Stylianou v Toyoshima [2013] EWHC 2188 (QB) (24 July 2013)

Stylianou v Toyoshima [2013] EWHC 2188 (QB) (24 July 2013)

The English court retains jurisdiction to serve out under CPR 6 BPD 3.1(9)(a) as economic loss sustained in England qualifies as 'damage.' However, under Rome II Article 4(1), the applicable law is Western Australian law, and the case is not manifestly more closely connected with England to displace this. The assessment of damages, including the discount rate, is a matter of substantive law governed by Western Australian law. England is not the proper forum; the discretion to permit service out is not exercised in the Claimant's favour.

Citation
[2013] EWHC 2188
Parties
Claimant: Flora Stylianou; First Defendant: Masatomo Toyoshima; Second Defendant: Suncorp Metway Insurance Limited
Jurisdiction
England and Wales
Judgment Date
24 July 2013
Procedural Posture
Personal Injury Claim (tort) / Interlocutory Application to Set Aside Order for Service Out of Jurisdiction and to Strike Out Claim for Abuse of Process
Outcome
Application granted; order for service out of jurisdiction set aside; claim struck out as abuse of process.
Legal Topics
Jurisdiction, Applicable Law, Forum Conveniens, Service Out of Jurisdiction, Rome II Regulation, Assessment of Damages
Private International Law Conflict of Laws Personal Injury Jurisdiction Applicable Law Forum Conveniens Service Out of Jurisdiction Rome II Regulation +1 more

Case Brief

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Parties

Flora Stylianou

Claimant

Masatomo Toyoshima

First Defendant

Suncorp Metway Insurance Limited

Second Defendant

Procedural Posture

Personal Injury Claim (tort) / Interlocutory Application to Set Aside Order for Service Out of Jurisdiction and to Strike Out Claim for Abuse of Process

Legal Issues

  1. 1 Whether the English court has jurisdiction to hear the claim under CPR 6.36 and 6.37
  2. 2 Whether damage was sustained within the jurisdiction for the purposes of CPR 6 BPD 3.1(9)(a)
  3. 3 Whether England is the proper place to bring the claim (forum conveniens)

Ratio Decidendi

The English court retains jurisdiction to serve out under CPR 6 BPD 3.1(9)(a) as economic loss sustained in England qualifies as 'damage.' However, under Rome II Article 4(1), the applicable law is Western Australian law, and the case is not manifestly more closely connected with England to displace this. The assessment of damages, including the discount rate, is a matter of substantive law governed by Western Australian law. England is not the proper forum; the discretion to permit service out is not exercised in the Claimant's favour.

Court Disposition

Application granted; order for service out of jurisdiction set aside; claim struck out as abuse of process.

Orders

  • Permission to serve out of jurisdiction set aside
  • Claim struck out as abuse of process