In Pandya v Intersalonika General Insurance Co SA  EWHC 273 (QB), Tipples J considered as a preliminary issue whether the claimant’s case should be struck out on the basis that it was time-barred. The case involves an interesting analysis of whether service will be treated as a matter of evidence and procedure under art. 1(3) of Rome II (and therefore governed by the lex fori) or whether it is a matter relevant to the question of limitation under art. 15(h) (and therefore governed by the lex causae).
A helpful summary of the decision was written by the defendant’s counsel (which is available here). This blog considers the full transcript of the judgment which has now been approved by the judge: it is available on Lawtel and Westlaw. Continue reading Limitation and Rome II: is service a matter of procedure?
Regular readers of this blog will recall our article on the Supreme Court’s judgment in Four Seasons Holdings Incorporated v Brownlie  UKSC 80 (here).
In an order drawn up in July 2018, the Supreme Court directed that all consequential matters should be remitted to the High Court and that the Claimant had permission to issue certain applications. On 17 August 2018, the claimant duly issued three applications:
- For the correction or substitution of FS Cairo (Nile Plaza) LLC (“LLC”, an Egyptian company) in place of the existing Defendant, Four Seasons Holdings Incorporated (“Holdings”, a Canadian company).
- For permission to amend the Claim Form and Particulars of Claim.
- For permission to serve the Claim Form and Amended Particulars of Claim out of the jurisdiction on LLC in Egypt.
All three applications were recently granted by Nicol J in Brownlie v Four Seasons Holdings Inc  EWHC 2533 (QB). The lengthy decision contains some essential points for cross-border personal injuries practitioners. It deals with:
- Limitation and the doctrine of “relation back” in claims under Rome I and Rome II.
- The “presumption of equivalence” of foreign law with English law where no foreign law has been pleaded.
- Application of the majority of the Supreme Court’s (obiter) approach to “damage” in the context of CPR 6BPD 3.1(9)(a) (the tort gateway).
- Guidance on the approach to determining the forum conveniens post-Vedanta Resources plc v Lungowe  UKSC 20
Nina Ross and James Beeton consider the decision in this blog. Continue reading Brownlie back in the High Court: Claimant allowed to serve on substitute defendant
This blog post is by Spencer Turner of 12 King’s Bench Walk.
With ‘exit day’ looming on 31st October 2019 and the very real possibility of a no-deal Brexit, it seems to a be a good time to set out a refresher on jurisdiction and applicable law in the event of a no-deal Brexit. Continue reading Jurisdiction and Applicable Law Post-Brexit: A Refresher
It will not have escaped our readers’ notice that last week the UK and the EU released the draft text of a withdrawal agreement covering the UK’s exit from the EU. In a nutshell, the key provisions governing applicable law and jurisdiction are as follow.
Article 66 covers applicable law. It provides:
- The Rome I Regulation (Regulation (EC) No. 593/2008) will apply in respect of contracts concluded before the end of the transition period.
- The Rome II Regulation (Regulation (EC) No. 864/2007) will apply in respect of events giving rise to damage, where the events occur before the end of the transition period.
Article 67 covers jurisdiction. It provides (inter alia):
- The Recast Judgments Regulation (Regulation (EU) No. 1215/2012) will apply in respect of legal proceedings “instituted” (presumably this means “issued”) before the end of the transition period.
- The Recast Judgments Regulation will 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.
- These provisions also apply to the special agreement between the EC and Denmark (by article 69(3)).
This blog post is by James Beeton of 12 King’s Bench Walk.
In May we considered the decision of the Outer House of Scotland’s Court of Session in Docherty v Secretary of State for Business, Innovation and Skills  CSOH 25 in this blog post. The question for the court to consider may be summarised as follows:
‘Where an individual, while working in Scotland, inhales asbestos fibres that cause him injury after he has become resident in England, which law is applicable to determine the admissibility of claims for damages made by his executors and relatives after his death?’
In the Outer House, Lord Tyre had held that the case fell outside the temporal scope of Rome II and the Private International Law (Miscellaneous Provisions) Act 1995. The result was that the applicable law depended on the locus delicti (i.e. the place of the wrong) pursuant to the common law. Lord Tyre considered that the locus delicti was the place where the injury developed and not where the negligent act or omission occurred. This meant that English law applied to the claims for damages (with significant consequences for some of the claimants, as discussed in the previous blog).
That decision has now been overturned by the Inner House on appeal ( CSIH 57). The locus delicti is the place of exposure to asbestos – not the place where the eventual injury develops. Continue reading Asbestos Exposure and Choice of Law – Docherty Revisited
In this blog, James Beeton of 12 King’s Bench Walk considers the decision in Committeri v Club Mediterranée SA  EWCA Civ 1889, which was handed down yesterday. The case involved an appeal against the decision of Dingemans J ( EWHC 1510 (QB) – considered in an earlier blog post here).
It provides guidance on (i) the characterisation of claims as contractual or non-contractual for the purposes of Rome I and Rome II and (ii) the circumstances in which it is acceptable to challenge the agreed evidence of foreign law experts. Continue reading Committeri v Club Mediterranée SA and Anor  EWCA Civ 1889 – Package Travel, Rome I and II
This blog post is by James Beeton of 12 King’s Bench Walk.
In Docherty v Secretary of State for Business, Innovation and Skills  CSOH 25, the Outer House of Scotland’s Court of Session considered the following question:
Where a man, while working in Scotland, inhales asbestos fibres that cause him injury after he has become resident in England, which law is applicable to determine the admissibility of claims for damages made by his executors and relatives after his death? Continue reading Asbestos Exposure and Choice of Law – The View from Scotland