Stylianou v Toyoshima (1) Suncorp Insurance (2) (2013) EWHC 2188 (QB) is the latest in a line of cases addressing the thorny issue of the English court's jurisdiction over accidents abroad. The facts read like a conflict of laws exam question: an English Claimant was injured by a Japanese defendant whilst on Holiday in Australia. The Defendant was insured by an Australian insurer: Suncorp.
The peculiar twist in the tail lies in the fact that whilst the English lawyers grappled with the tricky question of which law would apply should proceedings be commenced in England, the Claimant instructed Australian lawyers to commence proceedings 'down under'. Indeed, by the time English proceedings were issued (1 day before the expiry of the 3 year limitation period) and the jurisdictional challenge came before the English High Court, the Australian proceedings were at an advanced stage. In fact, they had been running for some 2.5 years, offers had been made and a detailed schedule and counter-schedule served. The Defendant argued, perhaps with some justification, that this was an attempt at last-minute forum-shopping.
Sir Robert Nelson had little difficulty concluding that the Claimant could pass through the first jurisdictional ‘gateway’ in CPR PD 6B paragraph 3.1: the Claimant had suffered ‘damage’ within the jurisdiction since the vast majority of her consequential and ongoing loss would be incurred in England. The arguments with regard to forums non conveniens were perhaps more evenly balanced, but again the Court concluded that the most real and substantial connection was with England. The judge was particularly influenced by the fact that, due to her injuries, the Claimant would be unable to travel to Australia for trial, yet all of her (numerous) medical experts would have to be flown thousands of miles to give evidence in an Australian court, at very considerable cost. Pragmatically, the most convenient location was therefore England.
However, perhaps somewhat ironically, having concluded that the Claimant could pursue her claim in England, the judge went on to find that Western Australian law would nonetheless apply. This was because under Article 4(1) of EC Regulation 864/2007 (Rome II) the presumptive law was Australian, and the Court could not be satisfied that there were any sufficiently exceptional circumstances which justified holding that the tort was ‘manifestly more closely connected’ with English law pursuant to Article 4(3).
It is worth drawing a final comparison between Stylianou and one of the best known conflict of law cases of recent years: Harding v Wealands, which also involved a road traffic accident in Australia. In Harding, the effect of the old conflict of laws rules meant that the assessment of the Claimant’s damages was treated as purely procedural and therefore fell to be considered pursuant to the law of the forum. Stylianou is a fine example, therefore, of the seismic shift introduced by Rome II and the goal of harmonising private international law rules throughout Europe.