31st Aug 2021
Ms Katherine Deal QC (instructed by Irwin Mitchell Solicitors) for the Claimants
Introduction and Background
In early February 2020, Mrs Yvonne Flowers, then 67 years of age, was admitted on an emergency basis to a private hospital facility in Benidorm, Spain, with significant back discomfort and pain arising from spinal disc herniation. Nine days later she died in the same hospital from multiple organ failure having contracted sepsis. The present claim arises out of that death, and is brought by her husband, as First Claimant, and various children, grandchildren and a stepson as Second to Seventh Claimants as close family members. The claim alleges that the First Defendant, Centro Medico Salus Baleares SL (Centro Medico or D1) which traded as the Hospital Clinica Benidorm, was at fault for the death of the late Mrs Flowers and damages are sought in accordance with Spanish law in the English courts. The Second Defendant (Berkley España or D2) is the public liability insurer of Centro Medico in relation to whom a direct right of action is claimed.
Because the claim was issued before the end of December 2020, and therefore within the implementation period of legislation put in place to secure the departure of the United Kingdom from the EU and the many regulations applicable to membership, the Claimants have sought to avail themselves (as they are entitled to) of certain EU rights enshrined in the appropriate regulations, particularly the regulation referable to jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Brussels Regulation No 1215/2012, known as Brussels 1 recast or the jurisdiction/judgments regulation, which provides certain gateways of accessibility to the jurisdiction of choice for citizens of member states, notwithstanding that the accident or event or cause of action occurred or arose on “foreign” soil.
Both Defendants have challenged the jurisdiction of the English court to hear this claim and the entitlement of the Claimants to use those gateways pursuant to CPR 11, and it is this challenge with which the court is concerned.
The brief summary above provides a simple overview of the substance of this case. However, this matter is anything but simple, with the challenge being multifaceted, and numerous issues arising, at least one of which is seemingly without judicial precedent, and all of which require resolution by the court.
I propose to set out the balance of this judgment, for ease of reference, in the following sections: In the first section, I will deal with preliminary matters, including the threshold which must be crossed on a jurisdiction application, the European legislation which provides the gateways, a summary of the issues and the respective positions of the parties. In the second section I will address the issue of domicile. In the third section, I will address the consumer contract gateway, in the fourth section the insurance gateway, in the fifth section the parasitic claim and in the final section I will provide a summary of my overall determination. Clearly within each section, as will become apparent, there are various sub-questions which need to be resolved in accordance with the issues as they have been identified.