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A tale of two cities: pursuing a personal injury claim in the UK from another country

Posted: 26/04/2021


‘It was the best of times when I lived in London, it was the worst of times when I was injured there, so I moved to Philadelphia.

What should I do if I am injured in England or Wales and living (or soon to be living) outside of the UK? Partner Warren Collins and associate Louise Taylor explain the international injury claims process.

Being involved in an accident when visiting another country can, at best, ruin a holiday and, at worst, cause catastrophic injuries. As if that were not bad enough, sustaining injuries away from home makes everything after the accident more complicated, including deciding where to have treatment for those injuries. Where there is a civil claim for a negligently caused accident, attempting to negotiate a different legal system to the one you are from, or to where you live, can be alienating and off-putting.

At Penningtons Manches Cooper, we have a specialist international personal injury team representing foreign national clients injured in England and Wales, those who move away post-accident and British citizens injured abroad.

What legal terms should I know?

From studying at international universities, which attract an international body of students, we know that esoteric legal terms can be confusing for even the most eloquent of multilingual individuals. A Swiss student completing a Masters of Law at the London School of Economics springs to mind, who spoke seven languages and five of those languages fluently; however, she could not follow the lectures in international economic law because the specific legal terminology was so different from legal language in German (and French), both of which she understood, naturally.

To assist, and forgive us if this is too rudimentary; here is a starter for ten of useful words to know for personal injury claims in England and Wales:

  • a person bringing or responding to a claim is known as a party or both together are the parties;
  •  the injured person who brings a claim in the courts of England and Wales is known as the claimant, and the person or legal entity (company, other organisation or body) against whom the claim is brought is the defendant;
  • the legal territory (for our purposes England and Wales) is the jurisdiction;
  • across two legal territories is cross jurisdictional;
  • the place where someone lives or a legal entity is registered is where that person is domiciled;
  • if you are legally responsible for something (such as negligence or owing costs), you are liable for it or you have liability for it;
  • when a person or legal entity fails to take care of something, they have a responsibility for (a duty of care), and this results in an accident that causes injuries or damages, they are considered to be negligent; the accident is considered to have been caused by negligence;
  • a decision by a judge (or a panel of judges) in a case is expressed in writing in a court order and formal documents filed with the court are known as the statements of case;
  • if a claim comes to successful resolution without going to a trial, the claim has settled and the agreement is known as the settlement;
  • to bring a claim, a claimant must be able to understand the process. This is known as capacity to litigate; if there is no capacity, then a litigation friend is required to bring the claim and any settlement in these circumstances must be approved by the court.

Can I bring a personal injury claim?

If the above applies to you, the first thing you probably want to know is whether you can bring a claim or not?

The short answer is, well, yes.

In the courts of England and Wales, an injured person may bring a claim for compensation if:

  • the accident occurred within England and Wales (the jurisdiction); and/or
  • the defendant is ordinarily domiciled (living or registered) in the jurisdiction.

There is no requirement for a claimant to be based in England or Wales (either at the time of the accident or at the time of filing court proceedings). By comparison, if an accident occurred outside the jurisdiction (and the defendant is domiciled in England and Wales), the court may apply the local law for the jurisdiction in which the accident occurred.

The courts of England and Wales are far more welcoming to foreign claimants, where often in other jurisdictions the courts are more willing to exclude claimants from other countries.

Although in principle you can bring a claim, many complicating factors can arise in cross-jurisdictional claims. Our team has a wealth of experience in these areas and here we consider just two of those issues: your liability for costs and translating court documents.

Do I have to pay money into the court?

The procedural rules that govern civil claims in England and Wales are known as the Civil Procedure Rules (the Rules). The Rules allow defendants to apply to the court for a court order (called an order for security for costs) that a foreign claimant must pay a sum of money into court in respect of any potential costs liability that they may incur throughout the claim. This provision, which is Part 25 of the Rules, applies specifically to foreign claimants and is in place to protect a defendants’ position due to difficulty in enforcing court orders for costs cross jurisdictionally.

However, in personal injury claims, claimants are protected by something called ‘qualified one way costs shifting’ which really means that, unless in very specific circumstances, a claimant will not be responsible for a defendant’s costs. In addition, where liability for costs does arise, most injured claimants have an insurance policy, which will insure the claimant against adverse costs.

Finally, Part 25.13 (1) (a) of the Rules provides that an order will be made if ‘having regard to all the circumstances of the case, it is just [or fair] to make such an order’.

Altogether, this means that the threat of such an application is more theoretical than real and these applications are most unlikely to be a feature in personal injury claims.

What if I do not speak English?

Of course, cross jurisdictional cases often involve claimants who do not speak English as a first language, or at all.

Apart from proceedings in (or connected with) Wales, where the Welsh language may be used (to ensure compliance with the Welsh Language Act), court documents for claims issued in the courts of England and Wales must be in the English language.

Part 22.1 (1) of the Rules requires both statements of case (the formal documents filed with the court) and witness statements to be verified by something called a statement of truth, which means that the contents of the statement are true and understood to be true by the person signing it. Where a claimant is non English speaking or not fluent in English, the most appropriate way of dealing with this is to have the statements of case and witness statements formally translated (and certified by the translator) so that the party/witness knows what he is signing.

As His Honour Judge Alan Gore QC ordered in the personal injury case of Hussain v Naqui (2014):

‘[for] any witness who cannot understand English… [witness statements] shall be written in a language they can understand [and] be accompanied by a translation of the foreign language witness statement into English and be accompanied by a statement from the translator verifying the translation and exhibiting both the translation and a copy of the foreign language witness statement’.

So, to summarise, if you are not a native English speaker or indeed an English speaker at all then the Rules provide for this; as long as everything is translated and certified then there is no problem.

Here are some cases that we settled earlier…

Finally, here are some examples of cross jurisdictional cases we have worked on. (The names of our clients have been changed for confidentiality reasons).

Albert’s case

Albert was in his mid-twenties. He had his whole life ahead of him and he was excited to be in the UK having been born and raised in Hungary. All was great, he had a job and a home in Leicester and he was making ambitious plans for his life here.

Those plans came to an abrupt end when Albert was struck by a car while crossing the road and catastrophically brain injured. Albert had no capacity to litigate (the ability to bring the court proceedings himself) and no English speaking relatives nor anyone in the UK who could act as his litigation friend. We took on the case, went to Budapest and met with his brother and an English speaking Hungarian lawyer, who acted as translator.

As in the Hussain case, we arranged translation of the court documents, expert reports and witness statements. The case was complex in relation to liability and the value of the claim as well as having to navigate both the English and Hungarian Courts of Protection and differing healthcare systems.

After obtaining expert reports in neuro-rehabilitation, care and case management and accommodation, we were able to secure the purchase and adaptation of a suitable bungalow in Budapest, the establishment of a care team at home and Albert’s repatriation back to Hungary.

Further expert evidence in physiotherapy, speech and language therapy, occupational therapy, neuro-psychology, neuro-psychiatry, neuro-ophthalmology and urology enabled us to secure an eight figure settlement including the payment of legal costs in negotiation. That settlement was approved by the High Court in late 2020.

Valentina’s case

Valentina was also in her mid-twenties. She was from Spain but living in London when she, too, was struck by a motorist while crossing the street. Although she avoided catastrophic brain injury, the severe injury to her shoulder meant that her career as a physiotherapist in London came to a sad and sudden end. This was distressing for Valentina as she had trained hard to qualify and already had plans to move to and work in the United States. Valentina was now stuck in London and her dreams shattered. She instructed us to pursue a claim. We accepted the case and obtained an initial medico-legal report from a London based consultant orthopaedic surgeon.

Valentina was not one to give in easily and after instructing us, decided that she would go to the United States anyway. There is nothing to stop a claimant leaving the jurisdiction in mid-claim: we just had to work round the situation. Valentina settled in Philadelphia where she worked in the marketing department of a physiotherapy clinic.

With the assistance of ‘co-counsel’ in Philadelphia, we secured evidence from a US based orthopaedic surgeon who gave an updated opinion and prognosis and from a labour economist who was able to advise on the loss of earnings opportunity for the claimant. Although she was earning far more in marketing than she had before the accident, her potential earnings as a physiotherapist were considerable. We took extensive witness evidence in the United States to support the claim. We also took advice in relation to the USA tax treatment of damages where a claim for earnings was being advanced.

The defendant’s lawyers went through the same exercise and on the basis that all the witnesses and experts were in the Philadelphia area, the parties agreed to hold a settlement meeting in Philadelphia rather than bringing the case to London for negotiations. The claim was settled in US dollars (a substantial six figure sum) with an agreed payment of the claimant’s costs.

Leo’s case

Finally, Leo was in his fifties. Leo is a vulnerable adult with learning difficulties and he was living independently in Cambridge, although with family close by, and working as a warehouse assistant at a company where he had been employed for over 30 years.

One day, when at work, an automatic ceiling to floor security door closed on top of him and he suffered a fracture of his left hip. Leo had no capacity to litigate and so his brother, Tom, acted as his litigation friend.

Leo required surgery, spent two weeks in hospital, and then moved in with his parents for several months. Unfortunately, although Leo recovered enough to be capable of returning to work after about 12 months, he was dismissed permanently from his role. Leo loved his job, and it had provided him with an established routine for over 30 years, which his family argued had in part enabled him to continue living independently. Around the same time, both of Leo’s parents sadly passed away within one year.

The combined losses had a detrimental impact on Leo’s psychological state and he began deteriorating. It was decided that Leo would relocate to Northern Ireland to live with his other brother, Patrick. Patrick has enduring power of attorney for Leo’s affairs. As we know, there is nothing prohibiting Leo from moving out of the jurisdiction when he has a claim ongoing in the English and Welsh courts, but some cross-jurisdictional matters arose.

First, the litigation friend (Tom) remained within the jurisdiction while Leo and Patrick were in Northern Ireland, which logistically made things tricky. It was decided that the legal team and litigation friend would travel to Northern Ireland for the substantive meetings, which also enabled the legal team to assess capacity and consider the further expert evidence needed. We began to look for appropriate experts in Northern Ireland.

Issues also arose regarding the registration of the enduring power of attorney in favour of Patrick (which had never been registered) with respect to where damages would be paid. It was necessary to liaise with Northern Irish lawyers regarding this process in the Northern Irish courts, which is very different from England and Wales.

Thankfully, before further expert evidence was obtained, the parties were able to reach a good settlement for Leo and this was approved in the High Court in late 2019.

To sum up…

We understand how anxiety inducing and daunting being a claimant in any personal injury claim is, let alone the additional stresses if you live far away. Our expertise in this area means we achieve the best possible outcomes for our clients, and we can only rest easy if the feedback is (something like):

‘It is a far, far better thing that I do (instructing Penningtons Manches Cooper to deal with my cross jurisdictional claim), than I have ever done; it is a far, far better rest that I go to than I have ever known (now that they have settled my claim).’

 

About the authors: Warren Collins is a solicitor-advocate and partner and Louise Taylor is an associate solicitor in the clinical negligence and personal injury team at Penningtons Manches Cooper. Warren regularly represents US nationals injured in the UK and acts as co-counsel for UK nationals injured in the United States. He is a member of the Board of Governors of the American Association for Justice, a Fellow of the Pound Civil Justice Institute and the only UK solicitor member of the US based National Trial Lawyers Top 100, the National Crime Victim Bar Association and the Melvin Belli (pre-eminent personal injury lawyers of the United States) Society.

Louise works closely with Warren in cross-jurisdictional matters, and she has represented both foreign nationals injured in England and Wales and British citizens injured abroad in clinical negligence and personal injury matters. Louise received the Pro Bono Junior Lawyer of the Year Award in 2019 and is a previous chair of the South London Junior Lawyers Division.


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