Mr Christopher Loxton (instructed by Fieldfisher LLP) for the Claimant
Master Thornett :
This is a reserved judgment deciding certain preliminary points arising in the Defendant’s Application dated 14 February 2023. At the hearing on 18 October 2023 of the Defendant’s Application, as listed for two hours, both parties relied upon not only detailed arguments on jurisdiction but also procedural points. I decided certain procedural points should first be considered and concluded. Because the Claimant had complained that the Defendant had not made clear until service of Miss Crowther’s skeleton argument that certain points were being relied upon, I directed that written submissions were to submitted in concluding those points. However as sometimes can happen, in directing for concluding written submission further or other points have been taken (now by the Claimant). I am satisfied that I have sufficient material from both parties to decide at least the points that follow in this judgment. There seems no point in obliging attendance for concluding argument, at least as far as the following points are concerned.
2.1 The claim concerns an injury at work sustained by the Claimant on 12 February 2018 whilst operating as a self-employed aircraft engineer for a Malta based company at the Novo Air Base, Schirmacher Oasis, Queen Maud Land, Antarctica. Briefly, the Claimant was thrown from a mobile set of stairs accessing an aircraft owing to the engine thrust from a passing aircraft taxiing very nearby.
2.2 The Claimant resides in this jurisdiction. By a Claim Form sealed on 10 February 2021, proceedings were issued against five defendant companies, all of whose addresses for service are out of the jurisdiction. In the conventional way in the Kings Bench Division, the Claim Form was marked “Not for Service Out of the Jurisdiction” upon issue.
2.3 By his Particulars of Claim, however, the Claimant elects only to pursue the First Defendant, a company based in South Africa and which is alleged to have been the occupier and operator of the Air Base. The claim focuses upon the degree of control and operation of the movement of aircraft on the Base by the (now singular) Defendant. The Particulars of Claim submits that the jurisdiction of England and Wales is the proper place in which to bring the claim.
2.4 By a without-notice Application dated 15 July 2021, the Claimant applied for permission to serve out of the jurisdiction and an extension of time for service of the Claim Form. The Application was supported by a Witness Statement dated 14 July 2021 from the Claimant’s solicitor, Mr Barrett.2.5 By my Order sealed on 3 August 2021, I granted permission to serve out and the extension of time as sought. The 3 August 2021 Order adopted the draft as submitted by the Claimant and reflected the decision had been without notice to the Defendant.
The full order read:
1. The Claimant is permitted the serve the Claim Form and supporting documents on the Defendant, who is out of the jurisdiction, pursuant to CPR rule 6.36.
2. Time for service in paragraph 1 above is extended to 29th January 2023.
3. A party affected by this Order may apply within 28 days of service of a copy of
the sealed Order to suspend, vary or revoke the same.
4. Costs in the case.
2.6 A further extension of time to 29 July 2023 for service was granted by Order sealed on 24 January 2023. That too featured the same wording as the earlier Order for challenging the direction by a party affected.
2.7 The Defendant was served on 24 August 2022 with the Claim Form, the Particulars of Claim, a Provisional Schedule of Loss, a medical report, the Application to serve out and extend time, the Order to serve out and extend time, a N224 request for service out of the jurisdiction, and a Response Pack. It does not seem in issue that, however, the Defendant was not served with the witness statement of Mr Barrett in support of the original Application to serve out of the jurisdiction. The Defendant did not receive the latter until shortly before the hearing, during interim period of which the Defendant had been unsure both as to the reasons and justification relied upon by the Claimant for service out and whether the permission as granted followed a hearing or not.