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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Banks V. CGU Insurance Plc [2004] ScotCS 241 (05 November 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/241.html Cite as: [2004] ScotCS 241 |
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OUTER HOUSE, COURT OF SESSION |
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A2648/02
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OPINION OF LADY SMITH in the cause KELLY BANKS Pursuer; against CGU INSURANCE PLC Defenders:
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Pursuer: Scott ; Blacklock Thorley
Defenders: MacLean; Simpson & Marwick
5 November 2004
Background:
[1] On 3 July 1998, the pursuer, who lives in Hauxton, near Cambridge, was injured in a road traffic accident when she was on holiday in Crete. She was cycling and a taxi driven by Mr M Petrakis collided with her. Mr Petrakis was insured by the General Accident Insurance Company Ltd ("GA") whose rights and liabilities were subsequently taken over by the defenders. In terms of section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 Greek law applies to the pursuer's claim. Under Greek law, the pursuer has a direct right of action against Mr Petrakis' insurers. [2] This is, however, not the only action raised by the pursuer arising out of her accident in Crete. On 26 June 2000, proceedings were issued against CGU International PLC in Guildford District Court. CGU International PLC made it clear in terms of their written defence to that action (No.7/1 of Process) that they were not the correct defendant because it was the defenders in this action, not they, who had succeeded to the relevant rights and liabilities of GA. Full details of the defenders' designation were set out in the defences to those proceedings. In August 2000, an application to strike out the proceedings in Guildford District Court was made on the basis that the pursuer had sued the wrong defendant. That application was granted. It seems that no attempt was made to avoid striking out by seeking to amend the name and designation of the defendants to that of these defenders. [3] The question of whether or not an action has suffered limitation being a matter of substantive law, it falls to be determined, in this case, in accordance with Greek law. The same would apply if the action were litigated in England (see: Foreign Limitation Periods Act 1984 s.1(1) and Halsbury's Laws of England vol.24 at p.930). Parties were agreed that, under Greek law, the relevant limitation period is one of two years but that period is extended to five years in the case of a road traffic accident if the driver responsible has filed with the police a certificate of insurance from a recognised insurance company. The pursuer avers that Mr Petrakis filed his certificate of insurance with the police in this case. It seems, however, that the pursuer's English solicitors may, after the proceedings that were issued in Guildford District Court were struck out, have thought that her right of action had become time barred on the basis that more than two years had elapsed since the accident. [4] Some time thereafter, however, the pursuer raised an action in this court against CGU International PLC. That action being, again, against the wrong defender, it was settled on the basis that no sums were paid to the pursuer, absolvitor was pronounced and a finding of no expenses due to or by either party was made. No explanation was advanced as to how or why the pursuer repeated, in Scotland, the error that she had made in England regarding identification of the correct defender.The present action:
[5] On 17 October 2002 , over four years after the accident, the present action was raised. In 2002, prior to that date, the defenders ceased to trade and their rights and liabilities were taken over by Norwich Union whose registered and head office is in Norwich. They do, however, have an office at Pithleavis, Perth, from which the defenders formerly carried on business. The present action was served there and, as is evident from the execution of citation, service was accepted by an employee of Norwich Union on behalf of the defenders. [6] It is evident from the averments that the pursuer herself has no connection with Scotland. She returned to England after the accident, having received some treatment in Greece. She was treated thereafter at Addenbroke's Hospital, Cambridge and Broomfield Hospital, Chelmsford. On the face of the averments, she sustained serious injuries, particularly burns. She has undergone major reconstructive surgery and continues to experience problems with extensive scarring. She has also sustained psychological injury. Prior to the accident, she worked in London. She returned to work there in about December 1998 but was unable to carry on with her pre-accident work after April 1999. She began a new job which, since she lives near Cambridge, can be assumed to involve working in the south of England. She claims for loss of earnings and prejudice on the labour market which, again, can be assumed to be the labour market in the south of England. [7] The case came before me on the procedure roll in respect of the defenders' second plea in law, a plea of forum non conveniens. The argument was that, whilst there was no doubt that this court had jurisdiction, the pursuer's action would be more appropriately pursued in England. Parties were agreed that the English courts would have jurisdiction in such an action, which would be raised against Norwich Union. There was also agreement that it was competent, notwithstanding the provisions of the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, for the plea of forum non conveniens to be taken as between two jurisdictions within the United Kingdom, since they were not separate member states.Submissions for defender:
[8] Counsel for the defenders submitted that the action could more suitably be tried in the English courts, in the interests of the parties and in the interests of justice. She submitted that England was the appropriate forum under reference to the tests set out in the cases of Sim v Robinow 1892 4R 665 and Spiliada Maritime Corporation v Cansulex Ltd 1987 1 AC 460. In applying those tests it was, she said, relevant that the action had no real connection with Scotland. Although the defenders had traded in Scotland and had been the relevant insurance company for this claim for a short period, they no longer traded at all. When they did trade, although they were domiciled in Scotland, they also had an English domicile, although it was conceded that Norwich Union, similarly, had both an English and Scottish domicile. Scots law would not apply to the determination of liability in the case. The witnesses would be either Greek or English. The pursuer's medical evidence would all come from English doctors who would be inconvenienced by having to travel to Scotland for the proof . Although the defenders had not yet instructed any medical experts, it was likely that they would, because of the pursuer's situation, instruct experts in England, who would also have to travel to Scotland to give evidence. None of the pursuer's medical records were in Scotland. It was thought that all the relevant ones were in England, on the basis that she had been treated there since returning home after the accident and it seemed likely that her Greek records would have been sent home with her. The same applied to her employers' personnel files. None of them were in Scotland. Accordingly, documents might have to be recovered in England and procedures for doing so would be more cumbersome if in the context of a Scottish action. Further, the pursuer's actions in issuing proceedings in Guildford District Court showed that her original intention was to litigate in England rather than Scotland. In short, she seemed, at least at that stage, to regard England as the more appropriate forum. In all the circumstances these were, to use the language employed in the case of Credit Chimique v James Scott Engineering Ltd 1979 SC 406, weighty reasons in favour of sustaining the plea. [9] Counsel for the defender also made submissions regarding the question of time bar. This was against a background of the pursuer having averred that the claim had been time barred under Greek law since 3 July 2003 and the defenders having denied that averment. Neither party makes any averments as to whether or not, under Greek law, an equitable discretion exists that is comparable to that available in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973. Counsel for the defenders sought to persuade me that in the absence of the pursuer having made specific averments on that matter, I should assume that Greek law is the same as Scots law. In support of that submission, she referred to the cases of Kraus' Administrators v Sullivan 1998 SLT 963 and Bonnor v Balfour Kilpatrick Ltd 1974 SLT 187. On that basis, I should, she submitted, assume that there will be available to the pursuer, in any fresh action in England, an equitable plea that she be allowed to proceed even although the action is prima facie time barred. In any event, it was submitted, even if the pursuer was going to find herself in difficulty because of limitation, that factor should not carry weight because no explanation had been given as to why the wrong defender was sued in England, or why she initially sued the wrong defender in Scotland and she would clearly have a remedy against the solicitors who failed to seek to amend the defenders' designation when the application was made to strike out the proceedings in Guildford District Court.Submissions for pursuer:
[10] Counsel for the pursuers submitted that the plea of forum non conveniens should be repelled. He submitted that the starting point was that the burden lay on the party tabling the plea. There required to be another court of competent jurisdiction and the party submitting that the action should be pursued there required to show that the interests of parties would be more appropriately served and the ends of justice more appropriately secured in the other court. There needed to be weighty reasons for this court to refrain from exercising jurisdiction and mere balance of convenience was not enough. Securing the ends of justice required, he submitted, that the case be properly litigated on a level playing field. [11] He relied on the fact that the defenders had been properly sued in Scotland. The factors relied on by the defenders were, he submitted, matters of convenience, not substance. He also relied on the fact that the present case had been ongoing since October 2002 and much time had already been expended and expense incurred in preparing the case. If the defender's plea was sustained, the pursuer would have to start again. [12] The pursuer's counsel also submitted that the action would now be time barred in England under the Greek laws of limitation. The defenders had not indicated that they would waive the plea of time bar that would be open to them. There were no averments that an equitable discretion to override time bar would be available for the pursuer to pray in aid. Rather, the pursuer's position was clear, namely that, as averred in Article 7, the claim had been time barred under Greek law since 3 July 2003. In these circumstances, it did not follow that the assumption fell to be made that Greek law was the same as Scots law. In short, the choice was a stark one. The pursuer would be able to litigate her claim if the present action continued but she would now be unable to claim against the insurers in England.Discussion of the applicable law:
[13] Clearly this action is an unusual one and one which has scant connection with Scotland save that the current defenders are of Scottish domicile and that Norwich Union, who are said to be the correct defenders, also has, it was conceded, a Scottish domicile. In any event, service was accepted in Scotland, by a Norwich Union employee, on behalf of the defenders. However, limitation of connection with the country presently exercising jurisdiction is not, of itself, good reason for sustaining the plea of forum non conveniens. . The question of whether or not to uphold the plea is a matter for the discretion of the court . The principles applicable in Scotland when exercising that discretion are encapsulated in the convenient summary in the speech of Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd, at p. 476-8 which expressly draws on Scottish authorities. They are, in short, as follows:The last is also the stage at which questions of time bar may have to be considered if, for instance, there is another apparently more appropriate jurisdiction for the trial of the action in that the action has a clearly more real and substantial connection with it, but the limitation period has elapsed in that jurisdiction whilst the pursuer has, meanwhile, raised an action timeously in Scotland. Following the reasoning of Lord Goff, in such cases, practical justice should be done which may, if the pursuer has unreasonably allowed the limitation period to expire in the other jurisdiction, involve the plea of forum non conveniens being sustained even although that will mean that the pursuer's claim would, inevitably, be defeated by a plea of time bar in the other jurisdiction. If, on the other hand, the pursuer appears to have acted reasonably, the plea may not be sustained despite the availability of a more appropriate forum because that would not, in such circumstances, accord with the ends of justice. I note, however, that Lord Goff does not appear to have been optimistic regarding the chances of plaintiffs persuading the court that they have acted reasonably if the limitation period has expired in the other jurisdiction in respect that he was anticipating that, as time passed, it would be difficult for them to show that such failures were not the result of negligence. His approach would not, it seems, have been favoured by Lord Wellwood who, in the case of Low v Low 1893 1 SLT 43 where the defender pleaded forum non conveniens, determined that it would not be doing equal justice to parties to compel the pursuer to go to a court where his action must necessarily fail due to the operation of limitation and that he knew of no case in which jurisdiction had been declined where the result would be that the pursuer would be prevented from recovering his debt. There is, though, no hint of Lord Wellwood giving consideration to where the equities would lie if the pursuer's failure to sue in the other jurisdiction were the result of negligence nor, as can probably be inferred as having influenced Lord Goff's approach, if the pursuer would have an alternative remedy against his negligent adviser.
The facts and circumstances of the present case:
[14] As is so often the case when a discretion is vested in the court, each case turns very much on its own facts and circumstances. That is clear from the various authorities to which reference was made in the course of the debate. It does not seem possible to identify any single factor which will always be determinative. Take, for instance, the relevance of foreign law. The fact that foreign law will apply in the determination of the case may weigh heavily in favour of sustaining the plea but, depending on its complexities and the circumstances in which it arises in the particular case, it may not, as was commented by Lord Jauncey, in Credit Chimique. Ultimately, the question of whether there is a more real and substantial connection with the other jurisdiction so that it seems clearly more appropriate for the action to be tried there appears to be more a matter of impression and feel. Hence, no doubt, Lord Jauncey's acceptance of the relevance of the broad characterisation "weighty reasons" when trying to identify what it is that will lead to the sustaining of the plea. [15] In the present case, apart from the fact that the defenders are said to have (or at least have had) a place of business in Scotland, the action has no connection with this country. It does have more connection with England in respect that the pursuer lives there, the medical witnesses will probably all emanate from there and will find it less convenient if the case is tried in Scotland, and the pursuer's medical records and any documents required in support of her patrimonial claim will, equally, probably all emanate from there, not, so far as I can see, that that should pose any difficulties for the pursuer in recovery of these documents since they relate to her and should be capable of being released upon her mandate wherever the action is tried. But these are matters which all postdate the event that lies at the heart of the action and gives rise to the pursuer's claim. It occurred in Greece. The taxi driver who is blamed for the accident is, judging by his name, Greek. Greek law will apply to both the merits of the action and to questions of limitation, such as whether or not the five year period applies in her case rather than the two year one. These very significant connections with Greece appear, in my view, to be stronger than those with England and demonstrate that the English connections are, in reality, matters of convenience rather than substance. The various authorities to which I was referred stress the importance of recognising that the plea is not to be sustained purely on grounds of convenience. More is needed. More is not, however, in my opinion, present in this case. [16] I would add that I do not regard the fact that the pursuer previously raised an action in England as elevating the connecting factors beyond the level of mere convenience. The circumstances in which she did so but failed, in circumstances which seem to be less than edifying, to sustain the litigation would have required to be scrutinised had I been persuaded that this was a case where there was prima facie a real and substantial connection with England so as to make it appear that it was clearly more appropriate that the action be tried there. I would then have had to consider whether the interests of justice required that, notwithstanding that, the plea should not be sustained given that the pursuer would have no effective remedy, since the plea of time bar would be open to the defendants in any fresh action in England. Contrary to the submission for the pursuer, it seems to me, following Lord Goff's analysis, that in this matter, the onus would have been on the pursuer to show that the interests of justice demanded that the plea not be sustained despite England being clearly the more appropriate forum. It is not, however, necessary for me to consider the question since I am not satisfied that it is. Nor is it necessary for me to consider the question raised as whether or not I should approach matters on the basis that the pursuer would have had no answer to a plea of time bar in England or whether it would have been open to her to pray in aid an equitable discretion to allow the action to proceed though late. If , however, I had had to consider the time bar question, it seems to me that it would not have been appropriate in circumstances where the pursuer appears to have thrown away an earlier opportunity to sue the correct defender timeously, in England, to relieve her of the consequences of that failure by refusing to sustain the plea. I do not consider that the interests of justice would, in such circumstances, have required me to do so. [17] In these circumstances, I will repel the defenders' first and second pleas-in-law and allow a proof before answer.
