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Kershaw v (1) Carey (2) Banco Vitalicio de Espana [2011] September. HHJ Armitage QC (Manchester CC)
This claim was brought by the Claimant in the Manchester County Court. It arose out of a rather unusual road traffic accident in Puerto Banus. The Claimant and the First Defendant were both British nationals and were domiciled in England/Wales. The Claimant was a retired lady. The First Defendant was the daughter of the Claimant’s friend. The Claimant and the First Defendant were, together with the Claimant’s friend, on holiday in Spain. On 15 May 2007 the ladies were about to take a journey by hire care. The First Defendant was driving and her mother occupied the front passenger seat. The engine of the vehicle was running and the Claimant’s case was that she attempted to get into the rear passenger side of the vehicle. As she did so, and at a time when her feet were still on the kerb, the vehicle moved off. The Claimant suffered injury as a result. The vehicle had been hired locally by the First Defendant (at Malaga airport). The Second Defendant, a Company incorporated in Spain, was the insurer of the hire vehicle and of the First Defendant. The Claimant brought proceedings against both Defendants in the English Court. The First Defendant was English domiciled and, therefore, liable to be sued in the Courts of her domicile in accordance with article 2(1) of EU Council Regulation 44/2001 (“the Judgments Regulation”). The Claimant had, as a matter of Spanish law, a direct right of action against the Second Defendant and this entity could, therefore, be sued in the English Courts in accordance with section 3 of the Judgments Regulation (as interpreted by the European Court of Justice in Odenbreit (2007) Case C-463/06). The Claimant sued both Defendants out of an excess of caution; she was keen to ensure that both parties were locked in to the English litigation. However, there was no need for her to do so because the insurer stood behind the driver and had confirmed cover. In the circumstances, the Claimant could have chosen to sue only the driver (who was liable to be sued in England) or the insurer alone (which was liable to be sued direct im England as a result of the Odenbreit decision). The joinder of both Defendants gave rise to an interesting conundrum. While both Defendants had submitted to the jurisdiction of the English Court (by entering a Defence), the Claimant was dependent on Spanish law in order to pursue her claim against the insurer (for accidents outside the UK there is no right to sue the insurer direct as a matter of English law). The problem was that the Claimant had issued her proceedings in time according to English law, but out of time according to Spanish law. In the circumstances, the Claimant found herself in the uncomfortable position of having to rely on Spanish law in order to provide her with the jurisdictional right to sue the Second Defendant insurer, but then having to rely on English law in order for her claim to avoid a limitation defence. A preliminary issue trial was fought on, “The issue of applicable law and the issue of limitation ... .” The Claimant’s position was that the application of section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 ought to result in the displacement of the presumption contained in section 11 of the same Act that the law of Spain (the place where the tort occurred) should apply. The Claimant argued that the factors connecting the tort to England, rather than Spain made it “substantially more appropriate” to apply English law. The Defendants disagreed. It was argued on their behalf that the Claimant needed Spanish law in order to have a jurisdictional right to sue the Spanish insurer in the English Courts and that it was, therefore, illogical for English law to be applied to the issue of limitation. The Defendants’ position was that Spanish law applied and, therefore, the claim was statute barred. The Judge found for the Claimant and it was held that the applicable law was English law. Accordingly, the claim was not time barred:
“... if this had been a UK registered car, driven in Spain under an insurance provided by a UK insurer (or for that matter an insurer in any country other than Spain) the balance in favour of displacement of Spanish by English law would have been overwhelming. The primary Defendants would have expected to be able to litigate in England and be subject in their relationships to the limitation law of England. The only substantial connection between this case and the law of Spain is the insurer. But for the advantage of limitation I doubt whether this argument would have been made for the second defendant. That is not a criticism. It merely serves to underline the fairly tenuous connection this accident has with Spain. It is merely the domicile of a secondary party. My judgment is that there is sufficient to displace the general rule. The factors connecting the case to English law are significantly greater than those connecting it with the law of Spain and make it substantially more appropriate to apply English law.”    
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