In Jamieson v Wurttemburgische Versicherung AG and another, Master Davison gave an interesting judgment refusing to lift a stay in these proceedings, which had been issued by the claimant against the respective defendants: the insurer of a taxi; and his employer. These proceedings had been stayed by consent pending the outcome of a claim issued in Germany by the insurer seeking a declaration that it was not liable for the claimant’s accident. Instead, Master Davison made a request under Article 29(2) of the Recast Brussels Regulation (1215/2012) asking the German court to confirm the date of filing at court of the insurer’s claim.
Mr Jamieson was employed by the second defendant as a commodities broker. In September 2016, when aged 44, Mr Jamieson was injured in a road traffic accident in Munich. Mr Jamieson had gone to Germany and was attending the Oktoberfest with clients, whom he was entertaining. He was walking back to his Munich hotel when he was hit by a taxi. He suffered severe physical injuries as well as a serious brain injury.
The taxi was insured by the first defendant, against whom Mr Jamieson had a direct claim. The precise circumstances of the collision were in dispute. In April 2017, Mr Jamieson’s lawyers initiated pre-action correspondence with the first defendant insurer. His lawyers specifically asked the insurer not to issue proceedings in Germany seeking a negative declaration of liability. Notably, the insurer’s lawyers never provided that requested written assurance. Just the same pre-action correspondence continued into 2018 in tandem with negotiations.
It was only in April 2018 that the insurer’s lawyers confirmed that its client had issued a claim in Germany for a negative declaration of liability. So completely contrary to what Mr Jamieson’s lawyers had sought assurance from them not to do. Upon this information becoming known, Mr Jamieson’s lawyers issued his claim in this jurisdiction. But the defendants opposed the English court’s jurisdiction. So the parties agreed to stay the English claim pending resolution of the German proceedings. In effect, the insurer had got in first in Germany.
It was hoped that during the agreed stay, the German court would quickly determine in which jurisdiction the claim was to be heard and when it first received the insurer’s claim. But far from it. The German case became protracted and there was a real chance that those proceedings might not conclude for a number of years. So hence why the claimant understandably applied to lift the stay in these proceedings to expedite his claim.
Master Davison emphasised his sympathy for Mr Jamieson’s position. The Master squarely put this down to the insurer’s lack of transparency and criticised its attempt to advantage itself to Mr Jamieson’s obvious disadvantage by him not being able advance his claim in the jurisdiction where he lived. This was wholly at odds with the framework of the Recast Brussels Regulation, which provided Mr Jamieson with the choice of advancing his claim in England or Germany. Basically, the insurer had taken that option from him because the English court had to stay his claim so the German proceedings could conclude.
The Master acknowledged that the jurisdiction deciding Mr Jamieson’s case had obvious significance to him. Given the extent of Mr Jamieson’s physical and neurological injuries, litigating and attending hearings in Germany would pose him many problems compared to being able to deal with matters in England.
Master Davison highlighted Mr Jamieson’s problem with funding and that his legal expenses insurance was close to or had already run out. Whereas top-up funding could be obtained in England through Mr Jamieson entering into a conditional fee agreement, there was no comparable funding arrangement on offer in Germany.
The Master made the comparison of the insurer not nearly being as disadvantaged litigating in England. Liability could be tried as a preliminary issue in England and indeed quickly, and German law would apply.
Master Davison found that the orders of the German courts did not helpfully state when the insurer’s claim was filed. However, Article 29(2) of the Recast Brussels Regulation rectified this by allowing the High Court to request the German court to state when it was seised. Master Davison made clear that the court would not decide the question of seisin itself although he distinguished other cases when the court had done so but those cases comprised different facts and nor were they Article 29 cases. Master Davison concluded that the Article 29 statutory mechanism must be observed and not circumvented by the English court, because if it did then it would be deciding the issue of seisin. Master Davison qualified this by indicating that even if the English court could determine seisin, it should be circumspect in doing so because in this case the issue of seisin was currently before a German court, which could easily determine facts about the filing of the insurer’s claim.
Master Davison also addressed Mr Jamieson’s assertion that the insurer’s claim amounted to abusive conduct. Again, Master Davison held that this was also for the determination of the German court. He found that the principle of comity would be broken if the English court assumed jurisdiction on the basis of an abuse of EU law in a German claim more so when such conduct was also before the German court for adjudication.
In summary, Master Davison alluded to the insurer’s unreasonable, non-transparent and unfair conduct and even though Mr Jamieson’s application was to be refused, the court would make a request under Article 29(2) to the German court for it to inform the court, without delay, of the date when it was seised or deemed seised of the insurer’s claim.
Practical implications for practitioners
In the light of the insurer’s lawyers’ failure to answer simple questions about the filing of the insurer’s claim and give assurances that no claim would be filed, in such similar circumstances practitioners should consider what appropriate steps, including court intervention, should be taken to protect a client’s position.