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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Accidents abroad - overviewJurisdiction in foreign accident claims
In everyday practice, an accident abroad will often have occurred during a package or travel contract which is regulated by the Package Travel, Package Holidays and Package Tours Regulations 1992 (the Package Travel Regs), SI 1992/3288. If the Package Travel Regs apply, the claimant will be entitled to a local remedy and the English courts will have jurisdiction.
Outside the Package Travel Regs, the question of jurisdiction is more complicated. There are four different jurisdictional regimes and which one applies depends on the states involved.
The first regime applies if the accident occurred in the EU but outside the UK. The basic rule is that a defendant is entitled to be sued in the state in which he is domiciled. However, an important exception in personal injury claims is that the claimant may also bring proceedings in the country where the harmful event, normally the accident, occurred. Two other situations where the English courts will have jurisdiction are when the defendant submits to the jurisdiction of the English courts by entering an appearance and failing to contest jurisdiction, or where there are multiple defendants and one of the other defendants is domiciled in England and Wales.
Where the first regime does not apply, there are three other possible regimes:
the modified regime that applies to the other parts of the UK, ie Scotland and Northern Ireland
the Brussels-Lugano Convention regime which applies to Norway, Iceland, Switzerland and Liechtenstein
the regime that applies to the rest of the world
Obviously, there are many parts of the world which fall within the last category. In such cases, the English courts will only have jurisdiction in specific circumstances. Some of the more common ways in which the English courts will assume jurisdiction include:
the claim is founded on tort and the damage was sustained in or resulted from an act committed in England or Wales
the defendant submits to the jurisdiction of the English court
the defendant is served within England and Wales and the court is satisfied that England is the most suitable forum
the court is satisfied that the case is a proper one in which to give permission for the service of proceedings out of the jurisdiction
Choice of law in foreign accident claims
The general rule for all personal injury claims where the cause of action date is after 1 May 1996 is that the law of the country where the accident occurred will apply. The applicable law of the country can only be displaced if it would be substantially more appropriate for another country's law to apply.
Note, however, that although the recoverable heads of damage are identified in accordance with the applicable law, the quantification of damages is normally regarded as a matter of procedure and so is governed by English law.
In situations where the cause of action is before 1 May 1996 the following rules will apply:
where the accident occurred in England and Wales - governed by the law of England and Wales
where the accident occurred overseas - governed by English law if the negligent action is actionable under both English law and the law of the foreign country (the dual actionability rule)
displacement of dual actionability rule - applies if a country has a significant relationship with the event and the parties
Package holiday claims
The Package Travel Regs give a claimant who can prove that he sustained an accident on a regulated package holiday the right to issue proceedings in the UK if he can show that:
the package holiday was sold or offered for sale in the UK
the package holiday included a combination of at least two out of (a) transport (b) accommodation and (c) an additional significant tourist service
the holiday was prearranged
the holiday was sold or offered for sale at an all inclusive price
the service included overnight accommodation or covered a period in excess of 24 hours
A claimant can be either the individual who purchases the package holiday, any person who has the package holiday purchased on their behalf or any person to whom the package holiday is transferred.
The defendant can be either the individual or the company that organised the holiday, the retailer of the holiday or another relevant party to the contract (e.g. the tour operator).
The Package Travel Regs impose a liability on a prospective defendant to perform their contractual obligations. The contract therefore needs to be examined carefully to prove that the claimant's injuries were caused by the defendant's failure to comply or because of improper performance.
The defence of contributory negligence is available. In addition, the defendant can escape liability if they can show that any failure to perform the contract was attributable to a third party for whom they are not responsible.
Road traffic accidents in the EU
A domiciled claimant who is injured in a road traffic accident which occurred in another European member state can issue proceedings against either the foreign third party insurer in an English court or against the defendant driver in the country where the accident occurred. The claimant must obtain details of the foreign third party's insurer's representative in the UK from the Motor Insurers' Information Centre and send this representative a letter of claim. If no response is received within three months the claimant has a right of action against the Motor Insurers' Bureau.
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