No good reason for “misunderstanding” between insurer and law firm

Clyde & Co: No details on how AXA failed to alert its own solicitors

There was “no good reason” for a “misunderstanding or breakdown in communications” between insurer AXA and its solicitors in a personal injury claim, a High Court judge has said.

Master Fontaine said AXA Belgium’s failure to challenge the High Court’s jurisdiction to hear the case within the time limit was a serious breach, given that a successful application would force the claimant to “discard” his £300,000 personal injury claim in England and Wales.

The judge said AXA had accepted that it had not met the 14-day time limit for challenging jurisdiction on forum non conveniens grounds, having made its application 30 days after acknowledgement of service.

“It is also accepted by the defendant that there is no good reason for the breach.

“The explanation is that there was a misunderstanding or breakdown in communications between AXA UK, through whom Clyde & Co receive their instructions, and the defendant, AXA Belgium.

“No details are provided in the evidence as to how such a fundamental misunderstanding could have arisen, how the defendant could have failed to alert their own solicitors in these proceedings that it had instigated proceedings in respect of the same accident in Belgium, or been unaware that proceedings had been brought in England.

“In the absence of any fuller explanation I do not conclude that there was a good reason for the failure.”

The High Court heard that Mohammed Ibrahim was crossing a road near Brussels airport in March 2019 when he was hit by a car insured by AXA Belgium.

He issued a claim form seeking damages of over £300,000. Clyde & Co confirmed that it was nominated by AXA Belgium to accept service.

At the end of February 2024, having missed the deadline, AXA Belgium applied for relief from sanctions, and for a declaration that the High Court should not exercise jurisdiction and for a stay of the claim.

Applying the Denton principles, Master Fontaine found that the failure by AXA to abide with the strict time limit imposed by CPR 11.1(4) for a forum non conveniens application was a “serious or significant” breach of the rules, for which there was “no good reason”.

“A challenge to the jurisdiction of the court by a defendant, whether on substantive grounds or forum non conveniens grounds, would have serious consequences for a claimant if it succeeded.

“It would force a claimant in this jurisdiction to discard their claim, and potentially incur irrecoverable costs. They would have to pursue their claim in a jurisdiction which is likely to be unfamiliar to them and where the language may not be one they know.”

Applying the third stage of the Denton guidance, and looking at ‘all the circumstances’, the judge said that the failure to notify Mr Mohammed in advance of the intention to institute proceedings in Belgium, when the defendant “had been corresponding with the claimant or his English solicitors since March 2019” and “should have been aware from August 2023 that proceedings had been commenced in England”, was also relevant.

Furthermore, AXA Belgium was aware that Mr Mohammed had been examined by English medical experts, who had produced reports.

Failure to notify Clyde & Co about the proceedings in Belgium and the “lack of a proper explanation to this court as to how this situation has arisen” were additional relevant circumstances.

Master Fontaine dismissed AXA Belgium’s application.

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