James Fox v Steve Fellows Road Haulage Services Limited & Ors [2026] EWHC 1054 (KB)

[2026] EWHC 1054 (KB)Case No KB-2025-002252
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 May 2026
Before
THE HONOURABLE MRS JUSTICE HEATHER WILLIAMS DBE
Between
MR JAMES FOXClaimantSTEVE FELLOWS ROAD HAULAGE SERVICES LIMITEDDefendantsFRANCISCO MANUEL MUSEROS LÓPEZDefendantAXA SEGUROS GENERALES, S.A. DE SEGUROS Y REASEGUROSDefendant
Sarah Prager KC (instructed by Stewarts LLP) for ClaimantMarie Louise Kinsler KC (instructed by Kennedys Law LLP) for First DefendantMeghann McTague (instructed by Clyde & Co Claims LLP) for Second & Third DefendantsHearing Hearing date: 16 April 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 6 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]This litigation arises out of an accident in Spain on 9 February 2023 in which the Claimant sustained a severe injury to his left foot. He is a British national resident and domiciled in England and, at the time, he was employed as an HGV driver by the First Defendant (“D1”), a company registered in England and resident and domiciled in this jurisdiction. In the course of his employment, the Claimant was required to collect tiles from the Second Defendant’s (“D2”) warehouse in Onda in Spain, where the accident occurred when D2 drove a forklift truck into the Claimant. D2 is resident and domiciled in Spain. The Claimant claims that both D1 and D2 were at fault and are liable to him in relation to the injury he sustained. The Third Defendant (“D3”) is D2’s insurer and is resident and domiciled in Spain.[2]On 11 August 2025, Master Eastman granted the Claimant’s without notice application to serve the claim on D2 and D3 out of the jurisdiction. By application notice dated 27 October 2025, D2 and D3 applied to set aside service of the claim form (“the D2/D3 Application”). On 8 December 2025, D1 filed a Defence and a Part 20 claim form and particulars of additional claim seeking an indemnity or contribution from D2 and D3. By application notice of the same date, D1 sought permission to serve the Part 20 claim and accompanying documents on D2 and D3 out of the jurisdiction (“the D1 Application”).[3]The D2/D3 Application and the D1 Application were listed for hearing before me on 16 April 2026. I heard submissions in relation to the D2/D3 Application and then submissions in respect of the D1 Application.[4]It is accepted that the Claimant has established that the jurisdictional gateways in PD 6B para 3.1(3) and/or para 3.1(9) apply in respect of his claim against D2 and D3. However, the following matters are disputed in relation to the D2/D3 Application: i) Whether the Claimant has shown that his claim against D2 and D3 has a real prospect of success; and, if so ii) Whether he has shown that England is the appropriate place in which to bring the claim.[5]It is also accepted that D1 has established that the jurisdictional gateway in PD 6B para 3.1(4) applies in respect of its Part 20 claim against D2 and D3. As I address at paras 113 – 114 below, a preliminary issue was raised as to whether the D1 Application should be heard on an inter-partes basis. The substantive issues to be resolved in respect of this application are: i) Whether D1 has shown that the Part 20 additional claim against D2 and D3 has a real prospect of success; and, if so ii) Whether D1 has shown that England is the appropriate place in which to bring the claim.[6]All parties are agreed that the Claimant’s claim against D1 is governed by English law and that it can only be heard in this jurisdiction, as any claim that he may have had against D1 in Spain is time-barred. The Claimant, D2 and D3 agree that his claim against D2 and D3 is governed by Spanish law. D1 contends that its Part 20 claim against D2 and D3 is governed by English law, whereas D2 and D3 say it is governed by Spanish law.[7]The Claimant relies upon witness statements made by Rebecca Jayne Huxford, his solicitor at Stewarts Law LLP, dated 22 July 2025 (“Huxford 1”) and 12 March 2026 (“Huxford 3”). D2 and D3 had earlier objected to the admissibility of Huxford 3, but that objection was not maintained at the hearing before me, albeit Ms McTague relied upon the circumstances that had led to that objection as relevant to my evaluation of the disputed issues.[8]D1 relies upon witness statements made by David Joseph Thompson, its solicitor at Kennedys Law LLP, dated 8 December 2025 (“Thompson 1”) and 12 March 2026 (“Thompson 2”).[9]D2 and D3 rely upon witness statements made by Alexandra Pearson, their solicitor at Clyde & Co Claims LLP, dated 27 October 2025 (“Pearson 1”) and 9 March 2026 (“Pearson 2”).

The material circumstances

[10]The Claimant was born on 21 January 1969 and is now 57 years old. He is a British national resident and domiciled in England. At the time of his accident he was employed by D1, a company registered in England and resident and domiciled in this jurisdiction, as an HGV driver, working out of its depot in Burton upon Trent, England. In the course of his employment, the Claimant attended D2’s premises in Onda, Spain to collect ceramic tiles. In the accident at D2’s premises that I referred to earlier, he sustained a severe crush and degloving injury to his left foot. He was initially treated in hospital in Spain, where he underwent surgery to try and preserve his foot. After seven days he was repatriated to the United Kingdom, where it was determined that his foot could not be saved and he underwent a below knee amputation.[11]On 12 July 2023, the Claimant entered into a conditional fee agreement with Stewarts LLP to pursue his claim for loss and damage in England, with an after the event insurance policy. A letter of claim dated 8 March 2024 was sent to D1. By a response dated 9 April 2024, D1 denied liability and asserted that D2 was to blame for the accident. Subsequent correspondence ensued between the Claimant’s solicitors and D2 and D3. It is accepted that these letters had the effect of interrupting the running of what would otherwise be a one year limitation period.[12]On 19 June 2025, the claim form was issued in respect of these proceedings (and it was subsequently sealed on 22 August 2025).

The Claimant’s pleaded case

[13]The Particulars of Claim accept that, pursuant to Article 4(1) of Regulation (EC) No. 864/2007 (“Rome II”), the tortious claim against D2 is governed by Spanish law and that pursuant to Article 18 of Rome II, the claim against D3 is also governed by Spanish law (paras 18 and 19). The pleading alleges at para 5 that D3 is directly liable to the Claimant in respect of the accident pursuant to Article 76 of Law 50/1980 of 8 October 1980 on Insurance Contracts (“the Insurance Contracts Law”).[14]The liability of D1 is advanced on the basis that, as his employer, D1 owed him non-delegable contractual and tortious duties to provide him with a safe system of work which had been properly risk assessed (para 20, Particulars of Claim). It is alleged that before the accident, D1 knew or ought to have known that D2’s warehouse did not operate a system of work which separated pedestrians from forklift trucks and that this posed a significant risk of significant harm befalling the Claimant (para 21).[15]As regards D2, the Claimant relies upon the following provisions of Spanish law: i) Article 19(1) of the Workers' Statute as enacted by Royal Decree 2/2015 of 23 October 2015, pursuant to which workers shall, in the performance of their services, be entitled to effective occupational safety and health protection; ii) Article 14(2) Of Law 31/195 of 8 November 1995 on occupational risk, pursuant to which the employer must guarantee the safety and health of the workers in his service in all aspects related to work; iii) Article 15(1) of Law 31/1995 of 8 November 1995 on occupational risk prevention, pursuant to which the employer shall apply the measures that make up the general duty of prevention provided for in the previous article, in accordance with the general principles itemised at (a) – (i); iv) Article 15(3) of Law 31/195 of 8 November 1995 on occupational risk prevention, under which the employer shall take the necessary measures to ensure that only workers who have received sufficient and appropriate information are allowed access to areas of serious and specific risk; v) Article 16(l) of Law 31/1995 of 8 November 1995 on occupational risk prevention, under which the prevention of occupational risks shall be integrated into the general management system of the company, both in all its activities and at all hierarchical levels of the company, through the implementation and application of an occupational risk prevention plan; vi) Article A6(l) of Law 31/1995 of 8 November 1995 on occupational risk prevention, which identifies the essential instruments for the management and application of the occupational risk prevention plan; vii) Article 96(2) of Law 36/2011 of 10 October 2011 on labour jurisdiction which places the burden of disproving fault on the part of the employer; and/or viii) Article 1902 of the Spanish Civil Code, which provides that whoever by action or omission causes damage to another, through fault or negligence, is obliged to repair the damage caused.[16]Para 23 of the Particulars of Claim alleges that the accident was caused or contributed to by D1 and/or D2 and that the Defendants are each liable to the Claimant in respect of it. The “Particulars” that follow state:
“The First Defendant was in breach of contract and negligent in that it: a) failed to risk assess the said premises properly or at all; b) failed to identify the risk posed by the failure to delineate loading bays or pedestrian walkways; c) failed to identify the risk posed by the failure to separate pedestrians from forklift trucks; d) failed to take any, or any adequate, steps to minimise the said risks; e) failed to instruct the Claimant to remain in his cab at all times whilst in the warehouse; The Second Defendant was in breach of the said provisions of Spanish law in that it: f) failed to risk assess the said premises properly or at all; g) failed to identify the risk posed by the failure to delineate loading bays or pedestrian walkways; h) failed to identify the risk posed by the failure to separate pedestrians from forklift trucks; i) failed to take any, or any adequate, steps to minimise the said risks; j) failed to mark out delineated loading bays and walkways until after the accident; k) failed to instruct the Claimant to remain in his cab at all times whilst in the warehouse; l) caused, permitted or allowed the Claimant to walk around the warehouse when it was not safe to do so; m) failed to pay any heed to the fact that as he knew or ought to have known the Claimant was walking around the warehouse; n) failed to pay any or any sufficient heed to the presence or position of the Claimant in the warehouse; o) failed to steer around, slow or stop before driving into the Claimant; p) drove into the Claimant.”
The Second Defendant was in breach of the said provisions of Spanish law in that it:[17]The Claimant relies upon the medical report of Dr Renjith Bose (Consultant in Rehabilitation) dated 9 August 2024 and a preliminary Schedule of Loss.

The Claimant’s application to serve D2 and D3 out of the jurisdiction

[18]By application notice dated 22 July 2025, the Claimant applied to serve D2 and D3 out of the jurisdiction. The application was supported by Huxford 1. Ms Huxford explained that the Claimant had not returned to work following the accident and he was experiencing ongoing symptoms of pain and discomfort. She considered it unlikely at his age that he would find suitable alternative sedentary employment. She indicated that the Claimant believed his claims against D2 and D3 had reasonable prospects of success, for the reasons she identified at paras 39 – 51 (which referred to the pleaded allegations).[19]As regards the jurisdictional gateway, Ms Huxford said the Claimant contended that PD 6B para 3.1(9) (“the Tort Gateway”) applied, as damage was sustained and would continue to be sustained by him within this jurisdiction. Since his repatriation to the United Kingdom (“UK”), all of his medical treatment had been within this jurisdiction and his symptoms continue in this jurisdiction (paras 56 – 57). In the alternative, it was said that PD 6B para 3.1(3) (“the Anchor Defendant Gateway”) applied, as there was a real issue which it is reasonable for the Cout to try, the Claimant wishes to serve the claim form on D1 who is within the jurisdiction and D2 and D3 are necessary or proper parties to the claim against D1. At para 62, Ms Huxford set out why the Courts of England and Wales are the appropriate forum.[20]Permission to serve D2 and D3 out of the jurisdiction was granted by Master Eastman, following consideration of the papers, in his order dated 7 August 2025 and sealed on 11 August 2025. On 13 October 2025, D2 and D3 acknowledged service, indicating that they disputed jurisdiction.

The D2/D3 Application

[21]The D2/D3 Application was made by application notice dated 27 October 2025 and supported by Pearson 1. Ms Pearson confirmed that D2 is a Spanish national living in Castellon and domiciled in Spain and that D3 is a Spanish insurance company domiciled in Spain with its registered address in Palma de Mallorca. The insurance contract between D2 and D3 was made in Spain and is governed by Spanish law.[22]Ms Pearson observed that all of the allegations against D2 appeared to relate to duties owed by an employer, save for the allegation of tortious fault under Article 1902 of the Spanish Civil Code and that D2 was not the Claimant’s employer (para 21). She also disputed that there was any basis for strict liability (para 22). Ms Pearson asserted there was no evidence on which the Court could conclude that the claim has a real prospect of success. She said she had watched the CCTV footage of the accident and that:
“23....The footage shows the Claimant was not wearing Hi-Viz clothing; was wandering around the warehouse without purpose in close proximity to moving forklift trucks; and immediately before the accident was walking along the offside of his trailer before suddenly veering diagonally to his right directly into the path of the oncoming forklift truck. 24.The footage does not support a claim based on fault. It shows a person who walked suddenly into the path of an oncoming truck, seemingly without regard for his training, experience, the warehouse safety requirements or his own safety.”
[23]Ms Pearson indicated she was instructed by D2 that there were warning signs on display at the warehouse, that the forklift truck had audible and visible safety warnings and that an Occupational Risk Prevention Plan had been implemented (para 25).[24]Ms Pearson said she was informed by a Spanish lawyer colleagues in the Clyde & Co Madrid office that under Spanish law, there “is a broad possible application of contributory fault and that findings of contributory fault can often be very high – including so high as to extinguish the claim where a claimant is held to be exclusively at fault”. She asserted that there was scope for “very significant contributory fault by the Claimant which could extinguish his claim” (para 26).[25]As regards the claim against D3, Ms Pearson said her Spanish legal colleagues had informed her that recovery by the injured party under the policy was limited to the amount insured by the policy; and that D3 had indicated the amount insured by the relevant policy was limited to a maximum of €300,000 per claim, with a sub-limit of €150,000 per victim. Accordingly, she said the Claimant would be limited to recovering €150,000 (which was substantially lower than the damages claimed) and an assumed additional amount of €150,000 in respect of his legal costs and experts (para 27).[26]Ms Pearson contended that the circumstances pointed clearly to Spain as the forum conveniens for the reasons she identified at paras 30 – 32. Amongst other factors, she said she had been informed by her Spanish legal colleagues that the Claimant would not be required to attend Court in Spain, since the Spanish Courts permitted remote testimony. She contrasted this with the position in England, noting that the UK Government website indicated that the UK Government had not been able to obtain the agreement of the Government of Spain to allow individuals in Spain to voluntarily give evidence from Spain. She said that her Spanish legal colleagues had also informed her that tables and tariffs would be applied to the assessment of non-financial losses under Spanish law, resulting in a complex process; and that under Spanish law, the imposition of penalty interest was affected by the conduct of the parties and the pre-action procedure. She noted that if the case were to proceed to judgment in England, the judgment would not be automatically recognised or enforced in Spain, which could lead to increased costs and delay.

D1’s Defence and Part 20 claim

[27]D1 has submitted to the jurisdiction of this Court and its Defence was filed on 8 December 2025. D1 admits that the law applicable to the Claimant’s claim against D2 is Spanish law pursuant to Article 4(1) of Rome II, but it reserves the right to argue that his claim against D2 should be determined by reference to English law, including on the basis of Article 4(3) of Rome 11 (para 13). D1 accepts that the law applicable to the Claimant’s direct action against D3 is Spanish law (para 14).[28]D1 accepts that it owed the Claimant a non-delegable duty to take reasonable care for his safety (para 15, Defence). However, D1 denies the allegations of negligence and breach of contract, averring that:(a) whilst D1 did not perform a specific risk assessment of D2’s premises, the risks were adequately controlled by the employment of experienced HGV drivers, who were properly inducted and instructed;(b) the loading bays and pedestrian walkways were delineated at the material time;(c) the risk of contact between pedestrians and forklift trucks at D2’s warehouse was not capable of being minimised by any actions of D1 beyond those that it had taken; and(d) it was not reasonable or practicable to instruct drivers to remain in their cabs at all time when in the warehouse.[29]The Defence pleads that further and in the alternative, the Claimant’s accident was caused or materially contributed to by the negligence of D2 (para 19). The “Particulars of Negligence” are set out as follows:
“(a) Failing to devise institute or enforce any or any adequate system for the separation of pedestrians and vehicles in the Second Defendant's warehouse. (b) Failing to ensure that all workers at the warehouse (whether employees or visitors) wore High Viz vests, in accordance with the signage displayed at the Second Defendant's office. (c) Instructing or permitting the Claimant to park his HGV and trailer away from the loading bays, one of which was free at the material time. (d) Permitting the Claimant to walk around the warehouse and to approach stored pallets and to examine or inspect the same. The Claimant was visible to two forklift truck drivers acting in this way in the minutes before the accident. (e) Driving the forklift truck too fast. (f) Failing to keep any or any adequate look out. (g) Failing to heed the presence or approach of the Claimant as a pedestrian. (h) Driving into collision with the Claimant.”
[30]The Defence pleads that further and in the alternative, the Claimant’s accident was caused or materially contributed to by the fault, negligence or breach of obligations of D2 under Spanish law (para 20). D1 relies on the allegations of fault it identified at para 19 and adopts the Claimant’s allegations as to D2’s breaches of Spanish law at para 23 of the Particulars of Claim (para 16 above).[31]The Defence pleads that further and in the alternative, the accident was caused or materially contributed to by the Claimant’s own negligence (para 21). The allegations relied upon are that the Claimant:(a) failed to wear his High Viz vest when present on the floor of D2’s warehouse;(b) failed to wear his safety boots;(c) walked around D2’s warehouse when there was no purpose in doing so;(d) failed to wait for the loading of his trailer to start either in his cab or outside the warehouse;(e) approached stored pallets in the warehouse when it was not part of his duties to do so;(f) walked around and behind the pallets so that his presence was obscured from the forklift truck drivers;(g) failed adequately to heed the presence of two forklift trucks engaged in removing pallets at the time;(h) walked away from his trailer and towards the stored pallets without looking to his left;(i) failed to adequately heed the movements of the forklift trucks; and(j) failed to heed the presence or approach of the forklift truck which struck him.[32]At para 22 of the Defence, D1 indicates that it will seek an order for a split trial of the issues of liability in respect of the Claimant’s claim and D1’s Part 20 claim against D2 and D3.[33]D1’s Part 20 claim against D2 and D3 reiterates the denial of liability for the Claimant’s accident and avers that the accident was caused or materially contributed to by the negligence of D2. Para 5 of this document repeats the Particulars of Negligence that are set out at para 19 of the Defence (para 29 above). Para 6 repeats D1’s alternative case against D2 under Spanish law, as pleaded at para 20 of the Defence (para 30 above).[34]D1 says that if, contrary to its Defence, it is found liable to the Claimant, it will be entitled to an indemnity from D2 and/or D3 or such contribution as the Court thinks just pursuant to section 1 of the Civil Liability (Contribution) Act 1978 (para 7). Further or alternatively, under Spanish law, D1 claims an indemnity and/or contribution from D2 and/or D3 pursuant to Article 1145 of the Spanish Civil Code; and relies upon Article 76 of the Insurance Contracts Law as against D3 (para 8).

The D1 Application

[35]The D1 Application was made by application notice dated 8 December 2025, seeking permission for D1 to serve the Part 20 claim and the accompanying documents on D2 and D3 out of the jurisdiction. Question 5 on the Form N244 was ticked to indicate that D1 wanted the application determined without a hearing. However, in answer to question 6, it was said that the hearing was likely to last two hours.[36]The application was supported by Thompson 1. Mr Thompson indicated that D1 opposed the D2/D3 Application (para 11). In terms of the D1 Application, he said that D1 relies upon the jurisdictional gateway in PD 6B para 3.1(4) (“the Necessary or Proper Party Gateway”). At paras 20 – 25, Mr Thompson addressed why D1’s Part 20 claim has a real prospect of success. Whilst D1’s primary case was that it was not liable for the accident, in the alternative, there were strong prospects of success for the Part 20 claim, if D1 was found liable in whole or in part to the Claimant. The pleadings indicated that the Claimant’s case against D1 was entirely parasitic upon the case against D2 and D3, as the allegations against D1 were only sustainable insofar as the Claimant proved that D2’s premises presented a danger to him.[37]In paras 27 – 40, Mr Thompson set out why he believed the Court could be satisfied that this jurisdiction is the proper place for the Part 20 claim to be brought.[38]On 8 December 2025, the D1 Application was sent to the solicitors for D2 and D3 by email. At that stage, Clyde & Co had neither been asked, nor been nominated, to accept service on D2 or D3’s behalf by email or otherwise. Whilst this does not appear to have been appreciated at the time, Ms Kinsler KC accepts that in the circumstances the D1 Application was not properly served.[39]On 8 January 2026, D2 and D3 received a Hearing Notice, indicating that the D1 Application and the D2/D3 Application would be heard by Deputy Master Marzec on 18 March 2026. The hearing time estimate was half a day. On 16 February 2026, Ms Pearson wrote to the Deputy Master, indicating that the D1 Application had been made on a without notice basis and only provided to Clyde & Co for information purposes and that, accordingly, D2 and D3 had not filed any evidence in response. She proposed that the D2/D3 Application should be heard on 18 March 2026, with the D1 Application being heard on a subsequent occasion. Mr Thompson wrote to the Court the next day, indicating that D1 did not agree that the two applications should be listed separately. He said the two applications raised linked questions and should be heard together and that deferring a hearing of the D1 Application would occasion delay. He clarified that the indication in the application notice that it was to be decided without a hearing was in error, as confirmed by the provision of the two hour time estimate. Mr Thompson said that D1 was content for D2 and/or D3 to file evidence before the hearing date.[40]In the event, the Deputy Master decided the applications should be considered by a High Court Judge and the 18 March 2026 hearing was vacated, with the two applications subsequently listed for the one-day hearing on 16 April 2026.

Expert evidence regarding Spanish law

[41]On 27 November 2025, Stewarts wrote to Clyde & Co indicating that they did not think the Court would be in a position to determine the issues raised in the D2/D3 Application without Part 35 expert reports from Spanish lawyers. The letter suggested that the parties write to the Court on a joint basis, confirming they intended to rely on expert reports and proposing directions as to their exchange. The letter also invited Clyde & Co to set out their reasons if they objected to this course. Ms Huxford sent a chasing communication on 19 January 2026, as she had not received a substantive response to this letter.[42]Ms Pearson replied to the 27 November 2015 letter on 12 February 2026, indicating that Clyde & Co did not consider that expert evidence on Spanish law was reasonably required or proportionate for the resolution of the issues before the Court at this stage. She invited Ms Huxford to specify the Spanish law issues that were in dispute and which reasonably required expert evidence if she disagreed. Stewarts replied by letter dated 25 February 2026, stating that it was crucial for the Court to understand the position under Spanish law when determining the forum non conveniens issue. The letter said that in in the interests of proportionality and maintaining the hearing date, the Claimant would not make a formal application to Court to adduce the evidence, but would exhibit a report from a properly qualified expert to a further statement.[43]Ms Pearson replied the next day, 26 February 2026, noting that Ms Huxford had not identified the issues of Spanish law on which expert evidence was required, as she had requested. She said the jurisdictional challenge was not a mini-trial and that expert evidence as to Spanish law was more appropriately admitted at a full merits assessment. She asserted that the Claimant should have introduced expert evidence at an earlier stage if it was thought necessary to support his pleaded case. Ms Pearson did not accept that she had sought to introduce expert evidence improperly in her witness statement. She said Clyde & Co would object to any attempt by the Claimant to rely on expert evidence without permission of the Court.[44]Ms Huxford responded by letter emailed on 27 February 2026, enclosing her second witness statement dated 27 February 2026 (“Huxford 2”). Exhibited to this statement was a report on elements of Spanish law from David Sánchez Almagro, a lawyer at the Madrid Bar and a partner at Estudio Juridico Almagro SLP. In her covering email, Ms Huxford said the requirement for this expert evidence had arisen because Ms Pearson’s witness statements contained descriptions of Spanish law which appeared to be fundamentally wrong.[45]Clyde & Co maintained their objection to Huxford 2, in the absence of any permission from the Court to rely on Mr Almagro’s report. In the event, the Claimant did not seek to rely upon Huxford 2 and served Huxford 3 in its place, which includes various references to Mr Almagro’s opinion (see paras 50- 52 below). Ms Huxford contended this was in keeping with the approach taken in Ms Pearson’s witness statements. By the time of the hearing before me, none of the parties were objecting to the multiple references to information received as to Spanish law that are contained in the solicitors’ respective witness statements. I will now summarise the further witness statements that were served in March 2026.

Pearson 2

[46]Pearson 2 responded to the D1 Application. Ms Pearson explained that the application had not been properly served (para 38 above). She also highlighted the ambiguity as to whether the application was intended to be made on notice and she suggested that it had been made prematurely. She said the two applications should be heard sequentially and separately and that disposing of the D2/D3 Application first would narrow the issues. She pointed out that the Part 20 claim was entirely dependent on the outcome of the claim against D1.[47]Ms Pearson contended that, in any event, the D1 Application was without merit and should be dismissed. She said that pursuant to Article 20 of Rome II, the law applicable to the Part 20 claim was Spanish law; although she did not elaborate upon this contention (para 53). She indicated she had taken further advice from her legal colleagues in Clyde & Co’s Madrid office. Her understanding was that a claim under Article 1145 of the Spanish Civil Code could not be brought until such time as D1 had incurred a liability to the Claimant, as for the cause of action to exist, there must be an existing debt that one joint debtor has paid to the creditor, which then creates the obligation for the other co-debtors to make a contribution (para 56). She said the Spanish Courts have confirmed that once a joint liability on one or more debtors has been satisfied, Article 1145 permits the paying party to exercise a “recourse action” against co-debtors to apportion liability; and in this regard she referred to Spanish Supreme Court Number 16 July 2001, citing Spanish Supreme Court Numbers 12 July 1995 and 4 January 1999 (para 58). Accordingly, D1’s current reliance upon Article 1145 was misconceived as, at present, there was no judgment creating a debt in favour of the Claimant that must be assumed jointly by the Defendants.[48]Ms Pearson said that her Spanish legal colleagues had informed her that the right of action against an insurer under Article 76 of the Insurance Contracts Law belongs solely to the injured party (or, if applicable, their heirs), so that it was not a right that could be exercised by D1.[49]In paras 67 - 72, Ms Pearson explained why the most appropriate forum for the Part 20 claim was Spain.

Huxford 3

[50]Huxford 3 responded to the contentions raised in Pearson 1. Ms Huxford said her understanding from Mr Almagro was that the pleaded Spanish law duties that referred to employers were not confined solely to the employer-employee relationship but arose from the operation and control of the workplace and the organisation of the work being undertaken at the time of the accident (para 27). She said Mr Almagro had informed her that the Spanish Supreme Court had repeatedly held in a series of judgments from 2005, 2011 and 2012 that in cases involving workplace accidents “the occupational risk prevention regime applies not only to the employer but also to third parties who were involved in or had influence over the circumstances of the accident” (para 30). She added these cases had established that “labour-law duties on workplace safety supersede other legal regimes in such cases and extend to all potential defendants regardless of whether they were the injured worker’s employer” (para 30). Between paras 31 – 36, Ms Huxford set out further details of Mr Almagro’s analysis of the Spanish Supreme Court’s decisions and she cited various paragraphs from the judgments. She also contended that the Particulars of Claim identified a fault-based claim that would in any event constitute a breach of the Article 1902 general tort duty (paras 38 – 41).[51]As regards the Claimant’s claim against D3 and the point Ms Pearson had raised regarding the indemnity limit (para 25 above), Ms Huxford said that Mr Almagro had informed her that the overall indemnity limit of €300,000 was enforceable against the Claimant, but the purported sub-limit of €150,000 was not, as it had not been specifically accepted and signed by the policyholder as required by Article 3 of the Spanish Insurance Contract Act (Law 50/1980) and judgment 1581/2025 of 5 November 2025 of the Spanish Supreme Court. She said that Mr Almagro had also informed her that under Article 74 of the same Act, in the absence of any contractual provision in the policy to the contrary, the insurer remains responsible for all legal and expert costs incurred in defending the claim, without any applicable limit (para 45).[52]Turning to the appropriate forum, Ms Huxford said she had been informed by Mr Almagro that the tariff system used for the quantification of damages that Ms Pearson had referred to (the Baremo), was only binding in road traffic accident cases, although it could be referred to for guidance in other instances and the court had a discretion subject to the principle of restitutio in integrum (para 50 (c)). She said that Mr Almagro had informed her that the Spanish courts had a discretion whether to permit remote testimony and that where the evidence of a witness was of great importance, the Court may prefer evidence to be given in person (para 50(g)). Ms Huxford also indicated that Mr Almagro had informed her that an English judgment could be enforced under Law 29/2015 on international cooperation in civil matters; and that the Spanish Courts rarely opposed recognition and enforcement of an English judgment against an international insurer where the opportunity to present a defence had been given (para 50(i)).

Thompson 2

[53]Thompson 2 was filed in response to Pearson 2. In particular, Mr Thompson addressed two points of Spanish law, in relation to which he said he had received input from a Spanish lawyer, Lluis Carreras del Rincón.[54]First, as regards Article 1145 of the Spanish Code (para 47 above), he agreed that the “right of recourse” accrued upon payment of the debt, but he indicated that this did not preclude D1 from bringing a claim for indemnity / contribution at this stage and that Spanish procedural rules allowed for the resolution of the primary claim and the contribution claim in a single trial, akin to the CPR Part 20 procedure (para 7). Secondly, Mr Thompson agreed that Article 76 of the Insurance Contracts Law was a statutory protection afforded to the injured party, in that the insurer is prohibited from raising defences against them that it would have as regards the insured. However, it did not follow from this that D1 lacked standing to bring D3 into the proceedings to guarantee the effectiveness of a future contribution claim; again, Spanish procedure permitted the right of contribution and the direct right of action against the insurer to be resolved concurrently (para 9). The legal framework The requirements to be established

The legal framework

[55]CPR 6.36 provides that a claimant may serve a claim form out of the jurisdiction with the permission of the Court if any of the grounds set out in para 3.1 of PD 6B apply. These grounds are usually referred to as the jurisdictional gateways.[56]In the present case, the Claimant relies upon the Anchor Defendant Gateway at para 3.1(3), which applies where:
“A claim is made against a person (‘the defendant’) on whom the claim form has been served or will be served (otherwise that in reliance on this paragraph) and – (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.”
[57]For present purposes, D1 is the anchor defendant and it is accepted that D2 is a necessary party and D3 a proper party to the claim.[58]The Claimant further or alternatively relies upon the Tort Gateway at para 3.1(9), which applies when:
“A claim is made in tort where – (a) damage was sustained, or will be sustained., within the jurisdiction; (b) damage which has been or will be sustained results from an act committed, or likely to be committed within the jurisdiction; or (c) the claim is governed by the law of England and Wales.”
It is accepted that a significant part of the Claimant’s damage was sustained within this jurisdiction.[59]D1 relies upon the Necessary or Proper Party Gateway at para 3.1(4), which applies where:
“A claim is an additional claim under Part 20 and the person to be served is a necessary or proper party to the claim or additional claim.”
[60]It is accepted that D2 and D3 are necessary or proper parties, at least to the main claim.[61]As material, CPR 6.37 states:
“(1) An application for permission under rule 6.36 must set out – (a) which ground in paragraph 3.1 of Practice Direction 6B is relied on; (b) that the claimant believes that the claim has a reasonable prospect of success; and (c) the defendant’s address or, if not known, in which place the defendant is, or is likely to be found. (2) Where an application is made in respect of a claim referred to in paragraph 3.1(3) of Practice Direction 6B, the application must also state the grounds on which the claimant believes that there is between the claimant and the defendant a real issue which it is reasonable for the court to try. (3) The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.”
It is accepted that the requirements in CPR 6.37(1) and (2) are satisfied in this instance. The question of the proper place to bring the Claimant’s claim and the Part 20 claim are very much in issue. (a) which ground in paragraph 3.1 of Practice Direction 6B is relied on; (b) that the claimant believes that the claim has a reasonable prospect of success; and (c) the defendant’s address or, if not known, in which place the defendant is, or is likely to be found.[62]As identified by Lord Collins of Mapesbury JSC in Altimo Holdings v Kyrgyz Mobil Tel Limited [2011] UKPC 7, [2012] 1 WLR 1804 (“Altimo”) at para 71, to obtain permission to serve a defendant outside of the jurisdiction, the burden is on the claimant to satisfy the Court that: i) In relation to the foreign defendant, there is a serious issue to be tried on the merits, that is a substantial question of fact or law or both; ii) There is a good arguable case that the claim falls within one of the jurisdictional gateways; and iii) In all the circumstances, this jurisdiction is clearly or distinctly the appropriate forum for the trial of the dispute and that the Court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction. As I have already indicated, only elements (i) and (iii) are in issue in relation to the two applications that are before me.

A serious issue to be tried

[63]The question of whether there is a serious issue to be tried involves the test that is applied to applications for summary judgment. The principles were summarised by O’Farrell J at para 40 in Município de Mariana v BHP Group (UK) Limited & Ors [2023] EWHC 2030 (TCC) (“Mariana”) as follows:
“(i) The court must consider whether BHP have a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman [2001] 1 All ER 91. (ii) A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]. There must be a plausible evidential basis for the claim: Brownlie v Four Seasons Holding Inc [2017] UKSC 80 per Lord Sumption at [7]. (iii) The court must not conduct a ‘mini-trial’: Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [95]; Lungowe v Vedanta [2019] UKSC 20 at [9]-[14]; Okpabi v Royal Dutch Shell [2021] UKSC 3 at [21], [110]. (iv) The court should hesitate about making a final decision without a trial and must take into account not only the evidence actually placed before it at the application stage, but also any reasonable grounds identified for believing that a fuller investigation into the facts of the case would add to or alter the evidence relevant to the issue: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550; Okpabi at [127]-[128]. (v) If the court is satisfied that it has before it all the evidence necessary for the proper determination of a short point of law or construction and the parties have had an adequate opportunity to address the question in argument, it should grasp the nettle and decide it: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725 at [11]-[14]; Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15]. (vi) However, the court should be cautious about deciding an issue of foreign law on a summary basis because it is a question of fact which the trial judge is required to determine on the basis of expert evidence deployed by the parties: Byers v Saudi National Bank [2022] EWCA Civ 43 at [103].”
[64]I was also referred to para 6.37.15 of the White Book, where the editors observe that it is important to have in mind “that the test is not high one. An issue which is imaginary or fanciful is not a serious issue to be tried; a claimant has a real prospect of success if its chances of success are not fanciful”. The same paragraph cites para 22 of Lord Hamblen’s judgment in Okpabi v Royal Dutch Shell Plc [2021] UKSC 3, [2021] 1 WLR 1294 for the proposition that the Court will generally analyse whether there is a reasonable prospect of success on the assumption that the facts alleged in the Particulars of Claim are true, unless they are “demonstrably untrue or unsupportable”.

The presumption of similarity

[65]In Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45, [2022] AC 995 (“Brownlie”), the Supreme Court reaffirmed the presumption of similarity and identified the circumstances in which it applied. The leading judgment on this issue was given by Lord Leggatt (with whom the other Justices agreed). Lord Leggatt noted that, historically, the rule had been expressed as a presumption that applies where foreign law is recognised to be applicable, but the content of the foreign law has not been provided; in the absence of evidence to the contrary, the foreign law is presumed to be the same as English law (paras 108 and 119). Lord Leggatt emphasised that the presumption did not apply where there was good reason to think that the applicable foreign law was different in a material respect form English law (para 122). The requirement of materiality meant that unless there was a real likelihood that any differences between the applicable foreign law and English law on a particular issue would lead to a different outcome, there was no good reason to put a party to the trouble and expense of adducing evidence of foreign law (paras 124 and 126). Where the presumption applied, it did not alter the burden of proof, but it placed the burden of adducing evidence on a party who wished to displace it (para 125). There was no warrant for applying the presumption unless it was a fair and reasonable assumption to make in the particular case (para 126).[66]Under the heading “General guidance” Lord Leggatt indicated that the presumption was more likely to be appropriate where the applicable law system was another common law system (para 144) and it was less likely to be appropriate where the relevant domestic law was contained in a statute, although this would depend upon the nature of the statute and the statutory provision (para 145). It was always open to the party who asserted that a claim or defence was based on foreign law to adduce direct evidence of the content of the relevant foreign law rather than taking the risk of relying on the presumption; and it was always open to the other party to adduce evidence showing that the foreign law was materially different from the corresponding English law, rather than taking the risk that the presumption would be applied (para 146). There was more scope for relying on the presumption at an early stage of the proceedings when all that a party needed to show was that the claim or defence had a real prospect of success (para 147).[67]In Brownlie, both parties had served reports from experts on Egyptian law and the question was whether the presumption could be applied when there were gaps or shortcomings in the expert evidence, as opposed to no expert evidence at all regarding the foreign law in question. Lord Leggatt held there was no principled reason why reliance on the presumption of similarity should be precluded in such circumstances (para 151); although there could be cases where it would be unfair to allow a party who had adduced evidence of foreign law in support of their case, to invoke the presumption when that evidence proved inadequate (para 152).

The appropriate forum

[68]The correct approach to determining the appropriate forum has been addressed in a number of appellate authorities, including Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (“The Spiliada”) and Lungowe & Ors.v Vedanta Resources plc and another [2019] UKSC 20, [2020] AC 1045 (“Vedanta”). The position was summarised by Popplewell LJ in Limbu & Ors. v Dyson Technology Ltd & Ors. [2024] EWCA Civ 1564, [2025] 2 All ER (Comm) (“Limbu”) as follows:
“22....In determining the appropriateness of the forum, the court looks at connecting factors to determine with which forum the action has the most real and substantial connection (Spiliada at p 478A). These include not only factors affecting convenience or expense, but also other factors such as governing law, the place where the parties reside or carry on business, and where the wrongful acts and harm occurred (Spiliada p 478A-B, Vedanta at [69]). The risk of multiplicity of proceedings giving rise to a risk of inconsistent judgments is only one factor although a very important one (Vedanta at [69]). In applying these connecting factors to cases involving multiple defendants, their relative status and importance in the case should be taken into account, such that greater weight is given to the claims against those who may be described as a principal or major party or chief protagonist: JSC BTA Bank v Granton Trade Limited [2010] EWHC 2577 (Comm) per Christopher Clarke J at [28]. 23. For both service in and service out cases, if the court concludes that the foreign court is more appropriate by reference to connecting factors, applying the relevant burden of proof, the court will nevertheless retain jurisdiction if the claimant can show by cogent evidence that there is a real risk that it will not be able to obtain substantial justice in the appropriate foreign jurisdiction (Vedanta at [88])...This is often conveniently treated as a second stage in the analysis because it usually calls for an assessment of different evidence, but it does not involve a different question: if there is a real risk of denial of justice in a particular forum it is unlikely to be an appropriate one in which the case can most suitably be tried in the interests of the parties and for the ends of justice: Vedanta at [88])...the second stage factors may also be relevant to the first stage in what is judicially a single holistic exercise in seeking to identify where the case can most suitably be tried in the interests of the parties and for the ends of justice.”

Multiplicity of proceedings

[69]At para 33 of Limbu, Popplewell LJ described the exercise the Court is engaged in as one of identifying “where the case can most suitably be tried in the interests of the parties and for the ends of justice” (emphasis in the original). In the same paragraph he cited Lord Briggs JSC’s reference in Vedanta to the Court looking for a single jurisdiction in which the claims against all defendants may most suitably be tried.[70]Lord Briggs had addressed the position where multiple defendants were domiciled in different jurisdictions in Vedanta, as follows:
“68....The concept behind the phrases ‘the forum’ and ‘the proper place’ is that the court is looking for a single jurisdiction in which the claims against all the defendants may most suitably be tried. The Altimo case [2012] 1 WLR 1804 also involved multiple defendants. Although it was decided after Owusu v Jackson [2005] QB 801, it concerned the international jurisdiction of the courts of the Isle of Man, so that the particular problems thrown up by this appeal did not arise. 69. An unspoken assumption behind that formulation of the concept of forum conveniens or proper place, may have been (prior to Owusu v Jackson) that a jurisdiction in which the claim simply could not be tried against some of the multiple defendants could not qualify as the proper place, because the consequence of trial there against only some of the defendants would risk multiplicity of proceedings about the same issues, and inconsistent judgments. But the cases in which this risk has been expressly addressed tend to show that it is only one factor, albeit a very important factor indeed, in the evaluative task of identifying the proper place... 70.In cases where the court has found that, in practice, the claimants will in any event continue against the anchor defendant in England, the avoidance of irreconcilable judgments has frequently been found to be decisive in favour of England as the proper place, even in cases where all the other connecting factors appeared to favour a foreign jurisdiction: see e.g. OJSCVTB Bank v Parline Ltd [2013] EWHC 3538 (Comm) at [16], per Leggatt J.”
[71]In Vedanta, the claimants, who were Zambian citizens living in Zambia, brought claims in negligence against the defendants, a United Kingdom company and its Zambian subsidiary, in relation to injuries and damage allegedly caused by pollution from a Zambian copper mine owned and operated by the subsidiary company. The claimants sued the parent company in this jurisdiction and then sought permission to serve the subsidiary company out of the jurisdiction. The parent company offered to submit to the jurisdiction of the Zambian courts to enable the case to be tried there. The Supreme Court held that in light of this, the claimants had failed to demonstrate that England was the appropriate place in which to bring their claims, given they had the choice of suing both defendants in Zambia and thus avoiding the risk of irreconcilable judgments. Lord Briggs held that Leggatt J (as he then was) had been wrong to hold in OJSC VTB Bank v Parline Ltd that because a claimant had a right to sue the anchor defendant in England, there was no reason why they should be expected or required to relinquish that right in order to avoid duplication of proceedings. Lord Briggs said there was “good reason why the claimants in the present case should have to make that choice, always assuming that substantial justice is available in Zambia” (para 79). The choice the claimants had as to whether to sue the parent company in this jurisdiction did not mean that the risk of irreconcilable judgments “is thereby altogether removed as a relevant factor. But it does in my view mean that it ceases to be a trump card” (paras 82 - 84).[72]Samsung Electronics Co Ltd & Ors v LG Display Co Ltd and another [2022] EWCA Civ 423, [2023] 1 All ER (“Samsung”) addressed appropriate forum in the context of a Part 20 claim for a contribution. Males LJ endorsed the view of the judge below that “if the underlying claim is proceeding here, either because there are English defendants or because England is the natural forum for the claim, that will be a powerful tool and sometimes an overwhelming factor in favour of hearing the contribution claim here” (para 29).[73]Ms McTague placed reliance upon the editors’ recognition in para 6.37.20 of the White Book that there is “no inflexible rule”. In context, the relevant passage states:
“The fact that all possible related claims can be tried in one of the competing fora but not another carries great weight in deciding where the claims can best be tried in the interests of the parties and the interests of justice (see BAT Industries Plc v Windward Prospects Ltd [2013] EWHC 4087 (Comm); [2014] 1 Lloyd’s Rep. 559; [2014] 2 All ER (Comm) 757 (Field J at [70], and authorities referred to there). However, there is no inflexible rule that it could never be in the interests of the parties or in the interests of justice for identical proceedings to be brought against one defendant or group of defendants in one jurisdiction, and against another defendant or group of defendants in another jurisdiction (ibid at [80]).”
[74]Ms McTague also cited passages from Morgan J’s judgment in Satfinance Investment Limited v Athena Art Finance Corp [2020] EWHC 3527 (Ch) (“Satfinance”), in particular his reference at para 40 to the “prospect of proceedings having to take place in more than one jurisdiction will never be enough, in and of itself, to justify the joinder of a foreign defendant”. I do not consider this assists her argument.[75]In Satfinance, the claimant asserted ownership of a valuable painting, claiming it had acquired the rights to it under an agreement with the first and second defendants. The fourth defendant (Athena), who was based in the United States, asserted an entitlement to the painting pursuant to arrangements made with the third defendant. The claimant was given permission to serve Athena out of the jurisdiction pursuant to the Anchor Defendant Gateway, on the basis that the first and second defendants were anchor defendants, there was a real issue which it was reasonable for the English court to try and Athena was a necessary or proper party to the claimant’s claim against the anchor defendants. The Chief Master granted Athena’s application to set aside this order, on the basis that the Anchor Defendant Gateway was not established, as the first and second defendants were not going to defend the claims against them and, in consequence, there was no real issue between the claimant and those defendants, which it was reasonable for the Court to try.[76]At para 40 of his judgment, Morgan J cited the principles relating to the Anchor Defendant Gateway, as identified by Andrews J (as she then was) in Gunn v Diaz [2017] 2 All ER (Comm) 129 at para 86. The passage Ms McTague relies upon appeared in sub-para (ii) of Andrews J’s list of nine applicable principles. Accordingly, this observation related to the requirements for establishing the Anchor Defendant Gateway, rather than the determination of appropriate forum (after a jurisdictional gateway has been made out). Furthermore, self-evidently the prospect of proceedings having to take place in more than one jurisdiction is plainly insufficient in itself to bring a claim within this gateway, given the text of PD 6B para 1.3(3) and the requirements identified in the related caselaw.[77]Morgan J held the claimant had established that the claim came within the Anchor Defendant Gateway on the limited basis that even in the likely event that the first and second defendants did not defend the claim, the claimant would seek a declaration as to ownership from the Court which it was reasonable for the English Court to try (paras 89 – 94). The Judge then considered the appropriate form for the claim. Ms McTague relied on a passage in para 115 where Morgan J said that insofar as the claimant relied upon the prospect of two sets of proceedings that might produce inconsistent judgments “it must still be remembered that the court should be cautious about bringing Athena to this jurisdiction to deal with...[the claim] here on the ground that the alternative to doing so is that there will be two actions in two jurisdictions”. However it is clear from Morgan J’s judgment that this observation was made in the particular context of that case, where the claimant had brought the case within the Anchor Defendant Gateway on a narrow basis (para 105); where it was much more probable than not that the anchor defendants would not themselves defend the claim (para 109); where the dispute between the claimant and Athena was much more significant than the issues between the claimant and the defendants in this jurisdiction (para 111); and, overall, the arguments in favour of New York as the appropriate forum were “appreciably stronger” than the argument in favour of London (para 117).

Place where the wrongful act occurred and the governing law

[78]The place of commission is a relevant starting point when considering the appropriate forum for a tort claim: per Lord Mance JSB in VTB Capital plc v Nutritek International Corpn [2013] UKSC 5, [2013] 2 AC 337 (“VTB Capital”) at para 51. Lord Mance said that “viewed by itself and in isolation, the place of commission will normally establish a prima facie basis for treating that place as the appropriate jurisdiction”. However, he went on to observe that in the context of an international transaction “it was likely to be over-simplistic” to view the place of commission in isolation when considering the appropriate form for resolving the dispute; and he acknowledged that the “significance attaching to the place of commission may be dwarfed by other countervailing factors”.[79]At para 46 of VTB Capital, Lord Mance indicated that it was “generally preferable, other things being equal, that a case should be tried in the country whose law applies”. He said this factor was of particular force if the issues of law were likely to be important and if there was evidence of relevant differences in the legal principle or rules applicable to such issues in the two countries in contention as the appropriate forum.

Practicalities of the litigation

[80]Whilst the practical issues can feature large in the exercise of the discretion, the discretion is not limited to a consideration of this aspect: per Lord Lloyd-Jones in Brownlie at para 78. In this context, he cited the passage at 474E-G of Lord Goff’s speech in The Spiliada, where his Lordship pointed out that use of the Latin tag forum non conveniens should not mislead us “into thinking that the question at issue is one of ‘mere practical convenience’”. Lord Lloyd-Jones emphasised that Lord Goff went on to conclude at 480G that the ultimate objective was “to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice”. Lord Lloyd-Jones also observed that the test for identifying the appropriate forum was an effective mechanism which could be trusted to prevent the acceptance of jurisdiction “in situations where there is merely a casual or adventitious link between the claim and England” (para 79).

Loss of a litigation advantage

[81]In The Spiliada, Lord Goff addressed the significance to be attached to the claimant having some advantage if the proceedings took place in England. He considered a Court should not be deterred from exercising its discretion to refuse permission to serve out simply because the claimant would be deprived of such an advantage, provided the Court is satisfied that substantial justice will be done in the available appropriate forum (482F). However, he went on to say that practical justice demanded that if the Court considered the claimant had acted reasonably in commencing proceedings in this country and did not act unreasonably in in failing to commence proceedings in the other jurisdiction within the limitation period applicable there, it would not be just to deprive the claimant of the benefit of having started proceedings within the limitation period applicable in this country, although it otherwise appeared that the appropriate forum was elsewhere than England (483H – 484A).

The general discretion

[82]The application for permission must satisfy the Court that in all the circumstances it ought to exercise its discretion to permit service of the proceeding out of the jurisdiction (para 62 above). This discretion exists independently of and is not exhausted by the application of the forum conveniens principle, but as the editors of the White Book observe at para 6.37.22, cases that will “turn on the correct exercise of the general discretion alone are likely to be rare”. The D2/D3 Application: analysis and conclusions Serious issue to be tried

The D2/D3 Application: analysis and conclusions

[83]Ms McTague accepted that Article 1902 of the Spanish Civil Code imposed a fault-based duty on D2 in relation to the safety of those using his warehouse. She also accepted that, generally speaking, the Court should approach the question of whether there was a serious issue to be tried by reference to the facts that were pleaded in the Particulars of Claim (para 64 above) and that it was not appropriate for the Court to conduct a mini-trial at this stage.[84]However, she argued that the Claimant had failed to show there was a serious issue to be tried against D2 or, in turn, D3 as contributory negligence could constitute a full defence under Spanish law and the evidence before the Court at this stage showed there was no real prospect of the Claimant establishing fault on the part of D2 in relation to his accident. In this regard she relied upon para 23 of Pearson 1, which I have set out at para 22 above.[85]I reject these arguments. No basis has been shown for going behind the pleaded allegations in the Particulars of Claim at this stage. The Claimant’s pleading sets out a clearly articulated case of fault on the part of D2 (para 16 above) which, on the information before me, is capable of constituting a breach of the duty imposed by Article 1902. The reliance on contributory negligence does not avail D2 and D3 at this juncture. It is impossible for me to form a view at this preliminary stage on whether and, if so, to what extent, the accident was caused by the Claimant’s contributory negligence. I have not heard evidence from any witnesses and I have not been provided with the CCTV that Ms Pearson refers to or any of the documents relating to liability. The evaluation of the evidence is a matter for the trial judge. Furthermore, even if there was some contributory negligence on the part of the Claimant, Ms Pearson can only refer to the possibility that this would be assessed at such a level as to provide D2 with a complete defence to the claim.[86]Accordingly, I am satisfied that the Claimant has established that there is a serious issue to be tried in relation to the merits of his claim against D2 based on Article 1902 of the Spanish Civil Code. It follows that there is also a serious issue to be tried against D3, whose liability is parasitic upon the liability of D2; Ms McTague confirmed that no free-standing issue was raised in respect of D3 for these purposes.[87]In light of this conclusion, it is unnecessary for me to form a view on the other basis upon which D2’s liability is pleaded and I do not do so. I simply observe that having read the decisions of the Spanish Supreme Court that are referred to in Huxford 3 (para 50 above) and exhibited to it, it appears they are concerned with the extent of the jurisdiction of the Spanish employment courts when a claim relating to a workplace accident is brought against both the claimant’s employer and a third party and specifically whether the claim against the third party can be heard with the claim against the employer in the employment courts or has to be heard separately in the civil courts. In this context, the Spanish Supreme Court has held that in certain circumstances the claims should be considered as a whole with the employment courts having jurisdiction to hear the entirety of the claim. Thus, the decisions appear to be solely concerned with the question of jurisdiction and, moreover, it is difficult to see how this caselaw has a bearing on the present case where, on any view, the claim against the Claimant’s employer (D1) will be heard in England and not in the Spanish employment courts.

The appropriate forum

[88]As the parties accept, the relevant factors in this case do not all point in the same direction. I will consider each of these factors, beginning with those that are said to point in favour of the claims against D2 and D3 being heard in Spain.

The place of the accident

[89]I begin by reminding myself that the accident occurred in Spain. The warehouse premises were insured by a policy issued in Spain and which is subject to Spanish law. The immediate damage to the Claimant’s leg was sustained in Spain. As I have explained, this is a relevant starting point when considering the appropriate forum for a tort claim, although the significance of this factor may be outweighed by countervailing factors (para 78 above). Ms Prager KC emphasised the availability of CCTV footage of the accident, suggesting that in these circumstances, the facts of what occurred in Spain were unlikely to be the subject of significant dispute. I consider that is a rather optimistic view. At paras 108 - 109 below, I highlight some of the areas of dispute that go beyond the sequence of events involving the accident. Ms Kinsler KC indicated it was likely that D1 would want D2 to give evidence at the trial of the Claimant’s claim against D1 and this seems to me to be a likely scenario.

The governing law

[90]As the Claimant accepts, Spanish law applies to the determination of liability and quantum in relation to his claims against D2 and D3. I recognise that it is generally preferable for a case to be tried in the country whose law applies (para 79 applies). However, as Ms Prager KC pointed out, Lord Mance’s observation included the important caveat, “other things being equal”. She submits that other things are not equal in this case; and, for reasons I will come on to, I agree. Furthermore, for the reasons I indicate in the next two paragraphs, D2 and D3 overstate the importance of this factor in this particular case.[91]Ms McTague submitted that this factor was of particular significance as there were material differences in the applicable legal principles between English and Spanish law. Whilst the pleaded Spanish law provisions regarding duties upon employers will constitute a material difference from English law if they do have the reach that Huxford 3 suggests (para 50 above), I have already noted that the caselaw provided does not appear to support that proposition (para 87 above). Accordingly, I do not attach significant weight to this particular aspect of alleged difference. For present purposes, emphasis was placed on Article 1902, which appears to give rise to a fault based liability that is not dissimilar to the domestic law position in the law of negligence. Ms Pearson indicates that under Spanish law, contributory negligence may extinguish a claim (para 24 above), but it is put no higher than this being a possibility in the present case; a finding of a high degree of contributory negligence, if warranted on the facts (upon which I have formed no view), can be made in both jurisdictions. Compensation is assessed on restitutio in integrum principles in both jurisdictions (para 52 above). The potential difference regarding the calculation of interest is of limited weight in this overall evaluation.[92]Ms McTague submitted that a trial in this jurisdiction involving an English law claim against D1 and a Spanish law claim against D2 and D3, with (potentially competing) expert evidence as to the position under Spanish law, was an unwieldly and thus undesirable prospect; and this was all the more so, as the trial would also involve evidence from a raft of medico-legal experts. Whilst I acknowledge that such a trial would involve some complexity and multiple issues to be resolved, I do not consider it would present undue difficulties for a High Court Judge, experienced in conducting substantial personal injury litigation. As Ms McTague accepted, the Court is well-used to hearing such cases, including those involving evidence as to Spanish or other foreign law. It will be a case-management decision for further down the line as to whether a split trial of liability and quantum should be directed.

The connection of the parties

[93]I take account of the fact that D2 is a Spanish individual who resides in Spain and that D3 is a Spanish insurer, domiciled in Spain. Ms McTague also said that the funding available to D2 under his insurance policy is limited to €90,000, so that he does not have limitless funds to engage in litigation in another jurisdiction. I accept that weight should be accorded to D2 and D3’s interest in having the claim heard in their own jurisdiction.[94]However, countervailing points of at least similar weight exist. The Claimant and D1 are resident and domiciled in England. The Claimant, like D2, is an individual. D3 is part of the multi-national group of AXA insurance companies. The Claimant’s claim against D1 can only be heard in this jurisdiction, so that if the D2/D3 Application succeeds, he would have to bring two sets of proceedings, one in England and one in Spain, arising out of the same accident. Furthermore, the Claimant would not have the benefit of a conditional fee agreement if he had to litigate against D2 and D3 in Spain. Although the Claimant’s injury was sustained in Spain, the amputation of his leg occurred after he had returned to England and the majority of the damages he claims relate to losses he has suffered and continues to suffer in England, including accommodation costs, care costs, medical costs and earnings-related losses.

Practical convenience

[95]This aspect is linked to the previous factor I have considered. Again, there are elements that tend in favour of both the Claimant’s and D2/D3’s respective positions.[96]As Ms McTague submitted, it is likely that a substantial amount of material, including multiple medico-legal expert reports, will need to be translated into Spanish, so that D2 is able to follow the proceedings, if the trial is held in this jurisdiction. Furthermore, there are liability and quantum documents in Spanish that will need to be translated into English for the benefit of the Claimant, D1 and the Court. D2 and D3 will need to instruct English solicitors. Spanish law experts will need to give evidence in relation to aspects of Spanish law relevant to both liability and quantum. Additionally, Spanish witnesses may well be needed on liability and medico-legal matters. The Spanish witnesses would need interpreters when giving evidence at a trial in this jurisdiction and D2 would require simultaneous translation of the proceedings. D2 and D3 would need to instruct an English solicitor and I have already noted what is said about the funding position for D2 (para 93 above). Ms McTague also relies upon the limited damages that the Claimant would recover from D2 and D3 in light of the policy limitation (paras 25 and 51 above).[97]I acknowledge the force of these points, but, again, the alternative scenario would also entail substantial practical issues and inconvenience. If the claim against D2 and D3 were heard in Spain, extensive documentation relating to the Claimant’s employment, his medical treatment in England, his losses here, along with the reports of multiple medico-legal experts (a number of whom have already been instructed) would need to be translated into Spanish. For reasons I have already indicated, the great majority of the witnesses regarding quantum are based in England and this is also the case for some of the witnesses relating to liability. English witnesses would need interpreters when giving evidence in Spain and the Claimant would require simultaneous translation of the proceedings. Furthermore, on this scenario, many witnesses relating to liability and to quantum, including the Claimant and D2, could well have to give evidence twice, both at the trial in England and at the trial in Spain. The Claimant would have to instruct a Spanish solicitor and Ms Prager KC emphasised that his funding options in this regard would be very limited. As a result of the accident, he is not in employment, he is dependant upon State benefits and is impecunious. She said he would not be able to enter into a conditional fee agreement in Spain, nor have the benefit of after the event insurance or qualified one way costs shifting.[98]Whilst Pearson 1 indicates that English-based witnesses would be able to give their testimony remotely at a trial in Spain (para 26 above), Huxford 3 suggests the position is more nuanced, at least in relation to significant witnesses (para 52 above). In any event, the Claimant suggests that it would be disadvantageous for him for his witnesses on liability and quantum to have to give evidence remotely, when they would be able to give evidence in person at a trial in this jurisdiction.[99]Ms McTague also relied upon the potential difficulties of enforcing a judgment of this Court against D2 and/or D3 in Spain (para 26 above). Huxford 3 suggests these difficulties are overstated (para 52 above). In any event, as Ms Prager KC submitted, it is a relatively unattractive argument for D2 and/or D3 to suggest that a factor in their favour at this stage is that if trial takes place in this jurisdiction they may choose not to comply with a judgment of the English Court; and it would be surprising if a well-known company that was part of a multi-national group, such as D3 failed to do so. In the circumstances, I do not attach weight to the enforceability aspect.[100]I return to questions of potential delay, duplication and increased expense when I consider the next factor.

Multiplicity of proceedings

[101]As the claim against D1 will undoubtedly be heard in England and cannot be litigated in Spain, the only potential options are either:(a) one trial of all the claims in this jurisdiction, or(b) if a claim in Spain proceeds against D2 and D3, two trials, with the Claimant’s claim against D1 being tried in England and his claim against D2 and D3 being tried in Spain. This is not a situation where the options before the Court are single trials in one or other of two competing jurisdictions. Further, it is accepted that the respective claims arise out of the same events and concern the same injuries to the Claimant; that D1 is properly sued in this jurisdiction; and that D1 is a necessary party to a claim of substance which, it is fully engaged in defending. Although faintly suggested by Ms McTague, there is no question of the claim against D1 (the anchor defendant) being merely “casual or adventitious” as Lord Lloyd-Jones referred to in Brownlie (para 80 above); and nor is the claim against D2 and D3 more significant than the claim against D1 (unlike the position in Satfinance, para 77 above).[102]The central concern that arises where there is a multiplicity of proceedings in different jurisdictions is the risk of inconsistent judgments (para 68 above). This is regarded as “a very important” factor in identifying the appropriate forum (paras 68 and 70 above). Consequently, the Court looks for a single jurisdiction in which the claims against all the defendants may most suitably be tried (paras 69 – 70 above). There is only one candidate in the present case, the jurisdiction of England & Wales.[103]Faced with this hurdle, Ms McTague pointed out that this was not an “inflexible rule”. However, as the citation she relied upon indicates, the alternative course of two proceedings against different defendants in different jurisdictions would only be adopted where, exceptionally, the interests of the parties or the interests of justice supported this (para 73 above). That is not the case here. I have already explained at paras 74 – 77 above, why Morgan J’s judgment in Satfinance does not assist D2 and D3.[104]Ms McTague also argued that Mr Fox has a choice that was analogous to the choice that was available to the claimants in Vedanta, so that the risk of irreconcilable judgments is not a “trump card” in this instance (para 71 above). I reject this submission; the positions are not comparable. In Vedanta, the claimants could choose to sue both the defendants in Zambia. Mr Fox cannot sue his former employer, D1, in Spain. Ms McTague said he had a choice whether to simply sue D1 at this stage and await the outcome of those proceedings, since if he was entirely successful against D1 there would then be no need for him to bring a claim against D2 and D3. However, there are obvious reasons which Ms Prager KC highlighted, as to why this does not present itself as an attractive option to the Claimant. D1 has robustly defended the current claim and, amongst other lines of defence, it asserts that the accident was caused by D2. If the Claimant fails or only partly succeeds in his claim against D1, he then faces the prospect of starting a second proceedings against D2 and D3 further down the line in which a substantial number of the same issues would arise and much of the same evidence would need to be heard again, with the attendant considerable delay and increased expense that this would occasion.[105]Allied to this argument, Ms McTague submitted that a single trial in this jurisdiction would not be the most efficient way of resolving the claims because of the complexities that I have already summarised at para 92 above. She suggested that the most efficient course would be for there to be a trial of liability only against D1 in this jurisdiction before any claim was brought against D2 and D3 as this could well obviate the need to bring such a claim and a liability only trial confined to the claim against D1 could be heard relatively speedily. She suggested that this accorded with D1’s own proposal.[106]I do not accept this argument. A trial of liability only against D1 would be likely to delay any resolution of the Claimant’s claims for damages. Ms Prager KC emphasised the strained financial circumstances in which he is currently living with his damaged leg in unsuitable first-floor accommodation. Furthermore, such a trial would only resolve all questions of liability if the Claimant was entirely successful against D1, as I have already noted. If it did not do so, then the Claimant would face the duplicated time and costs involved in then bringing second proceedings in Spain arising from the same events and involving (very largely) the same witnesses. On Ms McTague’s proposal, there would, potentially, be at least three trials: the liability trial against D1; the quantum trial against D1; and the trial/s in Spain against D2 and D3. D1’s proposal was in fact for a split trial at which all liability issues were resolved, rather than the liability issues confined to D1 (para 32 above). Furthermore, if just the claim against D1 proceeds first in this jurisdiction, this would give rise to the risk of irreconcilable judgments that I discuss immediately below. As Ms Prager KC pointed out, D2 and D3 have not undertaken to be bound by the findings made at trial if the claim against D1 was heard first.[107]Ms McTague argued that there was no significant risk of inconsistent judgments in this case because the existence of the CCTV evidence meant that the factual circumstances of the accident could not be disputed. She also suggested that any different outcomes that might arise would stem from the differing legal positions in the two jurisdictions and, as such, would be proper, rather than inappropriate. I do not accept either of these points. There is a clear risk of highly undesirable, inconsistent and irreconcilable findings if claims proceed against D1 in this jurisdiction and against D2 and D3 in Spain, given the considerable overlap in terms of the facts and issues. I will give two examples.[108]First, the Claimant’s pleaded allegations of negligence against D1 are based on the proposition or premise that the arrangements at D2’s warehouse presented a safety risk in that there was insufficient delineation of the loading bays and the walkways, and insufficient separation between pedestrians and the forklift trucks operating in the area (para 16 above). The Claimant’s pleaded case of negligence against D2 also makes these allegations at (f) – (l) of the Particulars (para 16 above). If the claim against D1 is heard in England and the claim against D2 is heard in Spain, both Courts would have to assess and determine these matters, which include an evaluative element (rather than simply reflecting what is shown by CCTV footage of an incident). It is entirely feasible that the two Courts could arrive at inconsistent conclusions as to the existence and or the extent of these alleged risks to the Claimant’s safety. Self-evidently, this would be highly undesirable.[109]Secondly, D1 pleads allegations of contributory negligence in its Defence (para 31 above). Pearson 1 indicates that, if sued, D2 will also aver contributory negligence on the Claimant’s part. Again, the assessment of whether Mr Fox was negligent and, if so, to what degree could lead to highly undesirable irreconcilable conclusions being reached if D1 is sued in this jurisdiction and D2 is sued in Spain in relation to the same events.

Conclusion

[110]As I have already indicated, the Court’s task, generally speaking, is to identify the single jurisdiction in which the claims against all the defendants may most suitably be tried. The claim against D1 is proceeding in this jurisdiction and there is only one candidate in the circumstances; the arguments advanced on behalf of D2 and D3 do not come close to displacing that general position, for all the reasons I have identified. Given the considerable overlap between the claims, it would be highly undesirable for them to be heard in different jurisdictions in terms of the risk of irreconcilable judgments and the likely delay and increased costs involved. Whilst I have also taken all the other relevant factors into account, in the present case there are no countervailing factors that outweigh the compelling reasons that exist for the claims being heard together in this jurisdiction. Accordingly, I am quite satisfied that the Claimant has shown that this jurisdiction is clearly and distinctly the appropriate forum for the trial of his claim against D2 and D3.[111]I mention simply for completeness, that if the Claimant had not succeeded in showing that the action has the most real and substantial connection with this jurisdiction (as I have found), Ms Prager KC did not seek to argue that the matters she raised regarding funding went as far as showing that there was a real risk of a denial of justice if the Claimant’s claim against D2 and D3 was heard in Spain.[112]So far as the general discretion is concerned (para 82 above), I am not aware of any factors that could cause me to reach a different conclusion to that indicated by the application of the appropriate forum principles. The D1 Application: analysis and conclusions Hearing the application

The D1 Application: analysis and conclusions

[113]D1 accepts that the D1 Application was not properly served on D2 and D3 (para 38 above). The parties agreed that there were two options available in the circumstances:(a) the Court could consider the application on the papers and if permission to serve out was granted, once they were served with the proceedings, D2 and D3 could then apply to set aside service and the Court would then list an inter partes hearing; or(b) pursuant to CPR 23.4, the Court could direct that the usual notice requirements were not to apply to service of this application notice, so that the application could proceed with the Court hearing submissions from all parties. Ms Kinsler KC and Ms Prager KC asked me to adopt option (b). Ms McTague indicated that she did not oppose option (b), although she asked that I took account of the circumstances I have summarised at paras 38 - 39 above, when considering the extent to which her clients had adduced evidence of Spanish law. I heard submissions from all parties on a de bene esse basis, indicating that I would address this issue, along with others, in my reserved judgment.[114]I am quite satisfied that it is in the interests of justice to adopt option (b). Although they were not properly served with the application notice, Clyde & Co have had the application and supporting evidence since 8 December 2025. On 17 February 2026, Mr Thompson clarified that an on-notice hearing was sought and that his client was content for D2 and D3 to file evidence before the hearing (para 39 above). Accordingly, Clyde & Co have had a sufficient opportunity to respond to the application and to submit the evidence that they wish to rely upon. Indeed, they have filed Pearson 2 and Ms McTague has had the opportunity to file a detailed skeleton argument. So far as the appropriate forum arguments are concerned, there is significant overlap with the factual matters that Clyde & Co had already been addressed in Pearson 1. In the circumstances I do not consider that D2 and D3 are prejudiced by my considering the application on an inter partes basis at this stage. There was no indication that they would have relied upon a fuller account or further evidence as to the applicable Spanish law, if they have been served earlier; to the contrary, Clyde & Co’s stated position was that it was disproportionate to adduce expert evidence for this hearing (para 42 above). Adopting option (a) would entail unnecessary delay and increase costs and it would involve hearing the submissions on behalf of D2 and D3 at a later stage, in circumstances where Ms McTague was ready, willing and able to make them on 16 April 2026. Indeed, I found it helpful to hear all parties’ submissions and perspectives at the single hearing and I do not accept the suggestion that D1’s application was made prematurely.

Serious issue to be tried

[115]As I flagged earlier, there is a dispute between D1 and D2/D3 as to whether English law or Spanish law governs the additional claim for an indemnity or contribution (which I will refer to as a contribution claim, as a shorthand). Ms McTague accepted that if English law applied, the claim under the Civil Liability (Contribution) Act 1978 raised a serious issue to be tried on its merits.[116]In terms of English law applying, D1 relies upon Article 20 of Rome II which is headed “Multiple liability” and provides:
“If a creditor has a claim against several debtors who are liable for the same claim, and one of the debtors has already satisfied the claim in whole or in part, the question of that debtor’s right to demand compensation from the other debtors shall be governed by the law applicable to that debtor’s non-contractual obligation towards the creditor.”
[117]The position taken by D2 and D3 was only clarified during the hearing. Pearson 2 had simply asserted that Spanish law applied (para 47 above) and whilst Ms McTague’s skeleton argument contended that Article 20 did not result in the application of English law to the Part 20 claim, it did not develop this point. In her oral submissions, she contended that the wording of Article 20 indicated that it was only concerned with the situation where one debtor has already satisfied the creditor’s claim, in whole or in part. It is not immediately clear to me why the law applicable to contribution claims between debtors would only be the law governing the creditor’s non-contractual claim if the debtor seeking a contribution has already satisfied the creditor’s claim (in whole or part), as opposed to where the debtor was facing a claim from the creditor to that effect. Ms Kinsler KC did not accept that Article 20 was as limited in scope as Ms McTague had suggested. Both counsel told me that there was no authority on this point and as Ms Kinsler KC pointed out, resolving this question would likely benefit from seeing how Article 20 is phrased in other languages and from a consideration of the travaux préparatoires (which were not before me at this stage).[118]On the premise that Article 20 does not apply to the present circumstances (as she contends), Ms McTague identified the applicable provisions of Rome II as being Article 4 or Article 10. She drew attention to Article 15(b) which provides that the law applicable to non-contractual obligations under this Regulation governs (amongst other circumstances) “any division of liability”. Article 4 sets out the general rules in relation to torts. As potentially material, it provides:
“1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. 3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”
[119]Ms McTague submitted that as the Claimant’s accident and thus the immediate damage occurred in Spain, Article 4.1 indicated that the law of Spain applied. In the alternative, that as the contribution claim was brought against Spanish defendants and concerned events in Spain, there was a manifestly closer connection with Spain rather than England.[120]In the alternative, Ms McTague relied upon Article 10, which indicates that it applies to a non-contractual obligation “arising out of unjust enrichment” concerning a relationship between the parties that is closely connected with that unjust enrichment. Article10.1 states that the non-contractual obligation shall be governed by the law that governs that relationship. Article10.2 says that where the law applicable cannot be determined on the basis of para 1 and the parties have their habitual residence in the same country where the event giving rise to unjust enrichment occurs, the law of that country shall apply. Article10.3 provides that where the law applicable cannot be determined on the basis of paras 1 or 2, it shall be the law of the country in which the unjust enrichment took place.[121]Ms Kinsler KC submitted that if Article 4 did apply, given the relevant damage at this stage was D1’s damage (flowing from his liability to the Claimant), the damage would have occurred in England, so that this was a further basis for concluding that the contribution claim was governed by English law. She also indicated that there was considerable authority on the scope of Article 4, which was not before the Court as suggested reliance on this provision had been raised for the first time during oral submissions.[122]For the reasons I have just explained, I am not in a position to decide at this stage whether English law or Spanish law applies to D1’s contribution claim. However, the serious issue to be tried test is not a high one (para 64 above) and on the limited material before me, there is at least a realistic prospect of D1 establishing that English law applies, either pursuant to Article 20 or Article 4 of Rome II. (I have not formed a view on Article 10, upon which I was addressed very briefly and was shown no authorities as to its scope.) The significance for present purposes, is that D2 and D3 accept that if English law applies, there is a serious issue to be tried (para 115 above). I therefore accept that D1 has satisfied the necessary requirement. I add for completeness that Ms Kinsler KC submitted that as the Part 20 claim was predominantly pleaded on the basis of English law, the onus lay on D2 and D3 to establish that the law of Spain applied if they took issue with the Claimant’s pleaded position. For the avoidance of doubt, I would arrive at the same decision on this issue, irrespective of where this onus lies. However, I have taken account of the fact that Ms Kinsler KC had a very limited opportunity to address the governing law issue because of the stage at which the arguments regarding Rome II were raised.[123]Furthermore, even if I had formed the view at this stage that D1’s claim was or was likely to be governed by Spanish law, I would nonetheless have concluded that D1 has established that there is a serious issue to be tried in respect of the merits of the contribution claim. I will explain why briefly.[124]D1 bases its claim against D2 on Article 1145 of the Spanish Civil Code (para 34 above). Article 1145 provides:
“Payment made by one of the joint and several debtors extinguishes the obligation. The debtor who made the payment may only claim from his co-debtors the share corresponding to each of them, together with interest on the amount advanced. Failure to fulfil the obligation due to the insolvency of a joint and several debtor shall be borne by the co-debtors in proportion to the share of the debt corresponding to each of them.”
[125]Pearson 2 asserts that such a claim only arises once the joint debtor has paid the creditor (para 47 above). Thompson 2 indicates the contribution claim can be brought at an earlier stage under procedures equivalent to Part 20 of the CPR (para 54 above). It is not possible for me to arrive at any conclusion in relation to the parties’ positions when all I have been provided with is the wording of the Article and a brief summary of what, respectively, Ms Pearson and Mr Thompson have been told about the Spanish legal position by Spanish lawyers.[126]Arguably, this is a situation in which the presumption of similarity may be applied, as the evidence at this stage does not establish that Spanish law is different to the law in this jurisdiction in a material respect, that is to say that a difference between the respective laws would lead to a different outcome in relation to D1’s contribution claim against D2 (paras 65 – 67 above).[127]In any event, as O’Farrell J observed in Mariana, the Court should be cautious about deciding an issue of foreign law on a summary basis, as it is a question of fact which the trial judge is required to determine on the basis of expert evidence deployed by the parties (para 63 above). In Mariana, O’Farrell J had expert reports on the relevant issues of Brazilian law before her (paras 44 – 53). She concluded that there was a serious issue to be tried; the clear dispute between the experts was not one that was suitable for determination on a summary basis and the competing arguments should be subject to scrutiny and challenge through cross-examination and submissions at trial (para 56). Although the circumstances are rather different here, in that I have much more limited material available to me, it would also be inappropriate for me to try and resolve the parties’ dispute about the scope and/or operation of Article 1145 on a summary basis. I am not able to discount Mr Thompson’s position at this stage. I have not been referred to or provided with any other Spanish law provisions or any Spanish cases that address the interpretation of Article 1145. On one view, Article 1145 appears to be primarily concerned with the level of the contributions that can be claimed from the co-debtors. The scope of Article 1145 and its applicability to D1’s claim against D2, involves questions of fact that require expert evidence to be heard and assessed at the trial.[128]The position is similar in relation to D1’s claim against D3 pursuant to Article 76 of the Insurance Contracts Law, which provides:
“The injured party or his/her heirs shall have a direct action against the insurer to require compliance with the obligation to indemnify, without prejudice to the insurer’s right to seek recourse against the insured where the damage or loss caused to a third party is due to the insured’s wilful misconduct. The direct action shall be immune from any defences that the insurer may have against the insured. However, the insurer may raise the defence of the injured party’s exclusive fault and any personal defences it may have against that party. For the purposes of exercising the direct action, the insured shall be obliged to disclose to the injured party or his/her heirs the existence and content of the insurance contract.”
[129]Pearson 2 asserts that the right of action under Article 76 belongs solely to the injured party (para 48 above), whereas Thompson 2 contends the provision is aimed at shielding the injured party from defences that the insurer could raise against the insured and that D1 has standing to bring D3 into the proceedings at this stage (para 54 above).[130]Arguably, this is also a situation in which the presumption of similarity applies, as the evidence at this stage does not establish that Spanish law is different to the law in this jurisdiction in a material respect, that is to say that a difference between the respective laws would lead to a different outcome in relation to D1’s contribution claim against D3.[131]In any event, I am not able to discount Mr Thompson’s position at this stage. I have not been referred to or provided with any other Spanish law provisions or Spanish cases that address the interpretation of Article 76. The wording may afford some support for Mr Thompson’s position. The scope of Article 76 and its applicability to D1’s claim against D3 involves questions of fact that require expert evidence to be heard and assessed at the trial.

The appropriate forum

[132]In opposing the D1 Application, D2 and D3 largely relied upon the factors I have already discussed in relation to their own application. In addition, Ms McTague highlighted that the Part 20 claim was concerned with the respective liabilities of the Defendants and thus with matters that occurred primarily in Spain, rather than England. Ms Kinsler KC relied upon factors analogous to those advanced by Ms Prager KC in resisting the D2/D3 Application. She also emphasised that D1’s primary case was that the Part 20 claim was governed by English law.[133]I have already decided that this jurisdiction is the appropriate forum for hearing the Claimant’s claims against all defendants, including D2 and D3. There would be a considerable risk of irreconcilable judgments and of unnecessary expense and delay if I were, nonetheless, to conclude that D1’s contribution claim against D2 and D3 should be heard in a different jurisdiction. D1’s claim will involve an assessment of the relative fault of D1 and D2, which will also be central to the trial of the Claimant’s claims against the Defendants. D1 relies upon the same allegations of negligence on the part of D2 in the Part 20 claim as it raises in its Defence of the Claimant’s claim (paras 29-30 and 33 above). There is a very considerable degree of overlap in terms of the evidence and the issues. The claims essentially involve one factual investigation and are closely bound up together. It is plainly in the interests of justice that the contribution claim is heard in the same proceedings as the Claimant’s claim against the Defendants. If this were a domestic case, there would be no question that D2 and D3 would be joined as defendants to the Claimant’s claim and to D1’s additional claim under the Civil Liability (Contribution) Act 1978. As Males LJ observed in Samsung, if the underlying claim is proceeding here, this will be a powerful and sometimes an overwhelming factor in favour of the contribution claim being heard in this jurisdiction (para 72 above). This is such a case.[134]Accordingly, I am quite satisfied that D1 has shown that this jurisdiction is clearly and distinctly the appropriate forum for the trial of its contribution claim against D2 and D3. There are no factors suggesting that exercise of the general discretion should lead to a different conclusion.

Outcome

[135]For the reasons I have identified at paras 83 – 86, the Claimant has shown that there is a serious issue to be tried regarding the merits of his claims against D2 and D3. He has also established that England and Wales is the appropriate forum for hearing his claim against D2 and D3 (paras 88 – 110 above). It is accepted that one or more of the jurisdictional gateways in PD 6B apply. Accordingly, I refuse the D2/D3 Application to set aside service of the proceedings on them.[136]For the reasons I have identified at paras 115 – 131, D1 has shown that there is a serious issue to be tried regarding the merits of its Part 20 claim against D2 and D3. D1 has also established that England and Wales is the appropriate forum for hearing its contribution claim against D2 and D3 (paras 132 – 134 above). It is accepted that the PD 6B para 3.1(4) jurisdictional gateway applies. Accordingly, I grant D1’s application to serve D2 and D3 out of the jurisdiction.[137]I will give the parties the opportunity to file written submissions on consequential matters including costs and appropriate directions.