Service Out of the Jurisdiction: Szrek & Ors v Div-Ing DOO & Ors [2024] EWHC 219 (KB)

In this post Chris Fleming looks at the recent High Court decision in Szrek & Ors v Div-Ing DOO & Ors [2024] EWHC 219 (KB), in which the Court considered an application for permission to serve a claim form and associated documents on the defendants out of the jurisdiction in a personal injury claim arising from a diving accident in Croatia.

Background

In August 2020, Mr Szrek and his family[1] went on holiday to Dubrovnik. Mr Szrek was a qualified diver and booked a diving excursion with the first defendant. The first defendant was Croatian company offering diving and water-based excursions. It ran a dive centre known as ‘Abyss’ out of the basement of the President Hotel in Dubrovnik.[2] 

On the dive, Mr Szrek lost consciousness and ascended to the surface quickly and without proper decompression taking place. He suffered a serious Type II decompression injury to his spine. These injuries were life changing. He alleged that he was provided with inadequate and unsafe equipment, and that the dive was conducted in a negligent manner at far too great a depth.

Proceedings were issued and served on the defendants in April 2023. The first and third defendants did not respond to proceedings.

The Legal Framework

We have previously written about the legal framework for serving proceedings out the jurisdiction and establishing England and Wales as the correct forum here, here, and here. In summary, the rules are as follows:

Under CPR 6.36:

In any proceedings to which rule 6.32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 of Practice Direction 6B apply.

Pursuant to CPR 6.37:

(1) An application for permission under rule 6.36 must set out –

(a) which ground in paragraph 3.1 of Practice Direction 6B is relied on;

(b) that the claimant believes that the claim has a reasonable prospect of success; and

(c) the defendant’s address or, if not known, in what place the defendant is, or is likely, to be found.

(2) Where the application is made in respect of a claim referred to in paragraph 3.1(3) of Practice Direction 6B, the application must also state the grounds on which the claimant believes that there is between the claimant and the defendant a real issue which it is reasonable for the court to try.

(3) The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.

PD 6B 3.1(9) includes the tort gateway, which provides:

(9) A claim is made in tort where –

(a) damage was sustained, or will be sustained, within the jurisdiction;

(b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction; or

(c) the claim is governed by the law of England and Wales.

The first and third defendants did not respond or engage with proceedings at all. The second defendant did not attend the application hearing but did provide written submissions which were considered by the Court.  They disputed jurisdiction on the grounds that:

• The damage occurred in Croatia.
• None of the claimants were UK citizens.
• The second, third and fourth claimants all reside outside the UK (Mr Szrek is a UK resident).

Counsel for Mr Szrek argued that England and Wales was the appropriate forum on the grounds that:

• Mr Szrek resides in the jurisdiction.
• Mr Szrek has and will continue to suffer the consequences of the accident within the jurisdiction.
• International diving standards will apply to the assessment of liability.
• Quantum evidence will be required from a number of experts in the jurisdiction.
• Future losses will be incurred in the jurisdiction and so are more appropriately addressed by experts within the jurisdiction.
• Medical experts being instructed in the jurisdiction will avoid Mr Szrek having to travel to Croatia for assessment and will avoid such experts having to attend trial in Croatia.
• The logistical difficulties for Mr Szrek in travelling to Croatia for legal proceedings in light of his injuries.
• The inconvenience to the defendants in responding to proceedings in this jurisdiction will be far less than for Mr Szrek in Croatia.

The Decision

HHJ Morgan KC found as follows:

• Mr Szrek continued to suffer damages within the jurisdiction. Applying the approach set out by the Supreme Court in Brownlie,[3] the claim passed through gateway 9(a).
• The claim had a reasonable prospect of success.
• England and Wales was the proper forum for hearing the claim:

1. There was more than a casual or adventitious link between the claim and the jurisdiction.
2. There were a number of practical and procedural reasons why the claim would be more properly advanced in England.
3. Mr Szrek’s losses were, to a significant extent, experienced in England.
4. The claim was likely to be assessed by reference to international standards of diving.

Comment

This decision can be added to the growing list of authorities post-Brexit in which the courts have considered the question of permission to serve out of the jurisdiction and forum conveniens. So far, there has not been anything approaching predictability in such cases (and why would there be), with permission being granted in some cases[4] and refused in others[5] and with each case being determined on its specific facts.

It is an interesting thought exercise to consider whether there were any other factors in this case relevant to the issue of services out of the jurisdiction and the impact that they could have had on the Court’s decision. Some factors which do not appear in this judgment which this author considers potentially relevant to the question of forum are as follows:  

1. Liability remained in dispute, and although international standards of diving may be relevant and apply in both jurisdictions, the applicable law to the claim in tort and contract is Croatian law. This means that report(s) from Croatian lawyers advising on how a Croatian court would approach the question of liability will be required if the claim is to be heard in England.
2. Witnesses of fact for the defendant will presumably need to fly to England to give their evidence for the trial. Their evidence will be given (presumably) in Croatian and an interpreter will therefore be required.
3. Likewise, a significant amount of the documentary evidence from the defendants will have to be translated into English[6] for the court. We have written before on this blog about the importance of language when determining the correct forum.   
4. Quantum will also be assessed under Croatian law, requiring expert evidence from Croatian lawyer(s) to advise on the proper method for quantification and assessment of damages. A Croatian medico-legal expert may also be required if there exists a specific method of assessment of injuries under Croatian law which an English expert would be unable to advise on (as is the case under French law, for example).

One final point to consider is that although the claimants have succeeded in establishing that England is the correct forum, there remains a potentially significant hurdle in enforcing the judgment abroad. Should the claimants succeed at trial, they will need to enforce the judgment for any award of damages and for costs in Croatia against the defendants. In claims such as this, it is always advisable for the claimant to obtain advice from an appropriate foreign law expert on the likely enforceability of any award in the jurisdiction in which it will have to be enforced.

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[1] The court was told that Mr Szrek’s family were included as Claimants to proceedings as, under Croatian law, Mr Szrek would not be entitled to claim damages (for care and assistance, say) on their behalf.

[2] The Second Defendant is the public liability insurer of the First Defendant, and the Third Defendant was a trading name/entity of the First Defendant.

[3][3] See our article on the decision Brownlie II and the tort gateway here.

[4] Klifa v Slater & Anor [2022] EWHC 427 (QB), Charlton v Deffert [2022] EWHC 2378 (KB)

[5] Moore v MACIF [2022] 10 WLUK 621, a decision which makes for a particularly interesting contrast to this one.

[6] Note the comments of Lord Mance , ‘it is far better to be working in the native language than from translations’: VTB Commodities Trading DAC v JSC Antipinsky Refinery [2021] EWHC 1758 (Comm) at [233]