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Panagaki v Minetta SA General Insurances - Katherine Deal, 3 Hare Court

12/06/15. Panagaki v Minetta SA General Insurances: Judgment 14 May 2015, reported Lawtel 15 May 2015. In March 2014 the Claimant, then aged 22, sustained catastrophic injuries in a road accident in Greece when the taxi in which she was travelling overturned. She had been born in Greece to a British mother and a Greek father. She held dual nationality and used a British passport. Her parents had a house in Athens where she grew up and where her parents and brother continued to live. Her grandmother lived in London, where the Claimant spent holidays growing up. The Claimant went to school in Greece and commenced a 4 year degree course in Edinburgh in 2012. Her tuition fees were paid by the Student Awards Agency for Scotland presumably, although this was not conceded, on the basis that she had applied as a Greek citizen rather than as a British citizen. The accident happened as she was returning to her parents’ home for a short visit.

Whilst still in hospital in Athens the Claimant issued an application against the taxi’s insurers seeking an interim payment to enable her to arrange a private transfer to Stoke Mandeville hospital for treatment for at least 6 months. The application was refused and the Claimant’s family and friends funded her transfer. Some 6 months after her arrival in the UK, all of which had been spent as an inpatient, the Claimant issued proceedings in England seeking £5m+ in damages from the Greek insurers, the Greek taxi driver and the Greek taxi owners pursuant to Greek law. Unaware of this, the insurers commenced proceedings in Greece 2 days later seeking a declaration as to the extent of its liability to her.

Unusually, after service of proceedings, the Claimant made an application to the English court for a positive declaration that the English court had jurisdiction, coupled with an application to injunct the insurers from proceeding in Greece.

The application was heard at very short notice at the same time as the hearing of the insurers’ application to challenge jurisdiction. The driver and taxi owners had not been served and so the challenge was between the Claimant and the insurers alone.



Hearing

By the time of the hearing there was no dispute that the English proceedings had been commenced first in time and so the question of jurisdiction fell to be considered first by the English court. There was no dispute between the parties that, if the Claimant was domiciled in England or Wales as at the date she issued the claim form in England, she was entitled to pursue her claim against the Greek insurers in the English court pursuant to Articles 9(1)(b) and 11(2) of the Judgments Regulation 44/2001, FBTO v Odenbreit [2008] IL Pr 12. She maintained that she was so domiciled; the insurers maintained that she was not.

The test for domicile is that set out in Schedule 1, paragraph 9 of the Civil Jurisdiction and Judgments Order 2001. An individual is domiciled in the UK only if she is resident in the UK or the particular part of the UK and the nature and circumstances of her residence indicate that she has a substantial connection with the UK or the particular part of it. Such a connection is presumed after 3 months’ residence, unless the contrary is proved. The parties agreed that, although the burden was on the insurers to prove the absence of connection under the Order, the burden overall lay on the Claimant to establish that she had the better of the argument that the English court had jurisdiction, Canada Trust v Stolzenburg (No.2) [1998] 1 WLR 547; Cherney v Deripaska [2008] EWHC 1530 (Comm).

The insurers’ argument was two-fold: first, the Claimant’s stay in hospital lacked sufficient permanence or continuity to be regarded as ‘residence’ for the purposes of underpinning domicile; and secondly, that she did not a substantial connection with England sufficient to establish English domicile. It additionally disputed that the English court could grant an injunction to prevent the Greek court from entertaining the insurers’ claim in Greece.

Judgment

Mr Justice Singh found for the insurers on both points. The Claimant was not domiciled in England and Wales at the date of issue. The requirement that ‘residence’ should involve some degree of continuity and permanence was not satisfied by her prolonged period as an inpatient (the Claimant having resiled during the hearing from her original case that she was resident at her grandmother’s home, presumably on the basis that she demonstrably was not there as at the date of issue). She had transferred to Stoke Mandeville because it was the best place for treatment of her extremely serious injuries, and not because she was intending to make, or had made, her home in England. Nor did she have a substantial connection to England. The best evidence as at the date of issue was the evidence presented to the Greek court in 2014, in which she had declared that her home was in Greece at her parents’ address and her stay in England was for the purposes of treatment. Her connections to England consisted of her maternal grandmother living here, and her using that address as one for correspondence during the period she was studying in Scotland. As a result, the Claimant could not bring her claim in England. A declaration was made that the English court did not have jurisdiction and the claim form was set aside.

Singh J additionally dismissed the Claimant’s application for an injunction on the basis that this was, as submitted by the insurers, entirely at odds with the jurisdictional regime of the Judgments Regulation and the mutual trust and confidence courts of one Member State must place in courts of another Member State to comply with the Regulation. Since the Claimant had expressly indicated that she did not seek a reference to the CJEU, the Court was bound to follow Turner v Grovit [2004] ECR I-663, [2005] 1 AC 101.

Conclusions

This was an interesting case, which will no doubt be reported, involving apparently for the first time whether a prolonged period of hospitalisation can amount to residence. Singh J emphasised that the question is entirely fact-sensitive. Although he did not doubt that there could be cases where a stay in hospital did amount to residence, he was particularly influenced by the Claimant’s evidence to the Greek court in summer 2014 that she was seeking treatment at the hospital in England, which she expected would take at least 6 months. He did not consider that, as at the date of issue, she was making her home in any meaningful way at Stoke Mandeville.

The case was also interesting for the emphasis on what is meant by a ‘substantial connection’. Again, Singh J considered that the best evidence as to the Claimant’s connection when she issued in England was that provided to the Greek court some months earlier. This was evidence given before the Claimant was aware that the insurers challenged her domicile in England and so could not be said to be self-serving. The Claimant had given her ‘home’ and her ‘residence’ as her family home in Athens. There was no suggestion that she really considered her home to be England or that her connection extended beyond having family there whom she visited. She had never lived in England. To the extent that she had a connection to the UK, it was far more to Scotland, where she had chosen to live and study.

The Claimant has sought permission to appeal from the Court of Appeal, with a request that the application be expedited. The basis of the application is not yet known. In the meantime the Greek court apparently continues to determine the issues between the parties.

Katherine Deal acted for the insurers in this case.

Katherine Deal
3 Hare Court

Image cc flickr.com/photos/kristoffer-trolle/17088729869

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