Graham v Fidelidade is the latest High Court decision dealing with establishing jurisdiction in England & Wales following an ‘accident abroad’. The defendant, based in Portugal, was the insurer of the driver who was responsible for the road traffic accident in Portugal in 2021 in which the claimant was seriously injured. He sought to issue proceedings in England & Wales and serve them outside the jurisdiction.

As we have summarised in previous articles, there is a three-part test for doing so. First, a merits test (a serious issue to be tried), second a gateway test (that the claim meets one or more of the relevant jurisdictional gateways in the CPR) and third a forum conveniens test (that England & Wales is the most appropriate forum to hear the dispute). In this latest case the defendant accepted the first, but disputed the second and third.

If the claim against the insurer was a “claim in tort”, the relevant gateways would be those at Practice Direction (PD) 6B, 3.1(9), which includes where “(a) damage was sustained... within the jurisdiction”. It is now well-settled, following the Supreme Court’s decision in Brownlie II [2021] UKSC 45 nearly three years ago, that ongoing losses in England & Wales following ‘accidents abroad’ meet this test.

But the claim here was made directly against the insurer and not the tortfeasor (the driver), so the analysis required was a little more nuanced. The judge noted that there is no definition of ‘tort’ for the purposes of the gateway test, with guidance from previous cases on the current version of the PD pointing to the need to consider whether the claim is ‘in substance’ a tortious one and/or whether the claim has an ‘underlying’ tort. She also found support for adopting a purposive interpretation to ‘tort’ in this context from the earlier version of the provision having referred to claims “founded on a tort”. Drawing this together: “In my judgment the claimant's case is ‘in substance’ tortious. He seeks damages for the loss and injury sustained to him as a result of the driver's tortious actions…the defendant is not itself in breach of a tortious duty of care owed towards the claimant, but the claim is nevertheless based on the ‘underlying’ tort committed by the driver. It is ‘founded on a tort’."

The final element, the forum conveniens test, is very fact-dependent in these types of case. Either England or Portugal were the possibilities for the most appropriate forum. The claimant’s injuries and condition were such that travelling to Portugal for medical examinations or for hearings would have been very challenging. The judge also found that a range of other factors in the case pointed to England being the most appropriate forum and therefore granted permission for service out against the defendant.

Standing back a little, Graham is another claim in which a foreign defendant (often an insurer) has unsuccessfully attempted to challenge jurisdiction of the courts of England & Wales in a personal injury claim brought by a claimant based in England. It may simply be coincidence that several recent cases have been decided in this way – i.e. against the defendant based outside the jurisdiction - or it might be that English courts have (regardless of Brexit) become more familiar with dealing with these sorts of claims in the three years since the effective widening of the tort gateway by the decision in Brownlie II.

If you would like to discuss any of the points raised in this article, or Clyde & Co’s expertise in defending cross-border motor insurance claims, please contact Craig Evans.