Lunn v Antarctic Logistics Centre International (Pty) Ltd [2024] EWHC 1662 (KB)

Christopher Loxton (instructed by Fieldfisher LLP) for the Claimant

GERAINT WEBB KC

Introduction

• This judgment concerns the Defendant’s application pursuant to Part 11 of the Civil Procedure Rules challenging the jurisdiction of the courts of England and Wales to determine the claim for personal injuries brought by the Claimant, Mr Stuart Lunn.

• The claim concerns injuries sustained by Mr Lunn on 12 February 2018 whilst working as a self-employed aircraft engineer for a Malta-based company called Jet Magic Limited (“Jet Magic“). At the time of the accident he was in the process of carrying out checks on a Boeing 757 aircraft (“the B757“) operated by Jet Magic, which was stationary on the blue ice airstrip of the Novolazarevskaya Air Base, also known as the Novo Air Base, Schirmacher Oasis, Queen Maud Land, Antarctica, (“the Novo Airstrip“). According to the Particulars of Claim, Mr Lunn is a British citizen and was resident in the UK at the material time.

• The Defendant, Antarctic Logistics Centre International (Pty) Limited, is a company incorporated under the law of South Africa. At the material time it was the occupier and operator of the Novo Airstrip pursuant to an agreement with the Russian Federation. The Defendant chartered the B757 aircraft to transport scientists and workers to and from research stations in Antarctica.

• Mr Lunn claims that he stepped from the B757 onto a set of mobile stairs next to the aircraft and that then the stairs started to move on the ice as a result of the thrust of the jet engines from an I1-76 Ilyushin aircraft (“the Ilyushin aircraft“) which was taxiing directly in front. The stairs toppled over, causing Mr Lunn to fall to the ice suffering personal injury. In summary, the central allegation is that the Defendant was negligent in failing to manage the air traffic control on the Novo Airstrip so as to ensure that the taxiing Ilyushin aircraft was kept a safe distance from the B757 aircraft in circumstances in which there was a foreseeable risk of injury, including in respect of the use of the mobile stairs, if the Ilyushin aircraft was not kept at a safe distance.

• Following the accident Mr Lunn was flown to a hospital in Cape Town, South Africa, where he remained for 5 weeks until he was transferred to a hospital in the UK for a further two weeks before being discharged to the care of his elderly mother in the UK.

• The Defendant seeks to set aside the Order of Master Thornett dated 29 July 2021 permitting the Claimant to serve proceedings on the Defendant in South Africa and seeks a declaration that the court has no jurisdiction to try the claim or alternatively that it should not exercise any jurisdiction which it may have to try to the claim.

Procedural history

• The Claim Form was issued on 10 February 2021 and originally named five Defendants, including Jet Magic and two entities domiciled in Russia and associated with the Ilyushin aircraft; the Claimant has elected to proceed against the Defendant alone.

• On 15 July 2021 the Claimant issued a without notice application for permission to serve the Claim Form out of the jurisdiction on the Defendant and sought an extension of time for service of the Claim Form. The application for permission to serve out was made under the jurisdictional gateway provided by CPR PD 6B para 3.1(9) on the basis that damage was sustained, or will be sustained, within the jurisdiction. The application was supported by a witness statement of Keith Barrett of Fieldfisher LLP, the Claimant’s solicitors.

• By an Order dated 29 July 2021, sealed on 3^rd August 2021, Master Thornett gave permission for the Claim Form to be served on the Defendant at its address in Cape Town, South Africa and for time for service to be extended to 29 January 2023.

• The Claim Form and Particulars of Claim were served on the Defendant in South Africa on 24 August 2022. The Defendant acknowledged service on 1 February 2023. On 14 February 2023 the Defendant issued its application challenging jurisdiction pursuant to CPR Part 11.

• There were then two hearings before Master Thornett, on 18 October 2023 and 11 January 2024, resulting in two reserved judgments. The first judgment, Lunn v Antarctic Logistics Centre International (Pty) Ltd [2023] EWHC 2856 (KB), concerned a number of procedural issues, including an unsuccessful challenge by the Defendant as to the validity of the Claim Form at the time of the application to extend time for service. No appeal was made against that decision.

• The second reserved judgment, Lunn v Antarctic Logistics Centre International (Pty) Ltd, Judgment No.2 [2024] EWHC 169 (KB), dealt with a further challenge in respect of the extension of time for the service of the Claim Form and various allegations by the Defendant that there had been material non-disclosure on the part of the Claimant in respect of the July 2021 application (see further [110] below). The Master determined, at [13], that there had been no material non-disclosure and that the Claimant had taken reasonable steps before requesting an extension of time. Having dealt with the various procedural issues, the Master noted that “the Defendant’s Application now proceeds on the sole remaining issue whether England and Wales is the proper place to bring the claim against the Defendant”. That issue now falls to be determined.

• The Master’s Order dated 27 February 2024 dismissed that part of the Defendant’s Application seeking to set aside the Order sealed on 3 August 2021 on the basis that the extension of time to serve the Claim Form should not have been granted, permitted the parties to rely upon certain witness statements and provided directions for this hearing, listed for half a day on 29 April 2024. The Order refused permission for the Defendant to appeal the decision.

• On 22 April 2024 the Defendant issued an application seeking permission from a High Court Judge to appeal the Order of 27 February 2024. The Claimant contends that this application was served out of time. In any event, the application was made too late for it to be listed to be dealt with at the hearing on 29 April 2024. No application was made to adjourn the hearing before me; no doubt the parties appreciated that this matter has already had a long procedural history and that it was appropriate to proceed with the substantive hearing without further delay.

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