3 August 2021

Historic Industrial Disease Claims with a Connection to a Jurisdiction Outside of England and Wales

Jonathan Owen

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Jonathan Owen

The question this blog addresses is what to look out for, as “headline points”, in an industrial disease claim with a connection to a foreign jurisdiction: e.g. the alleged wrong was committed in a jurisdiction other than England and Wales, or the consequences, in terms of pain, suffering, and loss of amenity, and financial losses and loss of dependency, are felt outside of England and Wales.

The first question is whether or not there is jurisdiction for the Courts of England and Wales to hear the claim.

If the Defendant is “domiciled” (in the case of a company, its “seat” – meaning its registered office or some other official address, its central management or control, or a place of business – is located – section 42 of the Civil Jurisdiction and Judgments Act 1982 – “the 1982 Act”) in England and Wales, then the Defendant can be sued in England and Wales.

For Defendants domiciled in Scotland or Northern Ireland, the question of whether they can be sued in England and Wales is governed by Schedule 4 of the 1982 Act (“Schedule 4”). The full text of Schedule 4 needs to be considered. However, the basic rule (rule 2) is that a Defendant must be sued in the jurisdiction in which it is domiciled, and, a person domiciled in one part of the United Kingdom may only be sued in the Courts of another part of the United Kingdom pursuant to the provisions of rules 3 – 13 of Schedule 4. Most importantly, in matters relating to tort (or delict in Scotland), a person domiciled in one part of the United Kingdom may be sued in another part of the United Kingdom if it is the place where the harmful event occurred (rule 3(c)). Accordingly, a company which has its domicile in Scotland can be sued in England and Wales if the harmful exposure took place in England and Wales. The provisions of Rule 6.32 of the Civil Procedure Rules 1998 (“the CPR”) must be observed if the proceedings are to be served in Scotland or Northern Ireland without permission of the Court.

If the Defendant is domiciled outside of the United Kingdom, the provisions of Section IV of CPR Part 6 (“Section IV”) need to be observed. Again, the full text of Section IV needs to be considered. However, in most cases, the case has to be brought within paragraph 3.1 of CPR Practice Direction 6B. This permits, amongst other matters, tort claims to be brought in England and Wales against a Defendant domiciled outside of the United Kingdom if damage was sustained, or will be sustained, within the jurisdiction or damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction (see paragraph 3.1(9) of CPR Practice Direction 6B). If there is a jurisdictional gateway the Court will still have to consider whether or not England and Wales is the proper place to bring the claim (which is required for permission to be granted – CPR Rule 6.37(3)). This brings into issue whether or not England and Wales is the appropriate forum (“forum conveniens”). The fundamental question in that regard is whether England and Wales is the forum which could most suitably try the case for the interests of all of the parties and the interests of justice: “The Spiliada” [1987] 1 AC 400 (HL).

If jurisdiction to sue in England and Wales is not properly satisfied, then a Defendant who wishes to challenge jurisdiction must follow the CPR Part 11 procedure to dispute jurisdiction. Rule 11 has, in the author’s view, a complexity and difficulty which would not easily be guessed from its brevity alone. Most importantly, there are requirements (a) to file an Acknowledgement of Service (“AOS”) (indicating an intention to dispute jurisdiction) and (b) to observe the strict time limit to apply, within 14 days of filing the AOS, under the CPR Part 23 procedure, to dispute jurisdiction. There are many reported cases where failure to make the necessary application has resulted in the ability to challenge jurisdiction being lost.

If a proper jurisdictional gateway to sue in England and Wales exists, the next question is what law applies.

This question is partly a chronological one.

If the acts or omissions out of which the claim arose occurred before 1 May 1996 (the commencement date of Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”), then the old common law rules apply (see Section 14 of the 1995 Act and paragraph 2 of the Private International Law (Miscellaneous) Provisions Act (Commencement) Order 1996).

If the acts or omissions out of which the claim arose occurred between 1 May 1996 and 10 January 2009 (the day before the date of application of Regulation (EC) No 864 / 2007 on the law applicable to non-contractual obligations - “the Rome II Regulation”), the 1995 Act applies.

If the events giving rise to damage occurred from 11 January 2009, the Rome II Regulation applies. Notwithstanding the United Kingdom exiting the European Union, Rome II, with largely immaterial textual amendments, continues to apply pursuant to Regulation 11 of the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019.

At common law, the first question was to ascertain where the tort was committed: “look back over the series of events … and ask the question, where in substance did this cause of action arise?” (Distillers Co v Thompson [1971] 1 AC 458 (PC), at p. 468). The Court specifically rejected that this necessarily need be taken to be the place where the damage was suffered (see p. 467).

In the case of exposure to a harmful substance, this will probably be the place where the alleged exposure occurred. See, e.g., the decision of the Court of Session, Inner House in Docherty’s Executors v Secretary of State for Business, Innovation and Skills [2018] CISH 57 where it was held, in the case of a man who inhaled asbestos in a Scottish shipyard but went on to move to England and Wales and die there, that the tort in substance arose in Scotland.

The Court then applies the rule of “double actionability”. Pursuant to the rule in Boys v Chaplin [1971] AC 356 the Claimant has to prove that both under the law of the place where the tort was committed and the law of England and Wales, the Defendant is liable unless the Court concludes that either (i) the law of the other jurisdiction or (ii) the law of England and Wales should alone govern the whole case or any particular issue because the tort has the closest connection to that jurisdiction and there are “clear and satisfying grounds” to depart from the rule of double actionability (Boys at p. 391 per Lord Wilberforce, or Lord Bingham MR in Durham v. T&N PLC 1 May 1996, Court of Appeal).

As to quantum:

(a) If the Court determines above that only the law of the other jurisdiction applies, then pursuant to Harding v Wealands [2006] UKHL 32 and Cox v. Ergo Versicherung AG [2014] UKSC 22:-
(i) The question of what heads of loss are recoverable is a matter for the law of the other jurisdiction.
(ii) If a head of loss is recoverable, it will then be quantified according to the law of England and Wales: Hulse v Chambers [2001] 1 WLR 2386.
(b) If the rule of double actionability applies then the contents of the paragraph immediately above are modified as follows:
(i) For a head of loss to be recovered it must be recoverable both as a matter of the law of the other jurisdiction and the law of England and Wales.
(ii) If a head of loss is recoverable, it will then be quantified according to the law of England and Wales: Hulse v Chambers [2001] 1 WLR 2386.

Under the 1995 Act, under Section 11 the general rule is that the applicable law is the law of the country in which the events constituting the tort occurred. In the case of personal injury (which includes disease – sub-section (3)), this is, by sub-section (2), taken to be the law of the country where the Claimant was when he or she sustained the injury.

It is open to either party, however, to seek to displace the general rule (on all, or only some, issues in the case). By Section 12:-

“Choice of applicable law: displacement of general rule.
(1)If it appears, in all the circumstances, from a comparison of—
(a)the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and
(b)the significance of any factors connecting the tort or delict with another country,
that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.
(2)The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events”.

The law(s) identified by the 1995 Act will govern liability and whether compensatable injury, loss and damage has been suffered. If so, damages will be quantified according to the law of England and Wales. Per Harding v Wealands [2006] 3 WLR 83 the law of the forum (in which the action is being pursued – here England and Wales) applies to the quantification of damages.

Under Rome II, under Article 4, the general rule is that the applicable law “shall be the law of the country in which the damage occurs, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country of countries in which the indirect consequences of that event occur”.

There are 2 limited exceptions:-

(a) Article 4(2): where both the injured party and the alleged tortfeasor both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
(b) Article 4(3): “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 pre-existing relationship between the parties, such as a contract, that is closely connected with the tort / delict in question”.

Under Rome II quantification of damages is more complicated because the law identified in Article 4 applies not just to liability, but includes tariffs, guidelines and formulae used for assessing quantum (e.g. guidelines for assessing non-pecuniary loss): see Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138.

Whatever the governing regime, if a party contends that law from a different jurisdiction provides for something else, that must be pleaded. The burden of proof to show foreign law is upon the party who asserts that it applies or says something else. If it is not proven to be different from the law of England and Wales, the law of England and Wales is applied.

The reality is that any excursion into this complicated topic raises as many questions as it does answers. The one thing that is clear is that the issues are important and need to be grappled with early. They need to be grappled with early because of the importance of establishing and, in the case of the Defendant, challenging, jurisdiction, and because, if different law is in play, it will need to be pleaded and proven, and permission will be needed for expert evidence on this issue. These are matters which need to be addressed before the case is pleaded and case managed. It needs to be addressed at the start, and not just the end.

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Jonathan Owen

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Ropewalk Chambers

Ropewalk Chambers has, over many decades, established a market-leading reputation for detailed and specialist expertise in the field of Industrial Disease litigation.

Whether asbestos, noise, dust, vibration, stress or any other insidious process, including those which are newly emerging, its members have consistently appeared in the leading cases, determining the limits of liability, causation and quantum at first instance and appellate level.

Work is distributed within Chambers to enable Members of Chambers to represent both Claimants and Defendants in this field.

To find out more about our Disease barristers, click here.

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