The Dekagram: 10th March 2025

This week we bring important guidance on where to issue claims and when to consider whether a split trial might be appropriate – and consider a case in which the Court of Protection deftly sidestepped a tricky jurisdictional question, which remains outstanding for another day.

Issuing proceedings at the High Court: a warning

Recently, the High Court gave a stern warning to personal injury and clinical negligence practitioners in relation to issuing proceedings in the High Court. In Boyd v Hughes [2025] EWHC 435 (KB), Mr Justice Cotter set out a number of observations in relation to issuing claims in the High Court, where he profoundly rejected the suggestion that the administration of a multi-track claim in the County Court or a regional High Court centre was “comparatively woeful” in comparison to the Royal Courts of Justice.

The facts

On 23^rd June 2020, the Claimant, who was employed by the Defendant as a rider and stable hand, fell from a horse and sustained a serious injury to her right arm. The Claimant alleged that the horse in question was able to shy/jink more easily than other horses and had previously shied at something when being ridden at a trot by the Claimant. She contended that the Defendant was strictly liable for the accident by virtue of section 2(2) of the Animals Act 1971.

At the time of trial, liability and quantum remained in dispute. In addition, the Defendant alleged that the Claimant had been fundamentally dishonest.

Procedural issues

After dismissing the case and finding that the Claimant had not been fundamentally dishonest, Mr Justice Cotter set out some procedural issues that had arisen in relation to the case. He noted that it appeared to him that “both the venue and level of Judge were wrong and that something had gone badly amiss in the issue and management of the claim”. He had invited the advocates for an explanation after closing submissions on several issues, namely:

1. Why, given the value on the Claimant’s full pleaded case of significantly less than £500,000, was the case not issued in the Cardiff County Court (as both parties and their witnesses lived relatively close to Cardiff)?
2. Why, if it was appropriate to issue in the High Court, was it not issued in the Cardiff District Registry?
3. Why, even if the RCJ was appropriate for issue, was a transfer to Cardiff and/or to the County Court not sought at a later stage, or indeed at any stage on behalf of the Defendant?
4. Why was no consideration given to the trial of liability as a preliminary issue?

The Claimant contended (amongst other things) that the quality of the judiciary and case management at the RCJ was a significant benefit to the administration of justice for their client, and that administration of a case in the County Court was, with respect, “comparatively woeful”. Further, it was argued that Animals Act work was specialised, the parties’ solicitors were in or around London, and that a trial in Cardiff would have required a change in counsel.

The Defendant submitted that a split trial was not considered appropriate when the Defendant applied to amend its defence, on the basis that credibility had a bearing on facts in issue on the liability question. Further, the Defendant argued that it only became apparent under cross-examination that the value of the claim had decreased.

Having considered these responses, Mr Justice Cotter was of the view they contained “erroneous reasoning”. As a result, the case did not proceed in line with the overriding objective and at proportionate cost. He noted that “sadly, some of this reasoning still regularly underpins the approach of some legal representatives in personal injury and medical negligence cases”. He proceeded therefore to make a number of observations:

1. The parties have a duty to help the Court further the overriding objective.
2. This was, at the outset, a relatively straightforward personal injury claim. It was issued with a limitation of £100,000 and at no stage did the Claimant’s full valuation exceed £500,000.
3. The case should have been issued in the County Court.
4. In every personal injury and clinical negligence case with a realistic valuation which is below £500,000, very careful consideration should be given to CPR PD 7A paragraph 2, as to whether issue in the High Court is justified. Personal injury cases of under £1 million may be suitable for transfer to the County Court.
5. In this case, there were no factors justifying issue in the High Court.
6. Even if issue in the High Court had been justified, the claim should have been issued in the Cardiff District Registry. Mr Justice Cotter rejected without hesitation the suggestion that compared to the Royal Courts of Justice the administration of a multi-track claim in the County Court or a regional High Court centre is “comparatively woeful”.
7. It is wrong to suggest that facilities for remote evidence are better in the Royal Courts of Justice than many or not most large regional centres. It seemed that consideration was largely (if not solely) given to convenience of solicitors and counsel, which was not an ordinarily reasonable approach to conducting litigation.
8. The choice of a solicitor based in London should not, without more, ordinarily justify a case which would otherwise clearly proceed in a District Registry.
9. The parties failed to adequately consider whether liability should be determined as a preliminary issue before the first CCMC. The likely savings in terms of costs and the greater speed with which the issue of liability could have been determined were both considerable and obvious. Any party who does not give consideration to whether liability or other discrete issues could be determined as a preliminary issue is failing to further the overriding objective and may be liable to criticism by the Court and potentially face adverse costs consequences.

Mr Justice Cotter ultimately considered that the result of this case progressing as a full trial of all issues in the Royal Courts of Justice was wasted costs, a disproportionate use of a High Court Judge and Court resources, and an inability for witnesses to easily attend trial.

Comment

This judgment serves as a warning that the High Court will not tolerate cases being issued improperly, when they could have been issued in the County Court. Describing the administration of cases in the County Court and District Registries as woeful as a justification was unduly critical and would not (and could not), in any event, have supported the decision to issue in the High Court. It is a reminder to us all to consider the venue at which proceedings are issued very carefully, so as to avoid any criticism or indeed costs arguments throughout the course of proceedings.

About the author

Ranked by the Legal 500 2021, 2022 and 2023 and by Chambers and Partners 2023 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

Irwin Mitchell Trust Corporation Ltd v KS & Ors [2025] EWCOP 7 (T2) 

KS suffered severe brain damage at birth as a result of medical negligence. She is not expected to acquire mental capacity on adulthood. IMTC is the appointed Deputy.

Her family pursued a substantial claim for damages, which was successful. KS therefore has very substantial assets- in the order of £7 million; all held in a number of investment portfolios in England and Wales, primarily that operated directly by the Deputy.

However, KS is now 14. She and her family have moved to India; because “her health is considered to be better in the Indian climate and she enjoys school, which was not the case in the UK” and, after all, “the expenditure required to meet her care needs is also lower”. She returns to the UK occasionally for medical treatment but otherwise is domiciled in India.

No doubt was expressed that this arrangement was appropriate; however, understandably given the location of the assets, the Deputy wished the Court of Protection to continue to exercise jurisdiction in respect of KS’ property and financial affairs notwithstanding the above.

The Court readily accepted that there was an attractive “pragmatic argument” in favour of the Court of Protection retaining jurisdiction on the facts, but “pragmatism is not a proper basis for deciding an issue about jurisdiction.”

Pause and take breath; because the jurisdictional arguments are not straightforward. In short:

1. The Court’s powers in respect of persons under 16 derives from s.18(3) Mental Capacity Act 2005, and requires only that the person is not anticipated to have mental capacity on turning 18.
2. The Court generally has jurisdiction under sch.3 para.7 in respect of assets in England and Wales regardless of habitual residence.
3. That applies, however, only in respect of “adults”, which, in this context, applies to persons aged 16 or above in most circumstances- sch.3 para.4(1).
4. The 16-year-old cut off point increases to 18 if the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co Operation in respect of Parental Responsibility and Measures for Protection of Children 1996 (“Hague 34”) applies- sch.3 para.4(2). India is not a signatory to Hague 34; and so these provisions are note engaged.
5. So- it was “common ground between the parties that the Court of Protection of England and Wales would have jurisdiction… if either KS were over 16; or [was] habitually resident in England and Wales”, but the trouble was that “KS is neither of those things”.
6. As the Court puts it; “How then do s18(3) and Schedule 3 of the Act fit together?”

The short answer was that the Court could not find an answer in the statutory scheme; and, bluntly, short-circuited it. It considered that it was entitled to retain jurisdiction directly under Art.14 Hague 34, because:

a. paragraph 4.11 of the Handbook spells out that “nothing …stands in the way of retention of jurisdiction by the authorities of the Contracting State under their non-Convention Rules.”

b.  paragraph 42 of the Lagarde Report echoes that position: “nothing stands in the way of retention of jurisdiction, under the national law of procedure, by the authority of the Contracting State of the first habitual residence which has been seised of the matter.”

In other words, national law of the country of first habitual residence applied; even where there had been a change of position. Since that plainly was England and Wales; no further investigation into the jurisdictional issues was needed.

That resolved the difficulties for KS in a pragmatic way, but of course it leaves open a very substantial jurisdiction question for another day.

In the case of a child likely to lack mental capacity; with substantial assets in England and Wales (for example, as a result of a settlement), who has never been habitually resident here or has ceased to do so before the first court action; surely the implication is that the Court of Protection lacks jurisdiction over those assets, notwithstanding the practical implications?

Or was there a sensible argument to the contrary missed, given that it proved academic in the circumstances? A problem for another day; but an area that needs future attention.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus.