Brexit mini-series: (5) the big picture

In this comprehensive analytical article, John-Paul Swoboda and Spencer Turner set out their view of the current position and the implications of Brexit for the future of cross-border civil litigation in the UK.

In Bulmer Ltd v Bollinger[1] Lord Denning spoke of the European Communities Act 1972 as ‘like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute’.

In the four decades that followed, the Brussels I (Recast) Regulation, the Rome I and Rome II Regulations, the Service Regulation, and the Lugano Convention revolutionised cross-border litigation and shaped the UK’s civil justice system. As was said by the authors of Dicey, Morris & Collins[2] in the most recent edition of ‘Conflict of Laws’ ‘[b]y far the most significant source of the English conflict of laws … is European Union law’.

On 24 December 2020 it became clear that the tide had turned. The conclusion of the Trade and Cooperation Agreement[3] between the UK and the EU did not include any provisions on judicial cooperation in civil matters (as we discussed here). On 31 December 2020, the UK’s participation in large parts of the EU legal order ended and a new period for private international law began.

In this post we will offer some thoughts and consider the implications from our perspective as travel and personal injury practitioners.

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High Court sends Brussels Regulation request in Oktoberfest torpedo case

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.

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Applicable law in asbestos disease claims

John-Paul Swoboda and Spencer Turner instructed by Dushal Mehta of Fieldfisher recently represented a Claimant in Charmaine Haggerty-Garton (as Widow and Executrix of the Estate of Mr David Haggerty (Deceased)) v Imperial Chemical Industries Limited. This was a claim which involved the common law double actionability rule and the circumstances in which the “flexible exception” to the rule can apply.   

The claim was brought by the widow of Mr Haggerty in England. Mr Haggerty died from mesothelioma following exposure to asbestos in Scotland in the 1970s. The Claimant’s position was that Scots law applied to the claim. If Scots law were found to apply to the claim, the Claimant could bring a claim for ‘loss of society’ under section 4 of the Damages (Scotland) Act 2011, which had the potential to substantially increase the value of her claim. Relatives unable to claim in English law would also be able to join the action if Scots law applied.

This blog post considers the principles relevant to the determination of the applicable law in this claim.

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Nigeria oil spill group action founders on limitation

The Court of Appeal yesterday handed down a fascinating judgment in Jalla & Ors v Shell International Trading And Shipping Company & Anor [2021] EWCA Civ 63, which deals with the boundaries of the modern law of nuisance and with the concept of “continuing causes of action” for the purposes of limitation.

We previously blogged on various issues decided by the trial judge (including whether the claim could be brought as a “representative action”) here and here.

This was a claim relating to an oil spill in 2011 on behalf of a very large number of individuals (in excess of 27,500) who lived by or in the hinterland of a stretch of the coast of Nigeria that spanned Bayelsa State and Delta State. In addition, the claim was brought on behalf of 457 villages and communities that were alleged to have been affected by the oil spill.

In general terms, the Claimants alleged that responsibility for the 2011 spill lay with companies forming part of the Shell group. The Defendants denied liability.

The issue on the appeal was summed up by Coulson LJ:

The issue that arises on this appeal is whether or not the appellants have a cause of action for a continuing nuisance, which would defeat the respondents’ limitation defence, or whether, as the judge found, they have a single claim in nuisance which, for many if not most of the appellants, is likely to be statute-barred.

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Vedanta group litigation claims settled

Last April, we blogged about the terms of a GLO imposed on the Vedanta litigation after the almighty jurisdiction battle heard by the Supreme Court in early 2019.

2,500 of the claims (those brought by Leigh Day) have now been settled. The terms of settlement have not been made public.

Other claims within the litigation are brought by a separate firm (Hausfeld & Co LLP); we are unaware of the status of those claims, which presumably will continue.

Here are links to a statement by Leigh Day and an article by the BBC concerning the settlement.

Kate Boakes of 12 KBW was instructed by Leigh Day on behalf of the claimants in the litigation.