Factual and Procedural Background
The Plaintiff issued a claim form on 6 June 2022 seeking damages for injuries sustained in a road traffic accident in Portugal on 1 September 2021. The Plaintiff was struck by a vehicle insured by the Defendant while crossing at a marked pedestrian crossing. The Defendant admitted liability in March 2022. The Plaintiff applied without notice on 16 June 2022 for permission to serve the claim form outside the jurisdiction on the Defendant at its registered address in Lisbon.
Master McCloud granted permission to serve the claim form out of jurisdiction and extended the time for service on 31 August 2022 and 9 December 2022. Service was effected on 5 May 2023. The Defendant subsequently applied on 7 June 2023 to set aside the extension orders and to declare that the court lacked jurisdiction to hear the claim.
The Defendant relied on two witness statements from its solicitor dated 7 June 2023 and 2 July 2024. The Plaintiff relied on witness statements from his solicitor dated 18 June 2022, 8 July 2024, and sought to admit a further statement dated 26 September 2023, which the Defendant opposed. The Plaintiff also provided a witness statement dated 6 February 2024.
During the hearing of the Defendant’s application, the Plaintiff’s counsel indicated an intention to apply for an order to remedy any procedural defects in the extension applications under CPR 3.10, which was made during the hearing. This judgment addresses the Defendant’s application dated 7 June 2023 and the Plaintiff’s oral application.
The Plaintiff is a British national, aged 58 at the time of the accident, which occurred in Portugal. The Plaintiff sustained severe injuries including amputation of the left leg, multiple fractures, internal injuries, and psychological harm. He was treated in Portuguese hospitals and is now habitually resident in England. The Plaintiff has significant care needs and ongoing medical and rehabilitation requirements.
The Defendant is the insurer of the vehicle involved in the accident. The Plaintiff contends the orders extending time for service were properly made and jurisdictional requirements are met, while the Defendant disputes these points.
Legal Issues Presented
- Whether time should be extended for service of the claim form ("the extension of time issue").
- Whether the courts of England and Wales have jurisdiction to hear and determine the claim ("the jurisdiction issue").
These overarching issues include sub-issues such as the validity of the extension orders, admissibility of further evidence, whether the gateway and forum conveniens tests for jurisdiction are satisfied, and whether procedural defects can be remedied under CPR 3.10.
Arguments of the Parties
Defendant's Arguments
- The extension orders should be set aside as no valid applications for extension of time were made due to procedural defects.
- The court lacks jurisdiction to hear the claim.
- The procedural requirements for extension applications are mandatory and could not be waived.
- The Plaintiff’s solicitor’s reliance on flawed foreign law advice undermines the justification for the second extension.
- The Plaintiff’s claim is not a claim in tort for jurisdictional purposes.
- There may be difficulties enforcing an English judgment in Portugal.
Plaintiff's Arguments
- The extension orders were properly made despite procedural irregularities, which the Master waived using her case management powers.
- The Plaintiff did make valid applications for extension of time, supported substantively by solicitor’s emails.
- The CPR 3.10 power can be used to cure procedural defects in the applications.
- The Plaintiff satisfies the jurisdictional gateway test as the claim is "in substance" tortious, being a direct claim against the insurer based on the underlying tort of the driver.
- England is the appropriate forum (forum conveniens) for trial given the Plaintiff’s residence, convenience, availability of witnesses, and other factors.
- The differences between English and Portuguese law are not determinative, and the key issues are factual rather than legal.
- The Plaintiff will suffer prejudice if forced to litigate in Portugal, including difficulties in securing prosthetic assistance during the claim.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Hoddinott v Persimmon Homes (Wessex) [2007] EWCA Civ 1203 |
Scrutiny of extension of time applications for service of claim form; purposes of service. |
Guided the careful approach to extension applications and relevance of limitation period. |
| Mackay v Ashwood Enterprises Ltd [2013] EWCA Civ 959 |
Costs orders on without notice applications are rarely appropriate. |
Supported setting aside the costs order made without notice in this case. |
| Vinos v Marks & Spencer Plc [2001] 3 All ER 784 |
Limits on court’s power to extend time for service after expiry under CPR 7.6(3); distinction from CPR 7.6(2). |
Distinguished from current case as CPR 7.6(2) applies here; court held Master could waive procedural requirements. |
| Steele v Mooney and others [2005] EWCA Civ 96 |
Use of CPR 3.10 to cure procedural defects in extension applications. |
Supported view that CPR 3.10 can cure procedural errors in timely extension applications. |
| Ideal Shopping Direct Ltd v Mastercard Inc and others [2022] EWCA Civ 14 |
Analysis of error of procedure and court’s power to remedy under CPR 3.10. |
Confirmed importance of analyzing substance of procedural errors; supported waiver of procedural requirements. |
| Al-Zahra v DDM [2019] EWCA Civ 1103 |
Admissibility of further evidence on rehearing of without notice orders. |
Guided admission of further evidence (Beasley 2) on rehearing. |
| Satfinance Investment Limited v Athena Art Finance Corp [2020] EWHC 3527 (Ch) |
Principles on rehearing without notice orders and admissibility of evidence. |
Supported admission of evidence shedding light on original application circumstances. |
| ST v BAI (t/a Brittany Ferries) [2022] EWCA Civ 1037 |
Principles for granting extension of time for service under CPR 7.6(2). |
Applied to assess merits of extension of time orders. |
| Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7 |
Jurisdictional gateway and forum conveniens tests for service out of jurisdiction. |
Used to frame jurisdiction and forum conveniens analysis. |
| Tulip Trading v Bitcoin Association for BSV [2022] EWHC 667 (Ch) |
Meaning of "claim in tort" for jurisdictional gateway purposes. |
Supported interpretation that claim is "in substance" tortious. |
| Samsung Electronics Co Limited v LG Display Co Limited [2021] EWHC 1429 |
Interpretation of "claim in tort" including contribution claims. |
Supported view that direct claims against insurer can be claims in tort for jurisdiction. |
| Maher v Groupama Grand EST [2009] EWCA Civ 1191 |
Choice of law and tortious nature of direct claims against insurers. |
Supported the Plaintiff’s case that the claim is tortious in nature. |
| Knight v AXA Assurances [2009] EWHC 1900 |
Similar to Maher on direct claims and tortious issues. |
Supported Plaintiff’s argument on the tortious nature of the claim. |
| Youell v Kara Mara Shipping [2002] 2 Lloyd's LR 102 |
Classification of direct claims against insurer as contractual or tortious for jurisdiction. |
Distinguished as factually different; not determinative here. |
| Vidal-Hall v Google Inc [2015] EWCA Civ 311 |
Consideration of foreign law in characterising claims. |
Discussed but not adopted as general principle in this case. |
| Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 |
Principles of forum conveniens. |
Applied to determine appropriate forum for trial. |
| Mercedes-Benz Group AG and another v Continental Teves UK Ltd and others [2023] EWHC 1143 (Comm) |
Recent summary of forum conveniens principles. |
Applied to assess forum conveniens test. |
| VTB Capital v Nutritek International [2013] UKSC 5 |
Importance of trial in country whose law governs the claim. |
Considered but outweighed by other factors favoring England as forum. |
| Brownlie II (FS Cairo v Brownlie) [2021] UKSC 45 |
Distinction between choice of law and jurisdiction. |
Clarified that choice of law and jurisdiction are distinct; influenced analysis. |
Court's Reasoning and Analysis
The court first examined whether the orders extending time for service of the claim form were valid despite procedural defects. The court found that the Plaintiff’s solicitor had effectively made applications via emails, which, although irregular and lacking formal application notices and evidence verified by statements of truth, were sufficient to constitute applications. The court reasoned that the Master must have waived the procedural requirements by exercising her case management powers under CPR Part 3, including CPR 3.10, which allows the court to remedy procedural errors. The court distinguished this case from Vinos v Marks & Spencer, which concerned extensions under CPR 7.6(3), whereas this case concerned CPR 7.6(2), allowing more discretion.
On the merits of the extension applications, the court applied principles from ST v BAI and considered the reasons for delay, the absence of limitation issues, and the conduct of the Plaintiff’s solicitors. The court concluded that the reasons for both extensions were acceptable and that neither order should be set aside.
Regarding the admissibility of further evidence (Beasley 2), the court held that on a rehearing of a without notice order, further evidence shedding light on the situation at the time of the original application may be admitted. Although the Defendant objected, the court admitted the evidence as a case management step.
On jurisdiction, the court applied the gateway and forum conveniens tests. The court held that the Plaintiff’s claim is "in substance" tortious, as it is a direct claim against the insurer based on the underlying tort of the driver. This interpretation was supported by case law including Tulip Trading, Maher, and Knight. The court rejected the Defendant’s argument that the claim was contractual for jurisdictional purposes.
In applying the forum conveniens test, the court considered factors such as the Plaintiff’s residence in England, the convenience and availability of witnesses, the nature of the injuries, and the possibility of the Plaintiff attending trial in person. Although Portuguese law applies to the claim, the court found that the key issues are factual rather than legal, and the differences in law were not determinative. The court also considered the location of related proceedings in Portugal but found they were distinct and would not preclude trial in England.
The court acknowledged comity and the presumption that the place of the tort is relevant but found this outweighed by other factors favoring England as the natural forum. The court also found no significant risk that substantial justice would not be done in England and declined to consider the Plaintiff’s alternative argument about risk of injustice in Portugal.
Holding and Implications
The court DISMISSED the Defendant’s application to set aside the orders extending time for service of the claim form and the challenge to jurisdiction. Both extension orders made by Master McCloud remain valid, and the court has jurisdiction to hear the claim. The Plaintiff’s claim form has been validly served.
The court ordered a fresh Acknowledgement of Service and Defence to be served by the Defendant.
The decision confirms that procedural irregularities in extension applications may be waived by the court’s case management powers under CPR Part 3, particularly when the applications are made within the relevant time and substantive grounds exist. It also affirms the application of the tort gateway and forum conveniens tests in direct claims against insurers for accidents abroad, emphasizing that the substance of the claim and the real and substantial connection to England are determinative for jurisdiction.
No new legal precedent was established beyond the application of existing principles to the facts of this case.