James Fox v Steve Fellows Road Haulage Services Limited & Ors

CPR 6.36 provides that a claimant may serve a claim form out of the jurisdiction with the permission of the Court if any of the grounds set out in para 3.1 of PD 6B apply. These grounds are usually referred to as the jurisdictional gateways.

In the present case, the Claimant relies upon the Anchor Defendant Gateway at para 3.1(3), which applies where:

For present purposes, D1 is the anchor defendant and it is accepted that D2 is a necessary party and D3 a proper party to the claim.

The Claimant further or alternatively relies upon the Tort Gateway at para 3.1(9), which applies when:

It is accepted that a significant part of the Claimant’s damage was sustained within this jurisdiction.

D1 relies upon the Necessary or Proper Party Gateway at para 3.1(4), which applies where:

It is accepted that D2 and D3 are necessary or proper parties, at least to the main claim.

As material, CPR 6.37 states:

It is accepted that the requirements in CPR 6.37(1) and (2) are satisfied in this instance. The question of the proper place to bring the Claimant’s claim and the Part 20 claim are very much in issue.

As identified by Lord Collins of Mapesbury JSC in Altimo Holdings v Kyrgyz Mobil Tel Limited [2011] UKPC 7, [2012] 1 WLR 1804 (“Altimo”) at para 71, to obtain permission to serve a defendant outside of the jurisdiction, the burden is on the claimant to satisfy the Court that:

The question of whether there is a serious issue to be tried involves the test that is applied to applications for summary judgment. The principles were summarised by O’Farrell J at para 40 in Município de Mariana v BHP Group (UK) Limited & Ors [2023] EWHC 2030 (TCC) (“Mariana”) as follows:

I was also referred to para 6.37.15 of the White Book, where the editors observe that it is important to have in mind “that the test is not high one. An issue which is imaginary or fanciful is not a serious issue to be tried; a claimant has a real prospect of success if its chances of success are not fanciful”. The same paragraph cites para 22 of Lord Hamblen’s judgment in Okpabi v Royal Dutch Shell Plc [2021] UKSC 3, [2021] 1 WLR 1294 for the proposition that the Court will generally analyse whether there is a reasonable prospect of success on the assumption that the facts alleged in the Particulars of Claim are true, unless they are “demonstrably untrue or unsupportable”.

In Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45, [2022] AC 995 (“Brownlie”), the Supreme Court reaffirmed the presumption of similarity and identified the circumstances in which it applied. The leading judgment on this issue was given by Lord Leggatt (with whom the other Justices agreed). Lord Leggatt noted that, historically, the rule had been expressed as a presumption that applies where foreign law is recognised to be applicable, but the content of the foreign law has not been provided; in the absence of evidence to the contrary, the foreign law is presumed to be the same as English law (paras 108 and 119). Lord Leggatt emphasised that the presumption did not apply where there was good reason to think that the applicable foreign law was different in a material respect form English law (para 122). The requirement of materiality meant that unless there was a real likelihood that any differences between the applicable foreign law and English law on a particular issue would lead to a different outcome, there was no good reason to put a party to the trouble and expense of adducing evidence of foreign law (paras 124 and 126). Where the presumption applied, it did not alter the burden of proof, but it placed the burden of adducing evidence on a party who wished to displace it (para 125). There was no warrant for applying the presumption unless it was a fair and reasonable assumption to make in the particular case (para 126).

Under the heading “General guidance” Lord Leggatt indicated that the presumption was more likely to be appropriate where the applicable law system was another common law system (para 144) and it was less likely to be appropriate where the relevant domestic law was contained in a statute, although this would depend upon the nature of the statute and the statutory provision (para 145). It was always open to the party who asserted that a claim or defence was based on foreign law to adduce direct evidence of the content of the relevant foreign law rather than taking the risk of relying on the presumption; and it was always open to the other party to adduce evidence showing that the foreign law was materially different from the corresponding English law, rather than taking the risk that the presumption would be applied (para 146). There was more scope for relying on the presumption at an early stage of the proceedings when all that a party needed to show was that the claim or defence had a real prospect of success (para 147).

In Brownlie, both parties had served reports from experts on Egyptian law and the question was whether the presumption could be applied when there were gaps or shortcomings in the expert evidence, as opposed to no expert evidence at all regarding the foreign law in question. Lord Leggatt held there was no principled reason why reliance on the presumption of similarity should be precluded in such circumstances (para 151); although there could be cases where it would be unfair to allow a party who had adduced evidence of foreign law in support of their case, to invoke the presumption when that evidence proved inadequate (para 152).

The correct approach to determining the appropriate forum has been addressed in a number of appellate authorities, including Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (“The Spiliada”) and Lungowe & Ors.v Vedanta Resources plc and another [2019] UKSC 20, [2020] AC 1045 (“Vedanta”). The position was summarised by Popplewell LJ in Limbu & Ors. v Dyson Technology Ltd & Ors. [2024] EWCA Civ 1564, [2025] 2 All ER (Comm) (“Limbu”) as follows:

At para 33 of Limbu, Popplewell LJ described the exercise the Court is engaged in as one of identifying “where the case can most suitably be tried in the interests of the parties and for the ends of justice” (emphasis in the original). In the same paragraph he cited Lord Briggs JSC’s reference in Vedanta to the Court looking for a single jurisdiction in which the claims against all defendants may most suitably be tried.

Lord Briggs had addressed the position where multiple defendants were domiciled in different jurisdictions in Vedanta, as follows:

In Vedanta, the claimants, who were Zambian citizens living in Zambia, brought claims in negligence against the defendants, a United Kingdom company and its Zambian subsidiary, in relation to injuries and damage allegedly caused by pollution from a Zambian copper mine owned and operated by the subsidiary company. The claimants sued the parent company in this jurisdiction and then sought permission to serve the subsidiary company out of the jurisdiction. The parent company offered to submit to the jurisdiction of the Zambian courts to enable the case to be tried there. The Supreme Court held that in light of this, the claimants had failed to demonstrate that England was the appropriate place in which to bring their claims, given they had the choice of suing both defendants in Zambia and thus avoiding the risk of irreconcilable judgments. Lord Briggs held that Leggatt J (as he then was) had been wrong to hold in OJSC VTB Bank v Parline Ltd that because a claimant had a right to sue the anchor defendant in England, there was no reason why they should be expected or required to relinquish that right in order to avoid duplication of proceedings. Lord Briggs said there was “good reason why the claimants in the present case should have to make that choice, always assuming that substantial justice is available in Zambia” (para 79). The choice the claimants had as to whether to sue the parent company in this jurisdiction did not mean that the risk of irreconcilable judgments “is thereby altogether removed as a relevant factor. But it does in my view mean that it ceases to be a trump card” (paras 82 - 84).

Samsung Electronics Co Ltd & Ors v LG Display Co Ltd and another [2022] EWCA Civ 423, [2023] 1 All ER (“Samsung”) addressed appropriate forum in the context of a Part 20 claim for a contribution. Males LJ endorsed the view of the judge below that “if the underlying claim is proceeding here, either because there are English defendants or because England is the natural forum for the claim, that will be a powerful tool and sometimes an overwhelming factor in favour of hearing the contribution claim here” (para 29).

Ms McTague placed reliance upon the editors’ recognition in para 6.37.20 of the White Book that there is “no inflexible rule”. In context, the relevant passage states:

Ms McTague also cited passages from Morgan J’s judgment in Satfinance Investment Limited v Athena Art Finance Corp [2020] EWHC 3527 (Ch) (“Satfinance”), in particular his reference at para 40 to the “prospect of proceedings having to take place in more than one jurisdiction will never be enough, in and of itself, to justify the joinder of a foreign defendant”. I do not consider this assists her argument.

In Satfinance, the claimant asserted ownership of a valuable painting, claiming it had acquired the rights to it under an agreement with the first and second defendants. The fourth defendant (Athena), who was based in the United States, asserted an entitlement to the painting pursuant to arrangements made with the third defendant. The claimant was given permission to serve Athena out of the jurisdiction pursuant to the Anchor Defendant Gateway, on the basis that the first and second defendants were anchor defendants, there was a real issue which it was reasonable for the English court to try and Athena was a necessary or proper party to the claimant’s claim against the anchor defendants. The Chief Master granted Athena’s application to set aside this order, on the basis that the Anchor Defendant Gateway was not established, as the first and second defendants were not going to defend the claims against them and, in consequence, there was no real issue between the claimant and those defendants, which it was reasonable for the Court to try.

At para 40 of his judgment, Morgan J cited the principles relating to the Anchor Defendant Gateway, as identified by Andrews J (as she then was) in Gunn v Diaz [2017] 2 All ER (Comm) 129 at para 86. The passage Ms McTague relies upon appeared in sub-para (ii) of Andrews J’s list of nine applicable principles. Accordingly, this observation related to the requirements for establishing the Anchor Defendant Gateway, rather than the determination of appropriate forum (after a jurisdictional gateway has been made out). Furthermore, self-evidently the prospect of proceedings having to take place in more than one jurisdiction is plainly insufficient in itself to bring a claim within this gateway, given the text of PD 6B para 1.3(3) and the requirements identified in the related caselaw.

Morgan J held the claimant had established that the claim came within the Anchor Defendant Gateway on the limited basis that even in the likely event that the first and second defendants did not defend the claim, the claimant would seek a declaration as to ownership from the Court which it was reasonable for the English Court to try (paras 89 – 94). The Judge then considered the appropriate form for the claim. Ms McTague relied on a passage in para 115 where Morgan J said that insofar as the claimant relied upon the prospect of two sets of proceedings that might produce inconsistent judgments “it must still be remembered that the court should be cautious about bringing Athena to this jurisdiction to deal with...[the claim] here on the ground that the alternative to doing so is that there will be two actions in two jurisdictions”. However it is clear from Morgan J’s judgment that this observation was made in the particular context of that case, where the claimant had brought the case within the Anchor Defendant Gateway on a narrow basis (para 105); where it was much more probable than not that the anchor defendants would not themselves defend the claim (para 109); where the dispute between the claimant and Athena was much more significant than the issues between the claimant and the defendants in this jurisdiction (para 111); and, overall, the arguments in favour of New York as the appropriate forum were “appreciably stronger” than the argument in favour of London (para 117).

The place of commission is a relevant starting point when considering the appropriate forum for a tort claim: per Lord Mance JSB in VTB Capital plc v Nutritek International Corpn [2013] UKSC 5, [2013] 2 AC 337 (“VTB Capital”) at para 51. Lord Mance said that “viewed by itself and in isolation, the place of commission will normally establish a prima facie basis for treating that place as the appropriate jurisdiction”. However, he went on to observe that in the context of an international transaction “it was likely to be over-simplistic” to view the place of commission in isolation when considering the appropriate form for resolving the dispute; and he acknowledged that the “significance attaching to the place of commission may be dwarfed by other countervailing factors”.

At para 46 of VTB Capital, Lord Mance indicated that it was “generally preferable, other things being equal, that a case should be tried in the country whose law applies”. He said this factor was of particular force if the issues of law were likely to be important and if there was evidence of relevant differences in the legal principle or rules applicable to such issues in the two countries in contention as the appropriate forum.

Whilst the practical issues can feature large in the exercise of the discretion, the discretion is not limited to a consideration of this aspect: per Lord Lloyd-Jones in Brownlie at para 78. In this context, he cited the passage at 474E-G of Lord Goff’s speech in The Spiliada, where his Lordship pointed out that use of the Latin tag forum non conveniens should not mislead us “into thinking that the question at issue is one of ‘mere practical convenience’”. Lord Lloyd-Jones emphasised that Lord Goff went on to conclude at 480G that the ultimate objective was “to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice”. Lord Lloyd-Jones also observed that the test for identifying the appropriate forum was an effective mechanism which could be trusted to prevent the acceptance of jurisdiction “in situations where there is merely a casual or adventitious link between the claim and England” (para 79).

In The Spiliada, Lord Goff addressed the significance to be attached to the claimant having some advantage if the proceedings took place in England. He considered a Court should not be deterred from exercising its discretion to refuse permission to serve out simply because the claimant would be deprived of such an advantage, provided the Court is satisfied that substantial justice will be done in the available appropriate forum (482F). However, he went on to say that practical justice demanded that if the Court considered the claimant had acted reasonably in commencing proceedings in this country and did not act unreasonably in in failing to commence proceedings in the other jurisdiction within the limitation period applicable there, it would not be just to deprive the claimant of the benefit of having started proceedings within the limitation period applicable in this country, although it otherwise appeared that the appropriate forum was elsewhere than England (483H – 484A).

The application for permission must satisfy the Court that in all the circumstances it ought to exercise its discretion to permit service of the proceeding out of the jurisdiction (para 62 above). This discretion exists independently of and is not exhausted by the application of the forum conveniens principle, but as the editors of the White Book observe at para 6.37.22, cases that will “turn on the correct exercise of the general discretion alone are likely to be rare”.

Ms McTague accepted that Article 1902 of the Spanish Civil Code imposed a fault-based duty on D2 in relation to the safety of those using his warehouse. She also accepted that, generally speaking, the Court should approach the question of whether there was a serious issue to be tried by reference to the facts that were pleaded in the Particulars of Claim (para 64 above) and that it was not appropriate for the Court to conduct a mini-trial at this stage.

However, she argued that the Claimant had failed to show there was a serious issue to be tried against D2 or, in turn, D3 as contributory negligence could constitute a full defence under Spanish law and the evidence before the Court at this stage showed there was no real prospect of the Claimant establishing fault on the part of D2 in relation to his accident. In this regard she relied upon para 23 of Pearson 1, which I have set out at para 22 above.

I reject these arguments. No basis has been shown for going behind the pleaded allegations in the Particulars of Claim at this stage. The Claimant’s pleading sets out a clearly articulated case of fault on the part of D2 (para 16 above) which, on the information before me, is capable of constituting a breach of the duty imposed by Article 1902. The reliance on contributory negligence does not avail D2 and D3 at this juncture. It is impossible for me to form a view at this preliminary stage on whether and, if so, to what extent, the accident was caused by the Claimant’s contributory negligence. I have not heard evidence from any witnesses and I have not been provided with the CCTV that Ms Pearson refers to or any of the documents relating to liability. The evaluation of the evidence is a matter for the trial judge. Furthermore, even if there was some contributory negligence on the part of the Claimant, Ms Pearson can only refer to the possibility that this would be assessed at such a level as to provide D2 with a complete defence to the claim.

Accordingly, I am satisfied that the Claimant has established that there is a serious issue to be tried in relation to the merits of his claim against D2 based on Article 1902 of the Spanish Civil Code. It follows that there is also a serious issue to be tried against D3, whose liability is parasitic upon the liability of D2; Ms McTague confirmed that no free-standing issue was raised in respect of D3 for these purposes.

In light of this conclusion, it is unnecessary for me to form a view on the other basis upon which D2’s liability is pleaded and I do not do so. I simply observe that having read the decisions of the Spanish Supreme Court that are referred to in Huxford 3 (para 50 above) and exhibited to it, it appears they are concerned with the extent of the jurisdiction of the Spanish employment courts when a claim relating to a workplace accident is brought against both the claimant’s employer and a third party and specifically whether the claim against the third party can be heard with the claim against the employer in the employment courts or has to be heard separately in the civil courts. In this context, the Spanish Supreme Court has held that in certain circumstances the claims should be considered as a whole with the employment courts having jurisdiction to hear the entirety of the claim. Thus, the decisions appear to be solely concerned with the question of jurisdiction and, moreover, it is difficult to see how this caselaw has a bearing on the present case where, on any view, the claim against the Claimant’s employer (D1) will be heard in England and not in the Spanish employment courts.

As the parties accept, the relevant factors in this case do not all point in the same direction. I will consider each of these factors, beginning with those that are said to point in favour of the claims against D2 and D3 being heard in Spain.

I begin by reminding myself that the accident occurred in Spain. The warehouse premises were insured by a policy issued in Spain and which is subject to Spanish law. The immediate damage to the Claimant’s leg was sustained in Spain. As I have explained, this is a relevant starting point when considering the appropriate forum for a tort claim, although the significance of this factor may be outweighed by countervailing factors (para 78 above). Ms Prager KC emphasised the availability of CCTV footage of the accident, suggesting that in these circumstances, the facts of what occurred in Spain were unlikely to be the subject of significant dispute. I consider that is a rather optimistic view. At paras 108 - 109 below, I highlight some of the areas of dispute that go beyond the sequence of events involving the accident. Ms Kinsler KC indicated it was likely that D1 would want D2 to give evidence at the trial of the Claimant’s claim against D1 and this seems to me to be a likely scenario.

As the Claimant accepts, Spanish law applies to the determination of liability and quantum in relation to his claims against D2 and D3. I recognise that it is generally preferable for a case to be tried in the country whose law applies (para 79 applies). However, as Ms Prager KC pointed out, Lord Mance’s observation included the important caveat, “other things being equal”. She submits that other things are not equal in this case; and, for reasons I will come on to, I agree. Furthermore, for the reasons I indicate in the next two paragraphs, D2 and D3 overstate the importance of this factor in this particular case.

Ms McTague submitted that this factor was of particular significance as there were material differences in the applicable legal principles between English and Spanish law. Whilst the pleaded Spanish law provisions regarding duties upon employers will constitute a material difference from English law if they do have the reach that Huxford 3 suggests (para 50 above), I have already noted that the caselaw provided does not appear to support that proposition (para 87 above). Accordingly, I do not attach significant weight to this particular aspect of alleged difference. For present purposes, emphasis was placed on Article 1902, which appears to give rise to a fault based liability that is not dissimilar to the domestic law position in the law of negligence. Ms Pearson indicates that under Spanish law, contributory negligence may extinguish a claim (para 24 above), but it is put no higher than this being a possibility in the present case; a finding of a high degree of contributory negligence, if warranted on the facts (upon which I have formed no view), can be made in both jurisdictions. Compensation is assessed on restitutio in integrum principles in both jurisdictions (para 52 above). The potential difference regarding the calculation of interest is of limited weight in this overall evaluation.

Ms McTague submitted that a trial in this jurisdiction involving an English law claim against D1 and a Spanish law claim against D2 and D3, with (potentially competing) expert evidence as to the position under Spanish law, was an unwieldly and thus undesirable prospect; and this was all the more so, as the trial would also involve evidence from a raft of medico-legal experts. Whilst I acknowledge that such a trial would involve some complexity and multiple issues to be resolved, I do not consider it would present undue difficulties for a High Court Judge, experienced in conducting substantial personal injury litigation. As Ms McTague accepted, the Court is well-used to hearing such cases, including those involving evidence as to Spanish or other foreign law. It will be a case-management decision for further down the line as to whether a split trial of liability and quantum should be directed.

I take account of the fact that D2 is a Spanish individual who resides in Spain and that D3 is a Spanish insurer, domiciled in Spain. Ms McTague also said that the funding available to D2 under his insurance policy is limited to €90,000, so that he does not have limitless funds to engage in litigation in another jurisdiction. I accept that weight should be accorded to D2 and D3’s interest in having the claim heard in their own jurisdiction.

However, countervailing points of at least similar weight exist. The Claimant and D1 are resident and domiciled in England. The Claimant, like D2, is an individual. D3 is part of the multi-national group of AXA insurance companies. The Claimant’s claim against D1 can only be heard in this jurisdiction, so that if the D2/D3 Application succeeds, he would have to bring two sets of proceedings, one in England and one in Spain, arising out of the same accident. Furthermore, the Claimant would not have the benefit of a conditional fee agreement if he had to litigate against D2 and D3 in Spain. Although the Claimant’s injury was sustained in Spain, the amputation of his leg occurred after he had returned to England and the majority of the damages he claims relate to losses he has suffered and continues to suffer in England, including accommodation costs, care costs, medical costs and earnings-related losses.

This aspect is linked to the previous factor I have considered. Again, there are elements that tend in favour of both the Claimant’s and D2/D3’s respective positions.

As Ms McTague submitted, it is likely that a substantial amount of material, including multiple medico-legal expert reports, will need to be translated into Spanish, so that D2 is able to follow the proceedings, if the trial is held in this jurisdiction. Furthermore, there are liability and quantum documents in Spanish that will need to be translated into English for the benefit of the Claimant, D1 and the Court. D2 and D3 will need to instruct English solicitors. Spanish law experts will need to give evidence in relation to aspects of Spanish law relevant to both liability and quantum. Additionally, Spanish witnesses may well be needed on liability and medico-legal matters. The Spanish witnesses would need interpreters when giving evidence at a trial in this jurisdiction and D2 would require simultaneous translation of the proceedings. D2 and D3 would need to instruct an English solicitor and I have already noted what is said about the funding position for D2 (para 93 above). Ms McTague also relies upon the limited damages that the Claimant would recover from D2 and D3 in light of the policy limitation (paras 25 and 51 above).

I acknowledge the force of these points, but, again, the alternative scenario would also entail substantial practical issues and inconvenience. If the claim against D2 and D3 were heard in Spain, extensive documentation relating to the Claimant’s employment, his medical treatment in England, his losses here, along with the reports of multiple medico-legal experts (a number of whom have already been instructed) would need to be translated into Spanish. For reasons I have already indicated, the great majority of the witnesses regarding quantum are based in England and this is also the case for some of the witnesses relating to liability. English witnesses would need interpreters when giving evidence in Spain and the Claimant would require simultaneous translation of the proceedings. Furthermore, on this scenario, many witnesses relating to liability and to quantum, including the Claimant and D2, could well have to give evidence twice, both at the trial in England and at the trial in Spain. The Claimant would have to instruct a Spanish solicitor and Ms Prager KC emphasised that his funding options in this regard would be very limited. As a result of the accident, he is not in employment, he is dependant upon State benefits and is impecunious. She said he would not be able to enter into a conditional fee agreement in Spain, nor have the benefit of after the event insurance or qualified one way costs shifting.

Whilst Pearson 1 indicates that English-based witnesses would be able to give their testimony remotely at a trial in Spain (para 26 above), Huxford 3 suggests the position is more nuanced, at least in relation to significant witnesses (para 52 above). In any event, the Claimant suggests that it would be disadvantageous for him for his witnesses on liability and quantum to have to give evidence remotely, when they would be able to give evidence in person at a trial in this jurisdiction.

Ms McTague also relied upon the potential difficulties of enforcing a judgment of this Court against D2 and/or D3 in Spain (para 26 above). Huxford 3 suggests these difficulties are overstated (para 52 above). In any event, as Ms Prager KC submitted, it is a relatively unattractive argument for D2 and/or D3 to suggest that a factor in their favour at this stage is that if trial takes place in this jurisdiction they may choose not to comply with a judgment of the English Court; and it would be surprising if a well-known company that was part of a multi-national group, such as D3 failed to do so. In the circumstances, I do not attach weight to the enforceability aspect.

I return to questions of potential delay, duplication and increased expense when I consider the next factor.

As the claim against D1 will undoubtedly be heard in England and cannot be litigated in Spain, the only potential options are either: (a) one trial of all the claims in this jurisdiction, or (b) if a claim in Spain proceeds against D2 and D3, two trials, with the Claimant’s claim against D1 being tried in England and his claim against D2 and D3 being tried in Spain. This is not a situation where the options before the Court are single trials in one or other of two competing jurisdictions. Further, it is accepted that the respective claims arise out of the same events and concern the same injuries to the Claimant; that D1 is properly sued in this jurisdiction; and that D1 is a necessary party to a claim of substance which, it is fully engaged in defending. Although faintly suggested by Ms McTague, there is no question of the claim against D1 (the anchor defendant) being merely “casual or adventitious” as Lord Lloyd-Jones referred to in Brownlie (para 80 above); and nor is the claim against D2 and D3 more significant than the claim against D1 (unlike the position in Satfinance, para 77 above).

The central concern that arises where there is a multiplicity of proceedings in different jurisdictions is the risk of inconsistent judgments (para 68 above). This is regarded as “a very important” factor in identifying the appropriate forum (paras 68 and 70 above). Consequently, the Court looks for a single jurisdiction in which the claims against all the defendants may most suitably be tried (paras 69 – 70 above). There is only one candidate in the present case, the jurisdiction of England & Wales.

Faced with this hurdle, Ms McTague pointed out that this was not an “inflexible rule”. However, as the citation she relied upon indicates, the alternative course of two proceedings against different defendants in different jurisdictions would only be adopted where, exceptionally, the interests of the parties or the interests of justice supported this (para 73 above). That is not the case here. I have already explained at paras 74 – 77 above, why Morgan J’s judgment in Satfinance does not assist D2 and D3.

Ms McTague also argued that Mr Fox has a choice that was analogous to the choice that was available to the claimants in Vedanta, so that the risk of irreconcilable judgments is not a “trump card” in this instance (para 71 above). I reject this submission; the positions are not comparable. In Vedanta, the claimants could choose to sue both the defendants in Zambia. Mr Fox cannot sue his former employer, D1, in Spain. Ms McTague said he had a choice whether to simply sue D1 at this stage and await the outcome of those proceedings, since if he was entirely successful against D1 there would then be no need for him to bring a claim against D2 and D3. However, there are obvious reasons which Ms Prager KC highlighted, as to why this does not present itself as an attractive option to the Claimant. D1 has robustly defended the current claim and, amongst other lines of defence, it asserts that the accident was caused by D2. If the Claimant fails or only partly succeeds in his claim against D1, he then faces the prospect of starting a second proceedings against D2 and D3 further down the line in which a substantial number of the same issues would arise and much of the same evidence would need to be heard again, with the attendant considerable delay and increased expense that this would occasion.

Allied to this argument, Ms McTague submitted that a single trial in this jurisdiction would not be the most efficient way of resolving the claims because of the complexities that I have already summarised at para 92 above. She suggested that the most efficient course would be for there to be a trial of liability only against D1 in this jurisdiction before any claim was brought against D2 and D3 as this could well obviate the need to bring such a claim and a liability only trial confined to the claim against D1 could be heard relatively speedily. She suggested that this accorded with D1’s own proposal.

I do not accept this argument. A trial of liability only against D1 would be likely to delay any resolution of the Claimant’s claims for damages. Ms Prager KC emphasised the strained financial circumstances in which he is currently living with his damaged leg in unsuitable first-floor accommodation. Furthermore, such a trial would only resolve all questions of liability if the Claimant was entirely successful against D1, as I have already noted. If it did not do so, then the Claimant would face the duplicated time and costs involved in then bringing second proceedings in Spain arising from the same events and involving (very largely) the same witnesses. On Ms McTague’s proposal, there would, potentially, be at least three trials: the liability trial against D1; the quantum trial against D1; and the trial/s in Spain against D2 and D3. D1’s proposal was in fact for a split trial at which all liability issues were resolved, rather than the liability issues confined to D1 (para 32 above). Furthermore, if just the claim against D1 proceeds first in this jurisdiction, this would give rise to the risk of irreconcilable judgments that I discuss immediately below. As Ms Prager KC pointed out, D2 and D3 have not undertaken to be bound by the findings made at trial if the claim against D1 was heard first.

Ms McTague argued that there was no significant risk of inconsistent judgments in this case because the existence of the CCTV evidence meant that the factual circumstances of the accident could not be disputed. She also suggested that any different outcomes that might arise would stem from the differing legal positions in the two jurisdictions and, as such, would be proper, rather than inappropriate. I do not accept either of these points. There is a clear risk of highly undesirable, inconsistent and irreconcilable findings if claims proceed against D1 in this jurisdiction and against D2 and D3 in Spain, given the considerable overlap in terms of the facts and issues. I will give two examples.

First, the Claimant’s pleaded allegations of negligence against D1 are based on the proposition or premise that the arrangements at D2’s warehouse presented a safety risk in that there was insufficient delineation of the loading bays and the walkways, and insufficient separation between pedestrians and the forklift trucks operating in the area (para 16 above). The Claimant’s pleaded case of negligence against D2 also makes these allegations at (f) – (l) of the Particulars (para 16 above). If the claim against D1 is heard in England and the claim against D2 is heard in Spain, both Courts would have to assess and determine these matters, which include an evaluative element (rather than simply reflecting what is shown by CCTV footage of an incident). It is entirely feasible that the two Courts could arrive at inconsistent conclusions as to the existence and or the extent of these alleged risks to the Claimant’s safety. Self-evidently, this would be highly undesirable.

Secondly, D1 pleads allegations of contributory negligence in its Defence (para 31 above). Pearson 1 indicates that, if sued, D2 will also aver contributory negligence on the Claimant’s part. Again, the assessment of whether Mr Fox was negligent and, if so, to what degree could lead to highly undesirable irreconcilable conclusions being reached if D1 is sued in this jurisdiction and D2 is sued in Spain in relation to the same events.

As I have already indicated, the Court’s task, generally speaking, is to identify the single jurisdiction in which the claims against all the defendants may most suitably be tried. The claim against D1 is proceeding in this jurisdiction and there is only one candidate in the circumstances; the arguments advanced on behalf of D2 and D3 do not come close to displacing that general position, for all the reasons I have identified. Given the considerable overlap between the claims, it would be highly undesirable for them to be heard in different jurisdictions in terms of the risk of irreconcilable judgments and the likely delay and increased costs involved. Whilst I have also taken all the other relevant factors into account, in the present case there are no countervailing factors that outweigh the compelling reasons that exist for the claims being heard together in this jurisdiction. Accordingly, I am quite satisfied that the Claimant has shown that this jurisdiction is clearly and distinctly the appropriate forum for the trial of his claim against D2 and D3.

I mention simply for completeness, that if the Claimant had not succeeded in showing that the action has the most real and substantial connection with this jurisdiction (as I have found), Ms Prager KC did not seek to argue that the matters she raised regarding funding went as far as showing that there was a real risk of a denial of justice if the Claimant’s claim against D2 and D3 was heard in Spain.

So far as the general discretion is concerned (para 82 above), I am not aware of any factors that could cause me to reach a different conclusion to that indicated by the application of the appropriate forum principles.

D1 accepts that the D1 Application was not properly served on D2 and D3 (para 38 above). The parties agreed that there were two options available in the circumstances: (a) the Court could consider the application on the papers and if permission to serve out was granted, once they were served with the proceedings, D2 and D3 could then apply to set aside service and the Court would then list an inter partes hearing; or (b) pursuant to CPR 23.4, the Court could direct that the usual notice requirements were not to apply to service of this application notice, so that the application could proceed with the Court hearing submissions from all parties. Ms Kinsler KC and Ms Prager KC asked me to adopt option (b). Ms McTague indicated that she did not oppose option (b), although she asked that I took account of the circumstances I have summarised at paras 38 - 39 above, when considering the extent to which her clients had adduced evidence of Spanish law. I heard submissions from all parties on a de bene esse basis, indicating that I would address this issue, along with others, in my reserved judgment.

I am quite satisfied that it is in the interests of justice to adopt option (b). Although they were not properly served with the application notice, Clyde & Co have had the application and supporting evidence since 8 December 2025. On 17 February 2026, Mr Thompson clarified that an on-notice hearing was sought and that his client was content for D2 and D3 to file evidence before the hearing (para 39 above). Accordingly, Clyde & Co have had a sufficient opportunity to respond to the application and to submit the evidence that they wish to rely upon. Indeed, they have filed Pearson 2 and Ms McTague has had the opportunity to file a detailed skeleton argument. So far as the appropriate forum arguments are concerned, there is significant overlap with the factual matters that Clyde & Co had already been addressed in Pearson 1. In the circumstances I do not consider that D2 and D3 are prejudiced by my considering the application on an inter partes basis at this stage. There was no indication that they would have relied upon a fuller account or further evidence as to the applicable Spanish law, if they have been served earlier; to the contrary, Clyde & Co’s stated position was that it was disproportionate to adduce expert evidence for this hearing (para 42 above). Adopting option (a) would entail unnecessary delay and increase costs and it would involve hearing the submissions on behalf of D2 and D3 at a later stage, in circumstances where Ms McTague was ready, willing and able to make them on 16 April 2026. Indeed, I found it helpful to hear all parties’ submissions and perspectives at the single hearing and I do not accept the suggestion that D1’s application was made prematurely.

As I flagged earlier, there is a dispute between D1 and D2/D3 as to whether English law or Spanish law governs the additional claim for an indemnity or contribution (which I will refer to as a contribution claim, as a shorthand). Ms McTague accepted that if English law applied, the claim under the Civil Liability (Contribution) Act 1978 raised a serious issue to be tried on its merits.

In terms of English law applying, D1 relies upon Article 20 of Rome II which is headed “Multiple liability” and provides:

The position taken by D2 and D3 was only clarified during the hearing. Pearson 2 had simply asserted that Spanish law applied (para 47 above) and whilst Ms McTague’s skeleton argument contended that Article 20 did not result in the application of English law to the Part 20 claim, it did not develop this point. In her oral submissions, she contended that the wording of Article 20 indicated that it was only concerned with the situation where one debtor has already satisfied the creditor’s claim, in whole or in part. It is not immediately clear to me why the law applicable to contribution claims between debtors would only be the law governing the creditor’s non-contractual claim if the debtor seeking a contribution has already satisfied the creditor’s claim (in whole or part), as opposed to where the debtor was facing a claim from the creditor to that effect. Ms Kinsler KC did not accept that Article 20 was as limited in scope as Ms McTague had suggested. Both counsel told me that there was no authority on this point and as Ms Kinsler KC pointed out, resolving this question would likely benefit from seeing how Article 20 is phrased in other languages and from a consideration of the travaux préparatoires (which were not before me at this stage).

On the premise that Article 20 does not apply to the present circumstances (as she contends), Ms McTague identified the applicable provisions of Rome II as being Article 4 or Article 10. She drew attention to Article 15(b) which provides that the law applicable to non-contractual obligations under this Regulation governs (amongst other circumstances) “any division of liability”. Article 4 sets out the general rules in relation to torts. As potentially material, it provides:

Ms McTague submitted that as the Claimant’s accident and thus the immediate damage occurred in Spain, Article 4.1 indicated that the law of Spain applied. In the alternative, that as the contribution claim was brought against Spanish defendants and concerned events in Spain, there was a manifestly closer connection with Spain rather than England.

In the alternative, Ms McTague relied upon Article 10, which indicates that it applies to a non-contractual obligation “arising out of unjust enrichment” concerning a relationship between the parties that is closely connected with that unjust enrichment. Article 10.1 states that the non-contractual obligation shall be governed by the law that governs that relationship. Article 10.2 says that where the law applicable cannot be determined on the basis of para 1 and the parties have their habitual residence in the same country where the event giving rise to unjust enrichment occurs, the law of that country shall apply. Article 10.3 provides that where the law applicable cannot be determined on the basis of paras 1 or 2, it shall be the law of the country in which the unjust enrichment took place.

Ms Kinsler KC submitted that if Article 4 did apply, given the relevant damage at this stage was D1’s damage (flowing from his liability to the Claimant), the damage would have occurred in England, so that this was a further basis for concluding that the contribution claim was governed by English law. She also indicated that there was considerable authority on the scope of Article 4, which was not before the Court as suggested reliance on this provision had been raised for the first time during oral submissions.

For the reasons I have just explained, I am not in a position to decide at this stage whether English law or Spanish law applies to D1’s contribution claim. However, the serious issue to be tried test is not a high one (para 64 above) and on the limited material before me, there is at least a realistic prospect of D1 establishing that English law applies, either pursuant to Article 20 or Article 4 of Rome II. (I have not formed a view on Article 10, upon which I was addressed very briefly and was shown no authorities as to its scope.) The significance for present purposes, is that D2 and D3 accept that if English law applies, there is a serious issue to be tried (para 115 above). I therefore accept that D1 has satisfied the necessary requirement. I add for completeness that Ms Kinsler KC submitted that as the Part 20 claim was predominantly pleaded on the basis of English law, the onus lay on D2 and D3 to establish that the law of Spain applied if they took issue with the Claimant’s pleaded position. For the avoidance of doubt, I would arrive at the same decision on this issue, irrespective of where this onus lies. However, I have taken account of the fact that Ms Kinsler KC had a very limited opportunity to address the governing law issue because of the stage at which the arguments regarding Rome II were raised.

Furthermore, even if I had formed the view at this stage that D1’s claim was or was likely to be governed by Spanish law, I would nonetheless have concluded that D1 has established that there is a serious issue to be tried in respect of the merits of the contribution claim. I will explain why briefly.

D1 bases its claim against D2 on Article 1145 of the Spanish Civil Code (para 34 above). Article 1145 provides:

Pearson 2 asserts that such a claim only arises once the joint debtor has paid the creditor (para 47 above). Thompson 2 indicates the contribution claim can be brought at an earlier stage under procedures equivalent to Part 20 of the CPR (para 54 above). It is not possible for me to arrive at any conclusion in relation to the parties’ positions when all I have been provided with is the wording of the Article and a brief summary of what, respectively, Ms Pearson and Mr Thompson have been told about the Spanish legal position by Spanish lawyers.

Arguably, this is a situation in which the presumption of similarity may be applied, as the evidence at this stage does not establish that Spanish law is different to the law in this jurisdiction in a material respect, that is to say that a difference between the respective laws would lead to a different outcome in relation to D1’s contribution claim against D2 (paras 65 – 67 above).

In any event, as O’Farrell J observed in Mariana, the Court should be cautious about deciding an issue of foreign law on a summary basis, as it is a question of fact which the trial judge is required to determine on the basis of expert evidence deployed by the parties (para 63 above). In Mariana, O’Farrell J had expert reports on the relevant issues of Brazilian law before her (paras 44 – 53). She concluded that there was a serious issue to be tried; the clear dispute between the experts was not one that was suitable for determination on a summary basis and the competing arguments should be subject to scrutiny and challenge through cross-examination and submissions at trial (para 56). Although the circumstances are rather different here, in that I have much more limited material available to me, it would also be inappropriate for me to try and resolve the parties’ dispute about the scope and/or operation of Article 1145 on a summary basis. I am not able to discount Mr Thompson’s position at this stage. I have not been referred to or provided with any other Spanish law provisions or any Spanish cases that address the interpretation of Article 1145. On one view, Article 1145 appears to be primarily concerned with the level of the contributions that can be claimed from the co-debtors. The scope of Article 1145 and its applicability to D1’s claim against D2, involves questions of fact that require expert evidence to be heard and assessed at the trial.

The position is similar in relation to D1’s claim against D3 pursuant to Article 76 of the Insurance Contracts Law, which provides:

Pearson 2 asserts that the right of action under Article 76 belongs solely to the injured party (para 48 above), whereas Thompson 2 contends the provision is aimed at shielding the injured party from defences that the insurer could raise against the insured and that D1 has standing to bring D3 into the proceedings at this stage (para 54 above).

Arguably, this is also a situation in which the presumption of similarity applies, as the evidence at this stage does not establish that Spanish law is different to the law in this jurisdiction in a material respect, that is to say that a difference between the respective laws would lead to a different outcome in relation to D1’s contribution claim against D3.

In any event, I am not able to discount Mr Thompson’s position at this stage. I have not been referred to or provided with any other Spanish law provisions or Spanish cases that address the interpretation of Article 76. The wording may afford some support for Mr Thompson’s position. The scope of Article 76 and its applicability to D1’s claim against D3 involves questions of fact that require expert evidence to be heard and assessed at the trial.

In opposing the D1 Application, D2 and D3 largely relied upon the factors I have already discussed in relation to their own application. In addition, Ms McTague highlighted that the Part 20 claim was concerned with the respective liabilities of the Defendants and thus with matters that occurred primarily in Spain, rather than England. Ms Kinsler KC relied upon factors analogous to those advanced by Ms Prager KC in resisting the D2/D3 Application. She also emphasised that D1’s primary case was that the Part 20 claim was governed by English law.

I have already decided that this jurisdiction is the appropriate forum for hearing the Claimant’s claims against all defendants, including D2 and D3. There would be a considerable risk of irreconcilable judgments and of unnecessary expense and delay if I were, nonetheless, to conclude that D1’s contribution claim against D2 and D3 should be heard in a different jurisdiction. D1’s claim will involve an assessment of the relative fault of D1 and D2, which will also be central to the trial of the Claimant’s claims against the Defendants. D1 relies upon the same allegations of negligence on the part of D2 in the Part 20 claim as it raises in its Defence of the Claimant’s claim (paras 29-30 and 33 above). There is a very considerable degree of overlap in terms of the evidence and the issues. The claims essentially involve one factual investigation and are closely bound up together. It is plainly in the interests of justice that the contribution claim is heard in the same proceedings as the Claimant’s claim against the Defendants. If this were a domestic case, there would be no question that D2 and D3 would be joined as defendants to the Claimant’s claim and to D1’s additional claim under the Civil Liability (Contribution) Act 1978. As Males LJ observed in Samsung, if the underlying claim is proceeding here, this will be a powerful and sometimes an overwhelming factor in favour of the contribution claim being heard in this jurisdiction (para 72 above). This is such a case.

Accordingly, I am quite satisfied that D1 has shown that this jurisdiction is clearly and distinctly the appropriate forum for the trial of its contribution claim against D2 and D3. There are no factors suggesting that exercise of the general discretion should lead to a different conclusion.

For the reasons I have identified at paras 83 – 86, the Claimant has shown that there is a serious issue to be tried regarding the merits of his claims against D2 and D3. He has also established that England and Wales is the appropriate forum for hearing his claim against D2 and D3 (paras 88 – 110 above). It is accepted that one or more of the jurisdictional gateways in PD 6B apply. Accordingly, I refuse the D2/D3 Application to set aside service of the proceedings on them.

For the reasons I have identified at paras 115 – 131, D1 has shown that there is a serious issue to be tried regarding the merits of its Part 20 claim against D2 and D3. D1 has also established that England and Wales is the appropriate forum for hearing its contribution claim against D2 and D3 (paras 132 – 134 above). It is accepted that the PD 6B para 3.1(4) jurisdictional gateway applies. Accordingly, I grant D1’s application to serve D2 and D3 out of the jurisdiction.

I will give the parties the opportunity to file written submissions on consequential matters including costs and appropriate directions.