The Dekagram: 15th July 2024

This week we examine the perils inherent in issuing proceedings at the last minute, especially when dealing with the e-filing system implemented in order to make all of our lives easier. As always, the team’s advice is: don’t do it, it’ll end in tears. And there’s been another decision on forum conveniens, further entrenching the role of logistical considerations in considering jurisdictional challenges.

Leaving it to the Last Minute: Issue and Service of Claim Forms

In Guo v Kinder [2024] EWCA Civ 762 the Court of Appeal considered the position of a claimant who had attempted unsuccessfully to file a claim form just before the applicable limitation period expired, followed by a subsequent and successful attempt to file a further claim form in relation to which the claim was statute-barred.

The Facts

The underlying claim arose out of legal advice provided between April 2013 and September 2015, which the claimant alleged was negligent. It seems not to have been in dispute that the action became time-barred on 21^st August 2021. A claim form dated 25^th August 2021 was issued in the High Court and the claim was subsequently transferred to the County Court at Preston. The Respondents applied on 7^th October 2021 for summary judgment or, in the alternative, to strike out the claim on the basis that it was statute-barred, the cause of action having arisen prior to 21^st August 2015. The claim was duly struck out on 17^th March 2022; the claimant appealed this decision unsuccessfully.

Undaunted, the claimant sought permission to mount a second appeal to the Court of Appeal, and obtained permission to do so from Birss LJ at an oral hearing.

The reason Birss LJ gave permission to appeal was that it turned out that the claimant (who was a litigant in person at that stage) had in fact attempted to initiate proceedings prior to 21^st August 2021:

1. She had attempted to e-file a claim form on 4^th August 2021, but had not been able to navigate the e-filing system;
2. She had therefore emailed the court office seeking assistance;
3. She had attached to her email a claim form headed “In the High Court of Justice Queen’s Bench Division Commercial Court Financial List Royal Courts of Justice”;
4. The court office had replied asking her to choose a court – she could not issue out of the Queen’s Bench Division and out of the Commercial Court and in the Financial List;
5. The e-filing system had rejected her attempted filing on 5^th August 2021 but had taken the issue fee of £7,500 on that date;
6. She had then successfully filed a claim form properly on 25^th August 2021. This must have been a new form, because it bore that date, and could therefore not have been the form she had attempted to file on 4^th.

The Claimant’s Submissions

By the time the appeal was heard, the claimant had obtained representation. Her counsel submitted that the claim should have been issued on 4^th August 2021, and/or should be treated as having been issued on 4^th August 2021, when the claimant sent the first claim form to the court. It was submitted that the court should not have rejected the claim form and required the claimant to file a revised version merely because of its heading. The Claimant’s counsel submitted that the decision by the court to reject the first claim form was arbitrary, and it would be unjust if that resulted in the claim having been brought out of time.

In support of this submission counsel pointed out that referring in the title of the claim form to the High Court and the Queen’s Bench Division, as it then was, without referring to the Business and Property Courts, was evidently unobjectionable because the second claim form, which also did so, was accepted for filing. Moreover, referring to the Commercial Court ought to have been unobjectionable, because the Commercial Court is part of the Business and Property Courts, which straddles both the Chancery Division and the Queen’s Bench Division (now the King’s Bench Division). Thus the court could appropriately have accepted the filing in either the Queen’s Bench Division (as indeed it subsequently did) or in the Commercial Court, and, if necessary, the claim could subsequently have been transferred.

The claimant relied on paragraph 6.1 of CPR Practice Direction 7A, which states:

“Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.”

Counsel submitted, of course, that the claim form had been received on 4^th August; but the problem with this submission will be readily apparent – the relevant claim form, the one actually issued, had in fact been received on 25^th August, and could not have been received on 4^th August since it bore a date subsequent to that.

In Chelfat v Hutchinson 3G UK Ltd [2022] 1 WLR 3613 the Court of Appeal gave guidance as to when the court will regard a claim form as being that which was received on a prior date:

“… On the assumption that the substantive content of the claim form – that is to say, the details identifying the parties and of the claim actually being made – is precisely the same on both claim forms, then I take the view that the claim form that was received by the CCMCC in December 2015 was the claim form that was issued the following year. The change to the address for service did not matter because it had no bearing on the claim itself.”

In that case, as Coulson LJ explained, the details identifying the parties and relating to the claim actually being made were precisely the same on both claim forms. The only difference was that an address for service out of the jurisdiction was given in relation to the first claim form but not the second. On that basis Coulson LJ took the view that the earlier claim form was effectively the same claim form that was actually issued the following year.

In Ms Guo’s case, however, there were substantial differences between the two documents – most notably, the claim form dated 25^th August 2021 featured an additional party not named on the previous claim form, and there were ‘substantial’ differences in the brief details of claim, including completely different factual allegations. Therefore the Court of Appeal found that the claimant could not bring herself within the rules set out in the CPR. 

The claimant’s primary position, however, was that the court should exercise its inherent jurisdiction to cure any defect in proceedings caused by the failings of the court office in rejecting a claim form when it ought not to have done so.

The Decision of the Court of Appeal

The decision is a useful reminder of the parameters of the High Court’s inherent jurisdiction to cure errors made by the court office (a jurisdiction not available in the County Court).

In Riniker v University College London, The Times 17^th April 1999 the writ office of the High Court unjustifiably rejected a writ which the plaintiff had asked to be issued, and did not issue it until after the limitation period had expired. The court held that it had inherent jurisdiction to direct that the writ should be treated as if it had been issued on the date when it should have been issued, and that it should exercise that jurisdiction in the circumstances:

“The plaintiff was blameless, and the defendants are not prejudiced if the power is exercised, because the limitation defence which would otherwise be open to them would be wholly adventitious and would result from an error by an officer of the court. There is no reason why the plaintiff should be punished for that error, which she had no means of anticipating.”

In Ms Guo’s case, the Court held that it was a moot point whether the inherent jurisdiction had in fact survived the creation and implementation of Practice Direction 7A, which deals explicitly with these situations; a point the Court declined to consider. Instead it focussed on the fact that if the inherent jurisdiction survives the Practice Direction, it applies only in cases in which the litigant has done all that is necessary and has delivered a claim form to the court office, but it is not issued for some time as a result of an error or deficiency in the court office. In Ms Guo’s case, however, a claim form was not properly delivered to the court office on 4^th August 2021 at all. This was because her attempts at e-filing had been unsuccessful, and:

“in her email at 13.16, Ms Guo stated that she had experienced difficulties in filing and asked the QB Enquiries Officer if she could file by email. The QB Enquiries Officer’s reply at 13.35 stated that Ms Guo should indicate that she wished the claim to be issued in the Queen’s Bench Division and that if this was her wish she should then follow the guidelines set out in detail in order to submit her claim by email or by other means. Although there was an attachment to Ms Guo’s email of 13.16 and it is to be assumed that the 4 August version of the claim form was attached, it had neither been e-filed at that stage, nor had any of the alternatives set out in the QB Enquires Officer’s email been followed. Although litigants in person were encouraged to use C-E Filing, a number of other options were set out.”

She had not actually taken any of these options. Therefore she had not ‘sent’ the claim form to the court for issue at all.

Moreover, the court officer had not been wrong to query which court Ms Guo wished to issue out of; the office had not made an error such as to justify the exercise of the inherent jurisdiction, if indeed it existed.

The Court therefore dismissed the appeal.

Comment

A number of useful learning points arise:

1. It is perhaps trite to say so, but it is always best not to wait until the last moment before issuing (or attempting to issue) a claim;
2. Where the court rejects a claim form, the claimant would be well advised only to cure the defect identified by the court – any amendments going beyond this will tend to render the form substantially different to the original, depriving the claimant of the opportunity to rely on CPR7PD7A,para.6.1;
3. The court may or may not have an inherent jurisdiction to come to the rescue of claimants whose claim forms have been rejected by the court office, but even if it does, it will only do so where the claimant is genuinely aggrieved, having done all that (s)he ought to have done, and the court having been shown to have made an error in rejecting the proceedings. In any event, this is a jurisdiction only available in the High Court, and not in the County Court; and it may be that following the implementation of Practice Direction 7A it is not available at all (and readers may take the view that it would have been helpful for the Court of Appeal to determine this issue – but we must allow their lordships to save some enjoyment for another time).

All in all, as the author’s mother would say when asked for directions, I wouldn’t start from here. The case is another reminder that when issuing proceedings it is always, always better to leave ample time to deal with the unknown unknowns which experienced litigators know no one knows til they’re known.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.

Applicable Law and forum non conveniens

In Lunn v Antarctic Logistics Centre International [2024] EWHC 1662 (KB), the High Court considered an application from the Defendant pursuant to Part 11, challenging the jurisdiction of the courts in England and Wales to determine the Claimant’s personal injury claim. The Claimant was a self-employed aircraft engineer, who, at the time of the accident causing the injuries, was carrying out checks on an aircraft that was stationary on the Novo Airstrip in Antarctica.

Background

The Particulars of Claim pleaded that the Claimant was a British citizen and was resident in the UK at the material time. The Defendant was a company incorporated under the law of South Africa. The Defendant sought to set aside an order permitting the Claimant to serve proceedings on it in South Africa, and sought a declaration that the court did not have jurisdiction to try the claim, or in the alternative that it should not exercise any jurisdiction that it may have to try the claim.

The Claim was issued, and the Claimant applied for permission to serve outside the jurisdiction, along with an extension of time for service. The application to serve out was under CPR PD 6B para 3.1(9) on the basis that the damage was sustained, or will be sustained, within the jurisdiction. That application was granted, the Defendant was served, and the Defendant acknowledged service and shortly thereafter made its application challenging jurisdiction.

Issue

The issue for determination before the court was whether England and Wales was the proper place to bring the claim against the Defendant.

The court set out that the requirements to be satisfied on an application for permission to serve on a foreign defendant out of the jurisdiction were summarised in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7, [2012] 1 WLR 1804 (“Altimo”), at [71]:

“…the claimant … has to satisfy three requirements: Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1AC 438,453-457. First, the claimant must satisfy the court that in relation to the foreign defendant there is a serious issue to be tried on the merits, ie a substantial question of fact or law, or both. The current practice in England is that this is the same test as for summary judgment, namely whether there is a real (as opposed to a fanciful) prospect of success… Second, the claimant must satisfy the court that there is a good arguable case that the claim falls within one or more classes of case in which permission to serve out may be given. In this context good arguable case connotes that one side has a much better argument than the other: see Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547, 555-557, per Waller LJ affirmed [2002] 1 AC 1; Bols Distilleries BV v Superior Yacht Services (trading as Bols Royal Distilleries) [2007] 1 WLR 12, paras 26-28. Third, the claimant must satisfy the court that in all the circumstances [the relevant forum] … is clearly or distinctly the appropriate forum for the trial of the dispute, and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.”

The Defendant conceded that the Claimant’s continuing symptoms were sufficient to establish an arguable case that the tort gateway was met, and so the questions before the court were:

1. The merits test: has the Claimant has established that his pleaded case has a reasonable prosect of success / there is a serious issue to be tried on the merits (CPR 6.37(1)(b))?
2. Forum conveniens and discretion: has the Claimant established that England and Wales is the proper place to try the claim and, if so, in all the circumstances, ought the court to exercise its jurisdiction to permit service out of the jurisdiction (CPR 6.37(3))?

Additionally, there was a dispute about the applicable law, which was relevant to both the above questions, and so fell to be considered first, although neither party sought a separate declaration on which law was applicable.

Applicable law

The Claimant submitted that English law should be deemed to apply at this stage of proceedings pursuant to either the default rule or the presumption of similarity. The Defendant submitted that South African law was appliable pursuant to Article 4(2) of Rome II.

Article 4(2) of Rome II states that “where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply”. The Defendant’s position was that the Claimant’s principal place of business was South Africa, and that the Defendant was domiciled there, and therefore South African law applies pursuant to Art 4(2) of Rome II. The evidence for the Claimant was that he was an individual, without a principal place of business. He was permanently resident in England, and at the material time of the incident, the Claimant declared all his personal income to HMRC.

The Defendant made various submissions, including that the Claimant was probably living in Cape Town while the aircraft he was servicing was located there, that the Claimant had spent five weeks in hospital in South Africa without being repatriated to any other county, the nature of his job indicated he did not appear to have had consistent physical location in England and Wales, and no documentary evidence had been provided in relation to his tax.

The Claimant cautioned the court against accepting the Defendant’s assertions, most of which were not supported by evidence. Based on what was before it, the court found it appropriate to proceed on the basis of the witness evidence before it, finding that the Claimant supplied his professional services internationally whilst remaining permanently resident in the UK, and rejected the Defendant’s submission that South African law was applicable pursuant to Article 4(2).

Instead, the court accepted that, at that stage of the proceedings, English law should be held to apply to Article 4(3) on the application of the ‘default rule, or, alternatively, on the basis of a presumption of similarity.

Article 4(3) states:

Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a preexisting relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.

The court set out the relevant guidance in Brownlie II, quoting Lord Leggatt’s summary of the default rule as follows:

“113. The obvious objection to the default rule is that, where the relevant rules of English private international law provide that the law applicable to an obligation is the law of another country, it is the duty of the court to apply that system of law and not English law to the obligation. The answer given to that objection by those who defend the default rule is that, in an adversarial system such as that in England and Wales, if a party does not rely on a particular rule of law even though it would be entitled to do so, it is not generally for the court to apply the rue of its own motion. The issues in proceedings are defined by the parties’ statement of case. Thus, it is for each party to choose whether to plead a case that a foreign system of law is applicable to the claim; but neither party is obliged to do so and, if neither party does, the court will apply its own law to the issues in dispute.

114. I think this justification for applying English law by default is valid so far as it goes. Article 1(3) of each of the Rome I and Rome II Regulations provides that (with immaterial exceptions) the Regulation “shall not apply to evidence and procedure”. The rule that … the court is not obliged to decide a case in accordance with a rule of law on which neither party chooses to rely is a rule of English civil procedure…. In accordance with this procedural rule, the English court is not obliged to apply the choice of law rules contained in the Rome I and Rome II regulations if neither party chooses to assert in its statement of case that foreign law is applicable. That is so even if the case is one to which a foreign system of law would clearly have to be applied if either party chose to rely on that fact…

…

116 The rationale for applying English law by default, however, depends upon neither party choosing to advance a case that foreign law is applicable. If either party pleads that under the relevant rules of English private international law foreign law is applicable to an obligation, and that case is well founded, it is the duty of the court to apply foreign law. To apply English domestic law in that situation would ex hypothesi be unlawful. In accordance with general principle, the burden is on the party who is making or defending a claim, as the case may be, to prove that it has a legally valid claim or defence. Where the law applicable to the claim or defence is a foreign system of law, this will require the party to show that it has a good claim or defence under that law.”

The court emphasised that courts historically apply English law in cases where foreign law is recognised to be applicable, but the content of the foreign law has not been proved, and that Rome II had not changed this.

It went on to agree with the Claimant, that in the circumstances, it was appropriate for the court to apply English law on the default basis at the jurisdictional stage. The court kept in mind the needs of proportionality and practicality, and noted that, as the matter proceeds, the Defendant would have the option of pleading, and attempting to establish that foreign law applies. It further went on to find that, if it was wrong, that it was reasonable to assume for present purposes, in the absence of evidence to the contrary, that the relevant legal principles in respect of tort/delict were likely to be broadly similar to those under English law, again relying on the reasoning in Brownlie II.

Merits

Having concluded that English law was applicable, the court went on to consider the merits, and the court was satisfied that the allegations against the Defendant satisfied the relevant test of having a real prospect of success/raising a serious issue to be tried on the merits.

Forum conveniens and discretion

The court emphasised that it was for the Claimant to satisfy the court that England was the appropriate forum for the claim to be tried for the interests of all parties and for the ends of justice, and that included but was not limited to a consideration of matters of practical convenience. The court relied on the following summary provided by Peter MacDonald Eggers KC (sitting as a Deputy Judge of the High Court) in Boettcher v Xio (UK) LLP (in liquidation) and Others [2023] EWHC 801 (Comm), at [88], albeit in the context of a challenge on forum non conveniens grounds:

“88. Having regard to the authorities and commentaries ([…]), the factors which the Court can take into account in determining the question whether England is the more appropriate forum or another jurisdiction is the more appropriate include, but are by no means limited to:

(1) The connection between the factual elements of the dispute to the competing jurisdictions.

(2) The law governing the transaction.

(3) The location of the parties to the dispute both at the time of the events giving rise to the dispute and also during the course of the proceedings.

(4) Whether proceedings relating to the dispute between the applicant and the respondent would be fragmented by any order for or against a stay which the Court might make, and whether there would be concurrent proceedings in more than one jurisdiction, with the risk of inconsistent judgments being obtained in those jurisdictions.

(5) The location and availability of documentary evidence (although whether this is a material practical consideration depends on the ease with which such documents can be digitally copied and transferred and whether there are caches of documents which require review only at particular locations).

(6) The location and availability of witnesses (bearing in mind that this last consideration may be mitigated if evidence can or is to be given remotely consistent with the requirement of a just and fair proceeding).

89. A consideration of the relevant factors will assist the Court in deciding where the warp in the litigation fabric leads to the location of the weight of the dispute, but the review of each of these factors should also be evaluated by a holistic view of the matter (Erste Group Bank AG (London) v JSC ‘VMZ Red October’ [2015] EWCA Civ 379; [2015] 1 CLC 706, para. 149; Briggs, Civil Jurisdiction and Judgments (7th ed.), para. 22.17).”

The court went on to take the following into consideration:

• Domicile of the parties: the Claimant being a British citizen living in Rochdate who never lived in South Africa, and the Defendant’s registered office and centre of operations being in South Africa.
• Witnesses: The Claimant provided details of eleven factual witnesses he intended to call, eight of whom were based in England, three in Europe, and one in Qatar. In addition, he had instructed a medical expert who was based in England and would instruct a further expert also based in England. The Defendant’s evidence in relation to its witnesses was less clear, although it said that one, possibly two, witnesses would be based in South Africa, and one in Argentina. Unsupported assertions were made about witnesses based in Russia and the apparent difficulties with visas that they would have.
• Expertise of the South African courts on the subject matter: The Defendant submitted the South African courts were familiar with the relevant standards of airfields in Antarctica, but again, the court noted it had no evidence to support that contention.
• Recognition of foreign judgments in South Africa: The Defendant raised issues about potential unenforceability of English judgments in South Africa, but again there was no evidence or detailed submissions in support of that contention.
• Factual focus of the litigation: Neither England nor South Africa was the place where the accident took place.

The court held that (at [108]):

“this is a case in which the real distinguishing features in favour of one forum rather than another are the practical considerations relating to the location of witnesses. The fact that the majority of the likely witnesses, insofar as they have been identified on the evidence before me, will be in England or can easily attend court in England, strongly favours England as the appropriate forum for the trial of this claim. Equally, the evidence before me does not support a conclusion that there are identified witnesses who are likely to be called to give evidence and who cannot attend a trial in England.” 

It went on to hold (at [116]):

“the Claimant has, in my judgment, satisfied the burdens upon him to show (a) that the claim has a reasonable prospect of success, (b) that there is a good arguable case that the claim falls within the relevant jurisdictional gateway (a point rightly conceded by the Defendant), and (c) that England and Wales is the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice and is clearly and distinctly the proper place to bring the claim. In all the circumstances, I am satisfied that this is a case in which it is appropriate for the court to exercise its discretion to permit service of these proceedings out of the jurisdiction on the Defendant.”

The Defendant’s application was therefore dismissed.

What is notable throughout is the that the Court balanced taking a common sense approach to matters (both factual and legal) that remained unclear at the jurisdictional stage, doing the best it could with what was before it, while at the same time not placing weight on the Defendant’s multiple unsupported assertions.

About the Author

Kerry Nicholson takes instructions across all of chambers’ core areas. Prior to joining 1CL Kerry worked for the Government Legal Department working across a variety of departments in both litigation and advisory roles. She now enjoys working within the team on travel related and other claims.