23 November 2021 | Comment | Article by Ciaran McCabe
Lawyers at Hugh James have successfully defended an appeal challenge over whether it was right for a UK court to try a personal injury case of a British tourist who was injured in a road traffic incident in Poland, even though he was seeking medical care and rehabilitation in Germany when his clam was issued.
The case centres on the claimant, Nafis Chowdhury, a University of Cambridge Graduate and City Analyst. In August of 2017, Mr Chowdhury flew to Poland for a wedding with his girlfriend where he was a rear seat passenger in a Mercedes, which was involved in a road traffic collision with a Volkswagen Lupo. He was in hospital in Poland for five days, was unfit to fly for approximately a month, and has since continued to suffer from the effects of severe polytrauma including a brain injury.
The following year, Mr Chowdhury sought medical treatment for his complex injuries at a leading specialist European hospital in Heidelberg, Germany.
The Defendant, an insurance company based in Poland which insured the other car involved in the accident, admitted liability in 2019. Mr Chowdhury instructed the Hugh James team of specialist personal injury lawyers, to support his claim, because of their outstanding reputation. The claim was issued in August 2020.
Despite admitting liability, the Defendant contested the jurisdiction of the courts of England and Wales to try the case, arguing that that neither it, nor the Claimant, were domiciled within the jurisdiction at the time. However, Mr Chowdhury insists he was domiciled in England at the relevant time, because it was his permanent home.
In January 2021, the Defendant’s application was heard and dismissed by Master Brown, ruling that Mr Chowdhury was domiciled in England and therefore entitled to bring proceedings in England.
The Defendant appealed this decision and the appeal was heard on 9 November 2021. In his judgment, on 12 November 2021, the Judge Mr Justice Ritchie upheld the Master’s decision. Considering jurisdiction and residence in the absence of physical presence, Mr Justice Ritchie found no valid ground for overturning the original ruling. He noted that the Claimant lived in England before the road traffic accident, lived in England after the road traffic accident, and only went to Germany for medical treatment, fully intending to return when that treatment had run its course.
He also concluded that “residence in England is not lost merely by reason of travel, even long duration travel, due to work.” He added that “ownership of property is not the determinant of residence and I so rule. Travellers (the Travelling Community) do not own real property (bricks and mortar). Nor do the homeless. Both are equal under the law with all others in relation to domicile.”
Responding to the judgment, Ciaran McCabe, Partner in the Hugh James Catastrophic Injury team said today:
“This is an important judgment in that it brings clarity to the law in relation to residence and domicile when issuing court proceedings in England and Wales. As a leading national litigation firm, it has been a fascinating point of law to be involved in – and a case which has implications for all types of litigation, especially post Brexit, following the UK’s withdrawal from the European Union.”
The full judgment is now available online.