark:
The issue of forum (i.e. where his claim is to be litigated) is of very real practical significance to the claimant. To characterise him as the “weaker party” in the dispute would be no more than the literal truth. He would be greatly disadvantaged by having to litigate in Germany. He suffered a range of serious physical injuries including a neurological injury which has impaired his cognitive and psychiatric functioning. For him to have to continue to instruct German lawyers and to come to Germany for a trial would be hugely more difficult for him than to litigate in England. There is also the problem of funding. He has exhausted or almost exhausted his legal expenses insurance. In this country, that shortfall is simply and easily addressed by the availability of conditional fee agreements. But there are no equivalent arrangements available in Germany. Given the claimant’s situation, which invites sympathy, the reasoning of the Higher Regional Court is powerful and attractive.
Later in the judgment, he would go on to say this:
Looked at from the point of view of the first defendant, they would not be significantly disadvantaged by having to litigate in England. They could apply for liability to be tried as a preliminary issue, in which case that issue could be resolved here expeditiously. Wherever it is tried, it will be German law that applies. The stance presently taken by the first defendant seems unreasonable and unfair and has been achieved by conduct which I have already described as lacking in transparency.
The Claimant’s main argument at the hearing was that various decisions and orders issued by the courts of Germany amounted to a finding that they had not been validly seised.
However, Master Davison was not so sure: “The effect of the orders of the Regional Court and the Higher Regional Court, whether approached as a matter of language or inference, is, in my view, ambiguous and unclear.”
That was not the end of the line, because a mechanism for this very situation had been introduced into the Brussels Regulation when it was Recast:
In those circumstances, Article 29(2) provides a mechanism for ascertaining which court was first seised. This mechanism is for the High Court to make a request to the German court that it inform this court when it was seised. I am willing to do that if the parties, or any of them, so request. Indeed, I would be minded to do that of my own motion.
It would not have been appropriate for him to resolve the issue himself (as the Claimant had invited him to do):
Although there are cases where an English court has done so, those cases were on very different facts and were not Article 29 cases. If I were to decide the question of seisin I would be bypassing the statutory mechanism in Article 29(2), which was introduced into the Recast Regulation in order to provide clarity and uniformity of approach. It seems to me that I am mandated to follow that mechanism. But even if I had a completely free hand I would hesitate before embarking on the resolution of an issue which is currently before a German court and which that court is better placed to decide. For me to rule upon it would, or would risk seeming to, be an interference and an infringement of the principle of comity.
Of particular interest are Master Davison’s comments on the Claimant’s “fallback” position. This was, in effect, that the negative declaratory action was an abuse of EU law, which the English court could resolve by allowing the English proceedings to continue.
Master Davison left open the possibility that the insurer’s actions were abusive:
I accept that the references to “abusive conduct” and (at the end of the judgment) to “the exception of the priority principle of Article 29 of the Recast Brussels Regulation on the grounds of abuse of rights” may amount to a finding by the Higher Regional Court that the first defendant was guilty of an abuse of EU law (defined by Lord Briggs in Lungowe v Vedanta Resources Plc [2019] UKSC 20 as the “collusive invocation of one EU principle so as improperly to subvert another”).
But the “insuperable” problem for the Claimant was that this was again a matter to be resolved by the German courts:
But, as with the issue of seisin, this is a matter which the German courts are considering. It would be contrary to the principle of comity, to which I have already referred, for the English High Court to assume jurisdiction on the basis of an abuse of EU law in a German action when the existence and consequences of that abuse are in the process of being worked out by the German courts.
After the draft judgment had been released, the Claimant requested that Master Davison make a request under art. 29(2) to the Munich Regional Court to inform him, without delay, of the date when it was seised or deemed seised of the claim. Master Davison agreed to do this, in what appears to be the first such request of this type (at least by the courts of England and Wales).
The Claimant’s application to lift the stay was refused, but I am told that he has been given permission to renew the application to lift the stay on receipt by the court of the response to the request under art. 29(2). The costs of the application were also reserved. This will be one to watch.
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