Maltese tour bus company removed as a party from personal injury action raised by Scot involved in road accident on holiday

About this case:

• Citation:
  [2024] CSOH 34
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Richardson

The lord ordinary had previously dismissed part of pursuer Simon Morrison’s claim in December 2021, leaving two remaining defenders, Mapfre Middlesea Insurance plc and City Sightseeing Malta Ltd. The second defender pled that there was no jurisdiction in its respect on the basis of Article 13(3) of EU Regulation No 1215/2012 (Recast Brussels 1), as retained following Brexit.

The case was heard by Lord Richardson in the Outer House of the Court of Session. Primrose KC and CS Wilson KC appeared for the pursuer and Cowan, advocate, for the second defender. No representations were made by the first defender in this preliminary matter.

Assumed jurisdiction

The pursuer was injured in a bus accident that occurred on 9 April 2018 when he was on holiday in Malta. In December 2021, the Lord Ordinary upheld a plea of no jurisdiction against Transport for Malta, originally convened as a third party to the case, on the basis of state immunity. The pleadings were amended in February 2022 to include the second defender following that decision.

It was argued by the second defender that following Brexit, the ongoing applicability of Recast Brussels 1 was governed by Article 67(1) of the Withdrawal Agreement, which provided that it applied in respect of legal proceedings initiated before the end of the transition period. As it had not been added to the action until after the end of that period, RB1 did not apply.

For the pursuer it was submitted that the phrase “legal proceedings” in RB1 meant proceedings as a whole. There was no dispute that the case was originally initiated before the end of the transition period. However, the second defender submitted that, even if RB1 applied, the general principle was to sue a defender in the member state in which they were domiciled.

It was further submitted for the second defender that the CJEU case of BT v Seguros Catalana Occidente (2022), which dealt with injuries suffered by a Briton suffered while staying at a holiday home in Spain, supported the proposition that Article 13(3) could not be used to assume jurisdiction over an insured where an action was brought against an insurer by an injured party.

In seeking to distinguish Seguros, the pursuer highlighted that there was a dispute between the defenders as to the indemnity provided under the insurance policy. This issue had a potential impact on his claim against the second defender.

In line with the guidance

In his decision, Lord Richardson said of the meaning of “legal proceedings”: “The language of Article 67(1) is supportive of the broader construction argued for by the pursuer. The narrow construction contended for by the second defender would result in a greater number of cases requiring to use jurisdictional rules from both Recast Brussels I as well as the common law. This increased complexity would not seem consistent with the intention of the Withdrawal Agreement.”

Turning to the use of Article 13(3), he continued: “On its face, the CJEU’s guidance indicates that, in the present case, this court cannot assume jurisdiction over the second defender. Accordingly, resolution of the second issue turns on whether the facts of the present case can be distinguished from those in Seguros.”

On whether such a distinction could be made, Lord Richardson said: “I do not consider that the existence of a dispute between the first and second defenders as to the insurance policy is relevant to the correct characterisation of the pursuer’s claim against the second defender. Further, it does not seem to me that the dispute between the first and second defenders adds very much to the overall picture.”

He concluded: “I consider that the answer to the second issue falls to be determined in line with the guidance provided by the CJEU in Seguros. On this basis, as the claim being advanced by the pursuer against the second defender is not a matter ‘relating to insurance’, this court cannot assume jurisdiction over the second defender in terms of Article 13(3) of Recast Brussels I.”

The action was therefore dismissed insofar as directed against the second defender, leaving the first defender as the sole remaining defender.