A shot across the bows: torpedo proceedings in cross-border litigation

by Daniel Matchett, Associate Solicitor, Irwin Mitchell LLP

As international travel resumes following a hiatus during the global pandemic, bringing with it the unfortunate reality that some of those travellers will suffer serious injury whilst abroad, it is sensible to consider the potential obstacles which may be encountered within a legal claim relating to injury sustained overseas.  The recent interlocutory decision in the case of Jamieson v Wurttembergische Versicherung AG[i] is a cautionary and timely reminder of the perils of torpedo proceedings to those representing clients who have sustained serious injury overseas and who seek to pursue proceedings in the Courts of England and Wales.  Like its namesake, the torpedo claim appears without warning and has the capacity to complicate matters dramatically.

In Jamieson, the claimant’s representatives made a request of the defendant insurer, within pre-action correspondence, that it confirm that it would not issue proceedings in relation to the matter in the Courts of another jurisdiction.  This request was not responded to save for the commencement of proceedings in the Courts of Germany by the insurer, seeking a declaration that it was not liable for the accident which formed the basis of Mr Jamieson’s claim against it.  In short, Jamieson presents an example of the strategic manoeuvre of a ‘torpedo claim’.

The ‘torpedo claim’ is that instigated in a foreign Court by a potential defendant to proceedings within the Courts of England and Wales. Such claims are commenced against the injured party in the foreign Court before that party is in a position to commence proceedings against the proposed defendant in the English Courts.  It is then said that the foreign Court is ‘seised’ of jurisdiction in relation to the matter between those parties and that no related proceedings can then be commenced in the English Courts whilst the overseas proceedings remain active, if at all.  Whether or not any defendant would ever admit as much, one can surmise that torpedo proceedings are usually instigated with the intention to delay, frustrate and potentially remove altogether an injured person’s ability to pursue their claim in the English Courts.

The substance of such proceedings can vary depending on the laws of the foreign jurisdiction in question.  In one case in which I represented a gentleman who sustained complex polytrauma following a road traffic accident overseas (during which a vehicle in which he was a passenger fell a significant distance down a hillside at speed), the driver’s foreign motor insurer issued torpedo proceedings in the foreign Courts for a declaration that the financial value of the claim against it was limited to a few thousand Euros.  The insurer had by that early stage already paid several tens of thousands of pounds by way of interim payments and the claim eventually settled, many years later, for a significant six figure sum.  Whilst successive Courts in the foreign country, on appeal by the insurer, concluded that such a right of action did not exist to a defendant under the foreign law, the process of resolving this issue in the foreign Courts took several years, during which time the insurer rejected requests for further interim payments and my client was unable to fund the treatment and support he desperately required. 

 More recently, I have had the experience of the Spanish branch of the same motor insurer commencing torpedo proceedings in that country.  My client sustained significant injury when he was hit as a pedestrian by a car in Spain.  The local police concluded that the primary cause of the accident was “negligent driving”.  Despite that, the Spanish insurer issued torpedo proceedings in Spain, the basis of which is that my client caused damage to its insured vehicle when it hit him at speed.  The phrase “adding insult to injury” comes to mind.

Regardless of the substance of a torpedo claim, its effect is invariably the same – to delay and otherwise frustrate the ability of an injured person to obtain justice against the party which they allege injured them.  Firstly, the frustrated claimant must deal with the issue of how to fund the legal costs required to resolve the torpedo action in the foreign country.  These costs can often be significant, bearing in mind the need to engage a legal team within the foreign jurisdiction alongside their existing legal team in the UK.  ‘No win, no fee’ funding of a type available in cases pursued in England and Wales is rarely available or enforceable in foreign jurisdictions and such agreements will rarely extend to cover legal costs incurred in defending a claim brought overseas which has as its purpose the frustration of any English proceedings.  This then leaves the injured party at the mercy of the overseas regime in terms of the funding options available to them.  At best, a contingency option may be available.  At worst, private funding may be the only option.  To the catastrophically injured claimant, unable to work due to their injuries and potentially reliant on any savings to fund daily living costs, this may simply not be an option and may represent the death of their claim before it has begun.  One can see then the attraction of the torpedo claim to the more cynical defendant.  Why defend a claim on its merits when it can simply starve the claim of oxygen by way of a procedural technicality?

Where a claimant is able to fund their legal costs overseas and to engage with the torpedo claim in the foreign jurisdiction, they will still be at the mercy of that system in terms of the time required to resolve proceedings there.  Practitioners in the English and Welsh Courts will be familiar with systemic delay, made worse by the current pandemic.  However, with due respect to the Courts in question, my experience is that the procedural delay in other jurisdictions is often even greater.  In the first example given above, it took around 7 years to defeat the torpedo claim abroad and issue proceedings in the Courts here.  During that time, my severely injured client was without financial or rehabilitative support.  Fortunately, my firm was able to provide the client with the services of one of our Client Liaison Managers, who supported them in obtaining the best support available to them in the absence of funds from the defendant.

What then can be done to guard against this menace?  Jamieson suggests that a polite request by a claimant that the defendant refrains from commencing a torpedo claim is likely to be an overly-optimistic approach.  One might suggest that certain defendants view the overriding objective under CPR 1.1 as a one-way street.  Instead, it might be concluded that such action on the part of defendants must cause claimant practitioners to consider the relative weight of the Pre-Action Protocol against the requirement to act in their clients’ best interests.  Weighed against the prospect of falling foul of a torpedo action and losing domestic jurisdiction, and potentially the practical ability to pursue the claim at all, the scrupulous claimant practitioner might consider the commencement of proceedings here without notice to a defendant to be the lesser of two evils.  Whilst defendant practitioners persist in torpedo attacks, it might be said that claimant practitioners lack any option but to respond with a depth charge of their own.  The combination of the two tactics is certain to muddy the waters.

[i] Jamieson v Wurttemburgische Versicherung AG & Anor [2021] EWHC 178 (QB)

Find out more about Irwin Mitchell's work in supporting people injured on holiday at our serious injury abroad section.

As international travel resumes following a hiatus during the global pandemic, bringing with it the unfortunate reality that some of those travellers will suffer serious injury whilst abroad, it is sensible to consider the potential obstacles which may be encountered within a legal claim relating to injury sustained overseas. ”