The UK and the United States of America have long enjoyed a special and valuable relationship. According to the Department for Business & Trade, US goods and services trade with the UK totalled an estimated £322.1 billion in the four quarters to March 2025. 

In the same year, US foreign direct investment in the UK represented nearly a quarter of all UK foreign direct investment projects.

This valuable economic relationship is set to continue as the two countries build on the trade deal agreed earlier in 2025.

So, big numbers and big business but where there is business there will also be disputes. Cross-border disputes are inevitably more complex, time-consuming and expensive to resolve. And it is not just a question of where to bring proceedings. Potential litigants also need to consider where any judgment will need to be enforced.

The good news for businesses involved in transatlantic trade is that the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague 2019) came into force for the UK on 1 July 2025. The US is also a signatory of this convention which provides for the recognition and enforcement of judgments between contracting states. While the US has not yet ratified Hague 2019, it is a major step forwards in the ease of enforcement of judgments between the two nations. While in future the position may be simpler, it is important to note that currently, there is no reciprocal agreement in place between the US and the UK for the mutual recognition and enforcement of judgments. It is therefore essential for the parties to understand what this means from the outset to ensure that any judgment obtained can be enforced where it matters – for example, where the defendant has readily realisable assets.

This article examines the enforcement of a judgment obtained in the US in the English courts.

Enforcement in England

Due to the absence of a reciprocal enforcement agreement, a US judgment can only be enforced in England at common law by bringing a new action under which the judgment is seen as a simple contractual debt. New proceedings are therefore issued in the English court for payment of the ‘debt’.

For the court to consider enforcing the debt, it must be satisfied of six elements. The burden of proving that one of these elements has not been satisfied is on the party resisting the enforcement proceedings (ie the judgment debtor).

The required six elements for enforcement

Final and conclusive
The US judgment to be enforced must be final and conclusive in the court which handed down the judgment. If the decision is subject to an appeal, the English court will likely stay the enforcement proceedings pending the outcome of the US appeal. It should also be noted that the judgment cannot be inconsistent with a prior judgment on the same subject matter and between the same parties. Interim and provisional orders, as well as forms of injunctive relief, are not enforceable.

Ascertainable and definite sum of money
The judgment to be enforced must be for an ascertainable and definite sum of money. For example, a US judgment that is for a declaration rather than payment of a sum of money cannot be enforced in England. Furthermore, it must not relate to taxes, a fine, or any other form of penalty usually – but arguably not always – payable to the state.

Jurisdiction
The English court must be satisfied that the US court had jurisdiction to hear the claim. This will be decided according to English private international law.

The US court will be considered to have had jurisdiction if the judgment debtor:

• was present in the US at the time proceedings were issued (the burden of proving this will be on the party seeking enforcement); or
• has otherwise submitted to the jurisdiction of the US court. For example, through a prior contractual agreement or by having voluntarily appeared in the proceedings other than to dispute jurisdiction.

Parties should also be aware that there are certain steps that do not amount to submission to an overseas court’s jurisdiction. In particular, the judgment debtor shall not be regarded as having submitted to the overseas court’s jurisdiction if they have only appeared (conditionally or otherwise) in the proceedings for any one or more of these reasons:

• to contest the court’s jurisdiction;
• to ask the court to dismiss or stay the proceedings on the ground that the dispute should be submitted to arbitration or to the courts of another country; or
• to protect or obtain the release of property seized or threatened with seizure in the proceedings.

The question of whether a party has submitted to jurisdiction is to be inferred from all the facts.

In considering jurisdiction, it is also important to assess whether a statutory defence may be available under section 32(1) of the Civil Jurisdiction and Judgments Act 1982. In summary, this states that a foreign judgment will not be recognised or enforced in the UK where it was obtained contrary to any agreement under which the dispute in question was to be settled. This may apply where an agreement contains an arbitration or jurisdiction clause, for example.

Fraud
An English court will refuse to recognise or enforce a judgment obtained by fraud where the judgment would not have been made but for the fraud. This is a rare exception to the general rule that the English courts will not re-open and re-examine the merits of the underlying case.

Public policy
An English court will not recognise or enforce a US judgment if to do so would be contrary to English public policy or the European Convention on Human Rights. It is rare that a US court will hand down a judgment that goes against English public policy. One such example, however, is an award that is punitive or penal in nature.

Natural justice
A judgment will not be enforced if it was awarded in a manner contrary to natural or substantive justice. Arguments on this point most frequently arise in relation to whether the judgment debtor was given sufficient notice of the underlying US proceedings to enable them to defend the claim.

A judgment obtained without one party having a proper opportunity to defend itself could potentially, depending on the facts of the case, be deemed a breach of natural justice rendering the judgment unenforceable. Similarly, the English court might refuse to enforce a judgment where no due service has been made. That said, the UK courts will look at the individual facts of each case.

Method of enforcement

If the judgment debtor is located in the US, the first step for the enforcing party on issuing new proceedings will be to apply to the English court for permission to serve the claim form on the judgment debtor out of the jurisdiction. If the judgment debtor has assets in the UK, permission will likely be granted.

It should be noted that the deadlines to file an acknowledgement of service, an admission or a defence are extended when the defendant is located outside the jurisdiction. If the defendant files an acknowledgement of service, admission or a defence without first filing an acknowledgement of service, then it must do so no more than 22 days after service of the particulars of claim. If it files an acknowledgement of service, the deadline for then filing a defence is extended to 36 days after service of the particulars of claim.

As mentioned above, the court will not usually reconsider the merits of the underlying judgment, even if it disagrees with it, unless there is a compelling reason to do so. Consequently, the usual approach will be for the claimant under the new proceedings to apply for summary judgment, which the court will usually grant. Summary judgment enables a party to enforce a US judgment in the English courts quickly, without having to go through the hassle and expense of full blown proceedings and a full trial.

Pursuant to section 24(1) of the Limitation Act 1980, any action to enforce a foreign judgment must be brought within six years of the date on which the judgment became enforceable.

Hague 2019

By contrast to the common law process, Hague 2019 would provide an automatic right to recognition and enforcement of US judgments in the UK. To be enforceable under Hague 2019, judgments must fall within a list of jurisdictional filters. If at least one of these is met, the judgment can be recognised and enforced. Hague 2019 has been implemented in the UK using a ‘registration model’, meaning that judgment creditors need to apply to register the foreign judgment. Should the US ratify Hague 2019, this would be a significant simplification of the current requirements that need to be met to enforce a US judgment in the UK.

Conclusion

Given the ‘special relationship’ between the US and the UK (and the existence of the New York Convention which provides for the extensive enforcement of international arbitration awards), it is surprising that, until now, there has been no reciprocal agreement in place between the US and UK to enforce court judgments. Ratification of Hague 2019 by the US would provide a much simpler and more cost-effective way to enforce judgments.

In the meantime, and pending ratification, the procedure for enforcing a US judgment in the UK is less straightforward and potentially more expensive than it might otherwise be. However, these factors are mitigated somewhat by the availability of summary judgment or judgment in default if no response is forthcoming from the judgment debtor.

Parties seeking to enforce a US judgment against a judgment debtor with assets in the UK (or indeed a UK judgment in the US) would be well advised to seek local advice at an early stage.

This is an updated version of an article previously published on 15 November 2021.

In today’s global economy cross-border disputes are increasingly common, and so is the need for US litigants to obtain evidence from abroad. Thanks to strong trade and business ties between the US and the UK, American companies often require access to documents or information held by individuals or entities in the UK (references to the UK in this article mean the legal jurisdiction of England and Wales). 

The difference between the two legal systems in relation to document production and preservation has been under the spotlight recently as they grapple with the particular problems posed by generative AI platforms and the potential for cross-border data conflict.

Where to start

The starting point should always be to consider asking the relevant individual/entity whether they will voluntarily provide the documents and information. If they are willing to co-operate, the lawyers for the respective parties can simply agree terms for the provision of evidence. The parties will need to ensure that all procedures undertaken satisfy the requirements of both the local court and the rules in the UK. They will also need to consider how to address the issue of any costs and expenses arising out of the provision of the evidence.

Of course, in the context of a commercial dispute, it is entirely possible that a party or non-party to the proceedings will be uncooperative. So what steps should you take to compel the production of documents or the taking of a deposition for use in US proceedings, from an individual or entity based in the UK?

This situation is governed by the Convention on the Taking of Evidence Abroad in Civil or Commercial matters (Hague Evidence Convention), to which the US and UK are both signatories.

The procedure

The procedure is initiated by the US court in which the proceedings are taking place. The US court will make a request to the Senior Master of the High Court of England and Wales (as the designated central authority of the signatory state where the evidence is located), via a ‘letter of request’, that the English court takes evidence, and transmits that evidence back to the foreign (ie US) court for use in the foreign judicial proceedings.

The letter of request must contain certain information such as:

• details of the authority requesting its execution;
• details of the authority requested to make the order;
• information regarding the parties in the current proceedings and their representatives, if any;
• details of the nature of the proceedings; and
• details of the evidence to be obtained, or other judicial act to be performed (ie the taking of a deposition).

Where appropriate, the letter of request should also specify:

• details of the people sought to be examined;
• a list of the questions to be put to the proposed witnesses (or a detailed statement of the subject matter about which they are to be examined);
• a list of any documents or other property to be inspected;
• any requirement that the evidence is to be given under oath or affirmation, along with any special form to be used; and
• details of any specific procedure(s) which the US federal or state courts require to be followed.

The English court derives its authority to act in aid of a foreign court from the Evidence (Proceedings in Other Jurisdictions) Act 1975 (EPOJA). Consequently, any letter of request received by the English court will likely only be complied with if the court is satisfied that the following conditions under the EPOJA are met:

• the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in another part of, or outside, the UK; and
• the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted, or whose institution is contemplated, before the requesting court.

An application for an order under the EPOJA must be made to the High Court of England and Wales, be supported by written evidence, and be accompanied by a copy of the letter of request from the foreign court which gave rise to the application. The application may be made without notice to the UK based party from which the evidence is sought.

If an application is made that satisfies the two conditions above, the English court has the discretion to make an order to give effect to the application for assistance. Such an order may direct the UK based party to produce specific documents or order the examination of a witness (a deposition). If the order(s) granted are not complied with, they can be enforced through the English court. Non-compliance by the UK based party may therefore result in cost sanctions against it or other enforcement measures such as contempt of court proceedings.

Disclosure of documents

The English courts are very strict regarding the scope of a letter of request. A request cannot be wide-ranging, investigatory in nature, or seen to be a ‘fishing expedition’. If documentary evidence is sought, those documents must be clearly identified. Either individual documents or a specific, clearly identified category of documents must be named. Furthermore, the court must be satisfied that the documents actually exist; the mere suspicion or suggestion that they may will not suffice.

The English court rules on the disclosure of documents are very restrictive in comparison to the equivalent discovery rules in the US (for more information, see our comparative article here). The English courts will not execute a letter of request where the evidence sought is not of the type permitted by the English rules of disclosure, or where it is impossible or impractical for the requested party to provide the documents or information. For example, an order will not be made against a non-party to the US proceedings requiring them to state what relevant documents they have or had in their possession, custody and control. Further, the court will only require specific documents to be disclosed which are adequately particularised in the letter of request.

Where information rather than evidence is sought, the court may set aside the request as ‘oppressive’. It is not necessary to prove an improper purpose on the part of the party seeking the information, it is sufficient that oppression (for example in the form of allowing the requesting party to obtain testimony and documents before preparing proceedings) is the substantive consequence. (Byju’s Alpha Inc v OCI Ltd & Ors [2025] EWHC 271 (KB).

Deposition of witnesses

If the English court orders an examination of a witness, the court may specify that this evidence be taken before any fit and proper person nominated by the party applying for the order, or by an examiner of the court. Usually, the deposition will take place in local (ie UK) law firm offices, be recorded, and the questioning will be undertaken by a US lawyer qualified  in the jurisdiction where the case originated. It is common for English solicitors to also attend to ensure that all applicable English procedural rules are followed.

Witnesses subject to an examination order will be afforded the same protections under legal professional privilege as would be available to them under English law or the applicable US federal and state laws.

When the deposition is completed, the examiner will send a copy to the Senior Master of the High Court of England and Wales, who will make the appropriate arrangements to send it back to the relevant US federal or state court.

There are no time limits specified in either the Hague Evidence Convention or the English Civil Procedure Rules for any of the processes detailed above. However, the Hague Evidence Convention indicates that letters of request ‘shall be executed expeditiously’.

Normally, an application for production of documents or the examination of a witness under the EPOJA will be made without notice to the party in question (thereby expediting the process). However, making the application without notice does carry the risk that the party subject to the order can later take steps to challenge it and potentially have it set aside.

Conclusion

As soon as a party to US court proceedings realises that evidence held by a UK based individual or entity will be key to their case, they should instruct local English solicitors without delay. Timely steps can then be taken to prepare any letters of request and appropriate applications. This can be crucial to a case, to preserve the evidence, and to avoid falling foul of any procedural and discovery deadlines.

This article is intended to provide a general summary of the law in this area rather than comprehensive guidance or legal advice. Legal advice should be sought in relation to specific circumstances. This is an updated version of an article originally published in 2018. The law and practice in this note is stated as at October 2025.

As part of the bicentennial celebration of Thomas Cooper’s founding in 1825, Penningtons Manches Cooper is spotlighting a different standout case conducted by the firm across its two centuries of English legal practice for each month of 2025.

This seventh instalment focusses on the decision in Vardinoyannis v The Egyptian General Petroleum Corporation, The Evaggelos Th [1971] 2 Lloyd’s Rep 200; the only case in which a warranty of safety was ever implied into a charter party.

That same year, Thomas Cooper began trading as ‘Thomas Cooper and Stibbard’, having finally combined the names of Thomas Cooper & Co and Stibbard Gibson & Co, which the partners had been keeping alive since the merger of those practices in 1878. The new name would stick around for some 38 years.

The word ‘safe’

Recorded cases on port safety date back to 1861, affording the common law plenty of time to whittle its way towards certainty on the meaning of a safe port. Earlier references in The Sagoland (1932) 44 Ll.L Rep 136 and The Stork [1955] 1 Lloyd’s Rep 373 discernibly paved the way for Lord Justice Sellers to deliver one of history’s most oft-quoted pieces of maritime dicta in the seminal decision of The Eastern City [1958] 2 Lloyd’s Rep 127:

‘… a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship… .’

This conceptualisation would also stick around, meeting with the approval of the House of Lords in The Evia (No. 2) [1982] 2 Lloyd’s Rep 307 and the Supreme Court in The Ocean Victory [2017] 1 Lloyd’s Rep 521.

In order to so curtail a charterer’s discretion, entitling them to only choose safe ports for the vessel, the mere insertion into the charter party of the word ‘safe’ in relation to the subject port is normally enough. The law of safe ports presents itself as an edifice of common law jurisprudence, rendered contractually effective by this one-word express term.

Perhaps this is why the question of whether a warranty of safety ought to be implied where none is expressed is of some fascination to lawyers. In The Stork, at first instance, Mr Justice Devlin observed the importance of implying ‘some condition about safety to prevent the making of a derisory nomination’, and as early as Ogden v Graham (1861) 1 B&S 773, Mr Justice Wightman acknowledged that ‘I do not know what force can be given to the word ‘safe’ when added to the word ‘port’.’

Employed in a war zone

In the aftermath of the Six Day War of June 1967, an uneasy ceasefire persisted between Israel and Egypt with the port and Gulf of Suez within reach of both sides’ artillery. Vessels traded in and out of Suez, but sporadic shelling would cause the occasional casualty.

Against this backdrop, the Greek tanker Evaggelos Th was time chartered to the Egyptian General Petroleum Corporation by a charter dated 2 November 1968 for trading in the Red Sea. The charter stated that the vessel may be sent to any ‘place the charterers may direct, where the vessel can always lie safely afloat’ but did not contain any other stipulation for the safety of the places of loading and discharge. Initially, the vessel was traded between the refinery at Suez and the Egyptian oil fields in the Gulf of Suez.

On the evening of 8 March 1969, shelling began while the vessel was discharging in the Suez Roads. After charterers gave orders to halt the discharge, the master decided to vacate the jetty. However, being of the same mind, the shore staff had already abandoned their stations, leaving the ship’s crew to cut their mooring ropes with axes and make good their escape.

Over the following three days, two ships were sunk by shell fire at Suez, and another was damaged in Suez Bay, with a fourth vessel running aground while trying to get away.

Thereafter, with the refinery out of action, the Evaggelos Th was employed in carrying crude from the oil fields to Aden, refined products from Aden to Suez, and fresh water from Suez to the oil fields.

Having loaded a cargo at Aden on 13 June, the ship proceeded to the Suez Roads for discharge into lighters and arrived there on 21 June. Intermittent shelling began that afternoon, with shells landing in the water on the port side of the vessel by the following morning.

The Evaggelos Th shifted to get away from the immediate danger, but, on 25 June, with discharge still in progress, Israeli guns began firing at ships in the Suez Roads. The Evaggelos Th was hit at the break of the poop, causing drums of lubricating oil and kerosene on deck to ignite, and fracturing a steam pipe, which meant she could no longer raise anchor.

The master ordered the crew ashore in boats until the shelling ceased, following which he went back onboard with a skeleton crew to perform repairs. When shelling recommenced on 27 June, the master and crew again headed ashore. While they were en route, the Evaggelos Th was struck in the aft accommodation. Flames broke out and the vessel became a total loss.

High Court

Thomas Cooper acted for the charterers in the ensuing litigation.

Having failed to convince two LMAA arbitrators of their claim for damages arising out of charterers’ orders to discharge at Suez, owners appealed to the High Court. The arbitrators had been clear, as a matter of fact, that Suez and the Suez Roads were not safe on 25 and 26 June 1969, although that did not place the charterers in breach of charter.

Mr Justice Donaldson held that the wording ‘always lie safely afloat’ did not avail owners. This wording applies only to the marine characteristics of the place of discharging, ‘and requires that the vessel shall at all times be water-born and shall be able to remain there without risk of loss or damage from wind, weather or other craft, which are being properly navigated.’

There being no express safe port warranty, the judge considered the question of an implied one. He determined that a term should be implied ‘because common sense and business efficacy require it in cases in which the shipowner surrenders to the charterer the right to choose where his ship shall go’ and ‘the implied term should in my judgment be limited to a warranty that the nominated port of discharge is safe at the time of nomination and may be expected to remain safe from the moment of the vessel’s arrival until her departure.’

In the case of Evaggelos Th, however, the outbreak of hostilities on 8 March and 25 June 1969 were unexpected and the vessel had successfully traded to Suez in the intervening months. ‘[I]n the light of the fact that the vessel was being properly employed in a war zone’, and that there was no hostile action when the vessel was ordered to Suez on 19 June or when she arrived there on 21 June 1969, the implied term was not breached. The charterers had succeeded in defending the claim.

Legacy

The textbook Time Charters, 7th Ed, reminds us that the wording ‘always lie safely afloat’ does not mean the same thing as ‘safely lie always afloat’, which appears in the NYPE 46 and Baltime forms and ‘should be read as a stipulation for safety in all the aspects …’.

Conspicuous as the sole authority showcasing an implied warranty, the Evaggelos Th is not without its critics. In The Evia (No.2), Lord Roskill said that he agreed with the outcome but ‘would respectfully question its reasoning’, while Time Charters cites the case for the proposition ‘that the court may in certain circumstances imply a term as to safety’.

It may be inferred that Mr Justice Donaldson’s implied term could only be breached in circumstances where the danger of being ’employed in a war zone’ had markedly increased since the charter was agreed. If so, the decision would appear to accord with the prevailing view that a claim under an implied warranty of safety for damage caused by an order to an unsafe port would be coextensive with one brought under the employment and indemnity clause. The Evaggelos Th may not be as controversial as its singularity would suggest.

The Court of Appeal’s decision in Paramount Shopfitting Company Ltd v Rix [2021] EWCA Civ 1172 remains a significant and frequently cited authority in fatal accident claims, particularly where the deceased was a key figure in a family-run business. The case clarified the approach to assessing income dependency under the Fatal Accidents Act 1976, confirming that financial dependency is to be assessed based on the circumstances at the time of death. This principle applies even where, in practice, the business continues to thrive and the dependants receive the same or greater income after the deceased’s passing.

The claim was brought by the widow of the late Mr Rix on behalf of his estate and dependants against Mr Rix’s former employers in relation to asbestos exposure. The issue to be determined by the Court of Appeal was one of financial dependency on the deceased.

Mr Rix had died of mesothelioma aged 60 and, at the time of his illness and subsequent death, he was a 40% shareholder in MRER Limited, a company that installed and repaired kitchens and bathrooms, undertaking joinery work and manufacturing granite worktops.

Mr Rix had been the original founder of the business but, by the time of his death, MRER was operating as a limited company in which he and his wife, the claimant, each held a 40% shareholding and each of their two sons held a 10% shareholding.

Both of the sons were involved in the business and, following the death of Mr Rix, the company continued to operate and both turnover and profit increased. The 40% shareholding owned by Mr Rix passed to his wife on his death giving her a total shareholding of 80%. However, his wife had not been and did not become active in the business. Mrs Rix had effectively been a shareholder for tax purposes and Mr Rix had, in reality, been the director and main force in the business up until his death.

Mr Justice Cavanagh heard the case at first instance and assessed his award of financial dependency to the claimant (widow) on the basis of the claimant’s share of the annual income that it was suggested she and Mr Rix would have taken from the business if he had lived. The calculation was based on expert evidence from an accountant instructed on the claimant’s behalf.

It was emphasised that these figures were arrived at by taking income that was derived from labour as opposed to from capital.  No discount was made to reflect the fact that the claimant had continued to receive an income from the business and the company’s improving financial performance since the deceased’s death.

The defendant’s case was that the widow was only entitled to the difference between her actual income since the deceased’s death and the income she would have received if he had survived.  On this basis, it argued that there was no loss of financial dependency as her income had been higher due to the ongoing profitability of the company and her 80% shareholding.

The court held that the loss of dependency was a factual issue and the assessment was based on the situation at the time of death. The widow had a financial dependency on the income generated by the deceased’s work in the business and the fruit of those labours was lost through his untimely death. This situation was contrasted with the income-generating investments passing to the dependent and continuing to generate the same income. No loss was sustained for these assets.

At face value, therefore, in money terms the claimant had ended up better off financially than she individually would have done had Mr Rix survived but still recovered for a financial loss. This seems somewhat at odds with the general principle of damages in tort that: ‘It is the aim of an award of damages in the law of tort, so far as possible, to place the person who has been harmed by the wrongful acts of another in the position in which he or she would have been had the harm not been done: full compensation, no more but certainly no less.’

The defendant appealed this judgment on three grounds.

• The judge erred in treating all of the profits generated by MRER as providing the basis for the calculation of a loss of dependency without regard to whether the profits survived Mr Rix’s death and continued to accrue to Mrs Rix. In effect, the defendant argued that, while the business may have been totally dependent on Mr Rix, the facts indicated that the business was able to continue and be profitable without him and was a capital asset producing income rather than income that was attributable to him.In this respect, the Court of Appeal held that in cases of this nature it ‘is critical to distinguish between the loss of the income derived from the services of the deceased and the loss of income derived from the capital asset’ and the ‘loss for the dependent relates to the contribution or services of the deceased in creating wealth.’

  On the facts of this case, there was no identifiable element of the profits which was not touched by the management of Mr Rix. The High Court had described MRER as not being a ‘money generating beast’ which would generate money whoever was in charge. That is, it was not a capital asset generating income but a business that was generating income due to the input of Mr Rix. Therefore, the loss ‘is the loss of the income generated by Mr Rix’s services to the business, irrespective of the fact that the business employs or owns the capital assets.’

  The court held that it was therefore ‘logical to treat the whole of the profit available to Mr and Mrs Rix as earned income and therefore part of the financial dependency’ and that the fact that the company had thrived since Mr Rix died is ‘irrelevant for the purpose of the calculation of Mrs Rix’s dependency.’

• The judge erred in law by treating Mrs Rix’s entitlement to a share of the profits of MRER based on her own shareholding in the company as if it had belonged to the deceased when her shareholding and salary were designed to minimise tax and should not have been treated as Mr Rix’s income because she took no part in the business.rnhe Court of Appeal upheld the finding at first instance and agreed that the practical reality in relation to financial dependence should be looked at rather than the corporate, financial or tax structures that are often used in family business arrangements. They held that the income Mrs Rix received as director and shareholder was ‘entirely’ the result of Mr Rix’s work.
• The judge erred in law in only including rental income and state pension as surviving income and failed to take account of surviving income in the form of a share of profits in MRER and Mrs Rix’s director’s salary. Mrs Rix’s surviving income after tax should have been deducted when assessing the net annual loss. Insofar the court had found the salary, dividends and profits generated by MRER ‘wholly attributable to Mr Rix’s endeavours and earning capacity’ no portion of Mrs Rix’s post-death income could be independent of Mr Rix and unaffected by his death. Therefore, there could be no deduction of monies received from MRER by Mrs Rix post-death.

Comment

Although the Court of Appeal handed down its judgment in 2021, the case continues to shape the legal landscape in fatal accident claims involving family businesses. It is likely to remain a reference point in future litigation, given the frequency of such scenarios in personal injury and clinical negligence contexts. The court reiterated that each case must be determined on its own facts, but where a clear financial dependency existed at the time of death, subsequent improvements in business performance will generally be disregarded. Moreover, income received by a silent shareholder who is a dependant may not necessarily reduce the assessed dependency, provided that income is attributable to the deceased’s efforts.