Accidents abroad: after Brexit can I still bring my claim in the UK?
By, Mike Hagan & Sarah Prager
Now that the dust has settled on the UK’s departure from the European Union, the ‘Brussels Convention’ which was one of the main mechanisms for establishing the jurisdiction of the English Courts in respect of accidents occurring abroad, no longer applies in the UK, it’s time to take stock of the jurisdictional position.
Jurisdiction means the right to bring your claim in a particular Court. For example if an English national is injured in an accident whilst on holiday in France, he could bring the claim in France (being the place where the accident occurred) or he could try and bring the claim in the English courts (being the place where he lives).
In most cases, for UK domiciled claimants, it is preferable to bring your claim in your home courts, even if those courts will be applying the law of a foreign country, because the proceedings will likely be in English, and you will be able to instruct English solicitors on a ‘no win no fee’ basis.
This question of where a claim can be brought (jurisdiction) depends on the facts of the case.
In most cases with a foreign element, the UK courts are now applying the ‘common law’ jurisdictional rules contained within the civil procedure rules.
The common law rules are underpinned by a ‘most appropriate forum’ test. This means that in any case where they apply, you must make an application to Court and the Judge. If jurisdiction is disputed, will have to decide if you should be able to bring your claim in your home Court. The fact that there is judicial discretion means these applications are uncertain, for example one case of an accident in France, the English court may grant jurisdiction, but in another they may refuse it and saying the claim should instead be brought in France.
In two distinct categories of case, however, these rules do not apply; and it is important that people injured in accidents abroad are aware of these provisions;
In anticipation of Brexit, the Civil Jurisdiction and Judgments Act 1982 (‘the Act’) was amended to preserve the jurisdictional regime provided for by the Brussels Regulation in respect of two important areas – consumer contracts and individual contracts of employment.
Pursuant to the Act where a consumer is resided in the UK and where the subject-matter of proceedings is ‘a matter relating to a consumer contract’:
“The consumer may bring proceedings against the other party to the consumer contract—
where the other party to the consumer contract is resided in the United Kingdom, in the courts of the part of the United Kingdom in which the other party to the consumer contract is domiciled, or in the courts for the place where the consumer is resided (regardless of the domicile of the other party to the consumer contract).”
The consumer’s choice is therefore not restricted by arguments that another Court may be a more appropriate place for the claim to be heard. The claimant can choose the jurisdiction most advantageous to his purposes, and the Defendant is powerless to escape it.
It would seem, therefore, that where a UK resided claimant, acting as a consumer, enters a contract with a foreign entity, and suffers loss during the course of the performance of that contract, he may sue the other party to it within the courts of his home domicile.
However, for this section to apply the contract, which is alleged to have been breached, must be a ‘consumer contract’
“consumer contract” means (for our purposes)— a contract which has been concluded with a person who— pursues commercial or professional activities in the part of the United Kingdom in which the consumer is resided, or by any means, directs such activities to that part or to other parts of the United Kingdom including that part, and which falls within the scope of such activities, but it does not include a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation or a contract of insurance.”
The Act therefore requires that the other party to the contract (the defendant) must direct its activities to the consumer’s domicile
In practice, it is a simple matter to show that a business directs its activities to the consumer’s home; a website offering an English language version is a strong indicator that a business is plying its trade within this jurisdiction. Some businesses, such as many offering cosmetic surgery abroad, make much of this connection; they cannot then disavow it when it comes to jurisdictional analysis. One downside to the provision is that it doesn’t apply to contracts for transport unless they are for transport and accommodation. This would seem to rule out a lot of common types of scenarios in the context of holiday accidents, for example open top bus tours.
Despite its limitations, in the experience of the authors this provision is under-used by travel litigation lawyers, and is something which should always be considered when a UK citizen has entered into a contract with a foreign entity, and suffered injury.
The other area in which the Act confers jurisdiction over claims previously governed by the Brussels Regulation is in relation to proceedings whose subject-matter relates to an individual contract of employment:
This provision allows an employee to bring a claim in for personal injury, either in the courts of the employer’s residence, or in the courts of the place where the employee usually carries out their duties, or in the courts of the place where the business which engaged the employee is situated.
These important provisions allow employees to choose whether to sue their employers in the latter’s home residence, or in the place from which they work, or where any employment agency may be situated.
Once again, these provisions provide a simple and effective way around many of the problems experienced by employees seeking to bring claims within the jurisdiction of the UK, particularly in respect of travelling workers.
It is worth noting that the increase in working from home may bring more employees within this provision if they can reasonably be said to carry out their work routinely from their home within England and Wales. In this respect it is important to note that the accident need not have occurred during this usual work pattern but could very easily have occurred abroad.
Again, as with consumer contracts, if a claimant comes within the employment contract provisions, then have a right to bring the claim in their home courts. In the atmosphere of jurisdictional uncertainty, arising from the Brexit process, this is a right which is of significant value, and should be considered in any case in which it could be applicable.
About the Authors
Mike Hagan is a senior solicitor and head of the travel team within the flagship Serious Injuries Unit at Fletchers Solicitors. He is cited in the Legal 500 for his work, and his cases have been frequently covered by both the local and national press.
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, 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 was recently named Travel Lawyer of the Year 2022 by Best Lawyers UK, and Personal Injury Advisor of the Year 2022 by Global 100 and Lawyer International Legal 100.