Laccona v Beyer
[2013] VSC 403
•12 August 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2011 4240
| GIOVANNI LACCONA | Plaintiff |
| v | |
| SHERIN BEYER AND OTHERS | Defendants |
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JUDGE: | DALY AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2013 | |
DATE OF JUDGMENT: | 12 August 2013 | |
CASE MAY BE CITED AS: | Laccona v Beyer | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 403 | |
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JUDGMENT
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PRACTICE AND PROCEDURE – Personal injury claim in respect of a motor vehicle accident in Fiji – Application for a stay on grounds that Victoria is a clearly inappropriate forum – Relevance of limited insurance coverage of second and third defendants.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Gordon | Slater & Gordon |
| For the Second and Third Defendants | Mr J. Graham | DLA Piper Australia |
HER HONOUR:
The plaintiff, Mr Laccona, is an elderly man, who lives in a nursing home in Sydney. In August 2008 he suffered very severe injuries, resulting in paraplegia, in a motor vehicle accident in Fiji (“collision”). The second and third defendants are, respectively, the driver of a vehicle with which the vehicle in which Mr Laccona was a passenger collided, and the driver’s employer, the operator of a transport business. The first defendant was the driver of the motor vehicle in which Mr Laccona was a passenger, is a former neighbour of Mr Laccona’s, and is resident in Victoria. The fourth defendant was the driver of another vehicle involved in the collision, and is apparently a resident of New Zealand. Neither the first or fourth defendants have filed an appearance in this proceeding. The second and third defendants filed a conditional appearance on 27 March 2013. No defences have been filed by any party.
The second and third defendants have applied for a stay of the proceeding against them on the grounds that Victoria, while having jurisdiction to hear the claim, is a clearly inappropriate forum.
The second and third defendants rely upon two affidavits of their solicitor, Mr David Leggatt, sworn on 6 June 2013 and 17 June 2013, an affidavit by a Fiji based legal practitioner, Mr Jon Apted, sworn on 4 June 2013, and an affidavit of a director of the third defendant, Ms Sharina Rahim, affirmed on 12 April 2013. The plaintiff, who opposes the application for a stay, relies upon affidavits sworn by his solicitors, Ms Joanne Panagakis and Ms Serina Dowding on 24 April 2013 and 19 June 2013 respectively.
Mr Leggatt deposed, in summary, as follows:
(a)the parties to the proceeding and its progress to date;
(b)his anticipation that if the second and third defendants defended the proceeding, they would contest all aspects of the plaintiff’s claim, that there would likely be significant areas of dispute as to the circumstances and causes of the collision, and possibly as to the extent and causes of the plaintiff’s injuries, and that it would be necessary for the second and third defendants to file notices of contribution against the other defendants;
(c)the location or likely location of the likely lay witnesses, including:
(i)the plaintiff, resident in North Ryde, New South Wales;
(ii)the first defendant, resident in Victoria;
(iii)the second defendant, resident in Fiji;
(iv)a representative of the third defendant, who would be a resident of Fiji;
(v)the fourth defendant, resident in New Zealand;
(vi)the other passengers in the vehicle in which the plaintiff was travelling, who apparently live in Fiji;
(vii)the passenger of the vehicle driven by the fourth defendant, apparently resident in New Zealand; and
(viii)any bystanders who witnessed the collision and any police officers who attended the scene, who are almost certainly resident in Fiji;
(d)the likelihood of the need to call evidence from treating doctors from Fiji, Victoria, and New South Wales, medical experts from New South Wales, and other experts, likely to be resident in Fiji;
(e)the possibility that the trial judge may be assisted by a view of the scene of the collision;
(f)the second and third defendants would, if they defended the proceeding, and were legally represented, incur legal costs of approximately $250,000 if the proceeding went to verdict in Victoria, plus substantial other costs in relation to the travel expenses of witnesses based interstate and overseas; and
(g)the second defendant is employed as a truck driver, earning the equivalent of $A149 per week, and supports his wife, his father, and his three children from his income. He owns his own home.
Mr Leggatt exhibited to his affidavit the policy of insurance issued by Tower Insurance (Fiji) Limited (“Tower”) which was taken out by the third defendant and was current at the time of the collision (“Policy”). Under the heading “Jurisdiction”, the Policy states:
The laws of Fiji apply to this policy. The Fiji Courts have exclusive jurisdiction in relation to legal proceedings about this policy.
Any judgement for costs or damages awarded by any Court outside Fiji or any judgement or order obtained in Fiji for the enforcement of a judgement obtained outside Fiji are not covered.
Mr Leggatt deposed that he was informed by Mr Paul Absell, the general manager of Tower, that it is Tower’s position that the Policy does not cover either of the second or the third defendants for any judgment or damages or costs awarded by any court outside Fiji, including any judgment of this Court in this proceeding, but does cover the second and third defendants for any damages or costs in any proceeding brought by the plaintiff in Fiji.
Mr Leggatt deposed that Mr Absell has informed him that Tower is one of five insurers offering compulsory third party motor vehicle insurance in Fiji, and, with the possible exception of Sun Insurance Fiji Limited (“Sun Insurance”), all of those insurers issue policies including terms which limit coverage to liabilities imposed by the courts of Fiji.
Tower has funded the legal costs of the second and third defendants in this proceeding to date in connection with this application and any appeal. However, if no permanent stay of this proceeding is awarded, Tower will deny indemnity to the second and third defendants in respect of the plaintiff’s claim in this proceeding, and will not fund any legal costs incurred by the second and third defendants in defending the plaintiff’s claim in Victoria.
In his further affidavit sworn on 17 June 2013, Mr Leggatt deposed, in summary, as follows:
(a)he was informed by Mr Apted, a Fijian based solicitor, who has also sworn an affidavit in support of this application, that not only does the High Court of Fiji have facilities for the taking of evidence by videolink, which may be done with the leave of the Court, the High Court also has a courtroom called the “technology court”, from which an entire hearing can be transmitted to other countries via Skype. Further, it is common for parties outside Fiji to hire a Fijian firm of solicitors to act as town agents for solicitors in the home jurisdiction of that party;
(b)he was informed by Mr Absell that in the event that this Court ordered that the proceeding be stayed permanently, and the plaintiff commenced a proceeding in respect of his claim within three months of such an order:
(i)Tower will accept service of such proceedings on behalf of the second and third defendants;
(ii)the second and third defendants would not rely upon any limitations defence; and
(iii)Tower will pay the reasonable costs of the plaintiff in travelling to Fiji for the trial of the proceeding, being his reasonable costs of flights, accommodation and nursing care for the purposes of attending the trial;
(c)DLA Piper served a copy of the summons filed by the second and third defendants seeking a stay of this proceeding on the first and fourth defendants (the latter care of Sun Insurance). On 17 June 2012, the husband of the first defendant called Ms Dane of DLA Piper and told her that his wife could not defend the proceedings because they did not have the funds to pay for a lawyer. Mr Beyer also told Ms Dane that the plaintiff was their next door neighbour prior to the collision, and had joined his wife on a holiday in Fiji, and that the first defendant did not object to the proceeding moving to Fiji; and
(d)the only response from Sun Insurance was a brief email acknowledging receipt of the documents served upon it.
The second and third defendants also relied upon an affidavit affirmed by Ms Sharina Rahim on 12 April 2013. Ms Rahim is the company secretary of the third defendant, and she runs the trucking business started by her father about thirty years ago with her brother. The business provides contract trucking services, primarily for Standard Concrete in Fiji, and has 29 employees and a fleet of 15 dump trucks. She deposed that she had been advised that the cost of defending the proceeding is likely to be in excess of $250,000. She stated:
If Jim’s Enterprises is not insured, it would not be able to afford these legal costs, nor any adverse judgment. It is most unlikely that it would have sufficient assets or income to satisfy an adverse judgment. At the very least, an adverse judgment would take away all that my family has worked hard to build up for this company over the last 30 years.
Finally, the second and third defendants relied upon an expert report prepared by Mr Apted, a partner of the Fijian law firm Munro Leys. Mr Apted has practised in Fiji for 27 years, and for the past 13 years, he and his firm have advised upon and acted for parties in a number of personal injury, motor vehicle accident and insurance claims in Fiji. His report covered the following matters:
(a)the law of Fiji with respect to the approach to ascertaining the proper construction of the Policy, including the clause under the heading “Jurisdiction”;
(b)the law of Fiji with respect to the approach to ascertaining the proper construction of the Motor Vehicles (Third Party Insurance) Act (Cap 177), in particular, sections 9 and 11 of Cap 177;
(c)that sections 9 and 11 of that Act have not been amended since 1948;
(d)that if the plaintiff were to bring his claim in Fiji, the claim would be brought in the High Court of Fiji at Suva, with appeal as of right to the Court of Appeal, and then by leave to the Supreme Court of Fiji. If successful, the remedies sought by him in his statement of claim, including claims based upon vicarious liability, are all available under the laws of Fiji, and governed by the common law of negligence. The applicable rules of procedure are closely modelled on the former rules of the Supreme Court of England. While there is no legislative provision for the giving of evidence by videolink in civil cases, it is possible with the leave of the Court to adduce evidence by way of videolink. Finally, the plaintiff is likely to receive a fair trial of his claims according to law.
The plaintiff relied upon two affidavits sworn by his solicitor, Ms Joanne Panagakis of Slater & Gordon on 24 April 2013 and 18 June 2013, and an affidavit sworn by a legal clerk employed by Slater & Gordon, Ms Serina Dowding on 19 June 2013.
In her first affidavit, Ms Panagakis deposed, in summary, as follows:
(a)the plaintiff is currently 81 (now 82) years of age;
(b)he was injured in the collision on 12 August 2008 as a result of which he suffered severe spinal injuries, including a T6 burst fracture with complete lower limb paralysis but partially preserved lower limb sensation, and a left acetabular fracture managed conservatively;
(c)he was initially treated in Fiji before being transferred to the Austin Hospital on 22 August 2008, where he remained in the acute ward of the Victorian Spinal Cord Service until 25 April 2009. In June 2009 he moved from Fernleigh Nursing Home in New South Wales to a high care aged care facility in North Ryde, New South Wales, where he currently resides;
(d)the plaintiff is confined to a wheelchair, and also suffers from type 2 diabetes, ischaemic heart disease, chronic obstructive airway disease and hypertension, along with other conditions;
(e)owing to his age, medical conditions, limited financial means, and limited family support, it is extremely unlikely that Mr Laccona would be able to travel outside Australia to pursue his claim;
(f)all of his medical treatment since returning to Australia in August 2008 has been in Australia, and all of the witnesses regarding his treatment and care will be from Australia;
(g)she is concerned, in terms of the choice of forum, that over recent years there has been extensive political upheaval in Fiji, seriously compromising the rule of law and resulting in the suspension of the Constitution, and the suspension and subsequent reinstatement of the Fijian courts;
(h)a number of investigations and steps were required before and after the issue of the writ on 12 August 2011, including two applications for an extension of time and an application for substituted service; and
(i)she exhibited copies of the police reports regarding the involvement of the four defendants in the collision.
In her further affidavit sworn on 18 June 2013, Ms Pangakis exhibited a medical report obtained from Dr W.K. Soh on 18 June 2013. Dr Soh, who practises in North Ryde, states that he has known Mr Laccona since June 2009, and that he is a T6 paraplegic who suffers from diabetes mellitus, and that:
Giovani lives in a High Care Residential Facility because he requires 24 hour nursing care and is therefore unable to travel.
Ms Dowding, in her affidavit affirmed on 19 June 2013, deposed, in summary, as follows:
(a)on 12 August 2012, the first defendant’s husband, Mr Beyer, contacted her on the first defendant’s behalf, and told her that they had no funds and that Legal Aid could not assist them. She recommended that he contact the first defendant’s insurance company, gave him the contact details, and forwarded the writ and statement of claim to that insurance company;
(b)both she and the Beyers had received correspondence from that insurance company indicating that the relevant policy did not indemnify the first defendant in relation to the plaintiff’s claim; and
(c)on 17 May 2013 she discovered that the vehicle driven by the first defendant at the time of the collision was insured by Sun Insurance, but she has yet to receive the certificate of insurance from the relevant authority in Fiji.
Finally, while it was not in evidence as such, the Court file contains a letter from solicitors acting for Sun Insurance dated 27 May 2013, in response to the writ and statement of claim being served upon the fourth defendant via Sun Insurance as provided for by an order for substituted service made earlier this year. This letter stated that Sun Insurance’s insured (being the owner of the vehicle driven by the fourth defendant) had sold the vehicle concerned on or about 31 July 2008, and therefore the policy issued by Sun Insurance to the former owner lapsed upon that date (that is, prior to the collision).
In the current application, the second and third defendants accept that the burden is upon them to demonstrate that this Court is a clearly inappropriate forum, such that requiring them to defend the plaintiff’s claims would be vexatious and oppressive.[1] When considering whether the continuation of an action in Victoria would be “oppressive and vexatious” it should be stressed that the focus is upon the objective impact upon the second and third defendants, not the conduct of the plaintiff in bringing the action.
[1]See Voth v Manilda Flour Mills Ltd (1990) 171 CLR 538.
The authorities relied upon by the second and third defendants illustrate the task required to be undertaken by the Court when assessing whether Victoria is a “clearly inappropriate forum”. In McGregor v Potts,[2] Brereton J considered the principles in Voth, and their practical application, and stated as follows:[3]
The Voth principles do not require proof of actual vexation or oppression; what they require is proof of a sufficient imbalance of the “connecting factors” that it can be said that the local forum is a “clearly inappropriate” as distinct from a “less appropriate” one. Once that is established, the law presumes vexation and oppression will be occasioned to the foreign party by requiring it to litigate in a clearly inappropriate forum, without requiring proof of actual vexation or oppression.
[2](2005) 68 NSWLR 109.
[3]at 119.
Of course, if there is proof of actual prejudice to a party by being forced to litigate in another forum, then this would further influence the Court’s discretion as to whether to order a stay.
Brereton J noted that, given that most applications of this nature are brought at an early stage of the proceeding, that:
it is inevitable that actual prejudice to a foreign defendant will often be conjectural.[4]
[4]at 121.
He noted that at an early stage of a proceeding, it is not entirely clear how long a trial might take, what witnesses will be called, what issues might go to trial and what issues might fall away, or whether the proceeding may settle. The Court should proceed on the assumption that the case will run to trial on all issues, and identify and evaluate the natural connecting factors of each of the jurisdictions under contemplation on that basis.[5]
[5]at 121-122.
Finally, if the Court does come to the view that the balance of connecting factors leads to a determination that, without more, the proceeding has been brought in a clearly inappropriate forum, the matter does not stop there. It is then necessary to consider whether the considerations which would lead to a conclusion that it would be “seriously and unfairly burdensome and prejudicial” to require the second and third defendants to litigate in Victoria are balanced or outweighed by “any legitimate personal or juridical advantage“ the plaintiff may have in pursuing his claims in Victoria,[6] including, I would add, consideration of any actual prejudice to the plaintiff if he were forced to litigate in a foreign jurisdiction.
[6]at 126-127.
Applying the framework set out above, I would make the following observations:
(a)the preponderance of “natural connecting factors” lies with Fiji, not Victoria;
(b)the second and third defendants have established actual prejudice as well as “notional” prejudice if forced to continue defending the proceeding in Victoria;
(c)the plaintiff has demonstrated some actual prejudice in being forced to litigate in Fiji, although arguably, the prejudice which arises out of his health and physical condition would arise if he were to be required to travel outside Sydney. A relevant question is whether this prejudice has or can be substantially or wholly overcome by the undertakings proffered on behalf of Tower; and
(d)there remains a final consideration in this application when determining whether to exercise the Court’s discretion to stay the proceeding against the second and third defendants, being the question of whether, by staying the action against only some of the defendants, there is a risk of there being two proceedings on foot, regarding the same subject matter, albeit in different jurisdictions and against different defendants.
In Suzlon Energy Ltd v Bargad (No 3),[7] Rares J noted that:
The nature and degree of connection between the proceedings and the forum are fundamental factors in assessing whether the forum is clearly appropriate.
[7][2012] FCA 123.
In the current case, the preponderance of connecting factors are overwhelmingly in favour of the claim being dealt with by the courts of Fiji, noting that:
(a)the collision occurred in Fiji;
(b)the second defendant, the driver of one of the other vehicles involved in the collision, lives in Fiji;
(c)it is almost certain that other eye witnesses to the collision, including police officers attending the scene, live in Fiji;
(d)the applicable law is the law of Fiji;
(e)expert witnesses regarding traffic matters are likely to live in Fiji; and
(f)the plaintiff was originally treated in Fiji.
I would note that while there are likely to be witnesses such as treating doctors and medico‑legal experts, who live in Australia, the preponderance of lay witnesses, whose evidence is most likely to raise issues of identification, recollection, and credit, and as such, would generally be required to give evidence in person, live in Fiji.
On the other hand, there are a paucity of connecting factors with Victoria. The only real connection with Victoria is that the first defendant lives in Victoria, and that the plaintiff was treated at the Austin Hospital for some months. However, it is likely that other treating doctors and expert witnesses will be based in Sydney.
Accordingly, the preponderance of connecting factors with Fiji, and the lack of any real connection with Victoria, would lean towards a prima facie conclusion that Victoria is a clearly inappropriate forum. Indeed, cases concerned with motor vehicle accidents were referred to in Voth as being, by way of illustration,[8] the type of case which would generally be considered inappropriate to be litigated outside the jurisdiction in which the accident occurred. Of course, a passing statement of this nature (also referred to by Ranes J in Suzlon[9]) is not binding, but it is instructive. The conclusion that Victoria is a clearly inappropriate forum is bolstered by the evidence of actual prejudice to the second and third defendants if the proceedings against them remained on foot here, in particular, the position of Tower, which has adopted a position that it will not indemnify the second and third defendants for any judgment obtained by the plaintiff in Victoria, and will not, following the conclusion of this application, fund the defence of this proceeding on behalf of them.
[8]at 558.
[9]at [52].
The question of whether the relevant clause of the Policy did in fact deny cover to the second and third defendants, and whether such an exclusion would be liable to be rendered void by reasons of sections 6, 9 or 10 of Cap 177, generated some debate and consumed a substantial amount of time at the hearing. However, when considering the question of prejudice to the second and third defendants in the context of this application, the merits of the respective parties’ positions on the question of construction and the application of the provisions referred to above is a relevant matter, but not the only relevant matter. The critical matter is the fact that the insurer has denied liability to indemnify the second and third defendants, and has refused to fund their defence costs, on what appears to be an accurate construction of the Policy. The plaintiff’s submissions that the second and third defendants could take legal proceedings on the construction issue or on the validity of the clause under Cap 177 ignores the fact that in the meantime, on the evidence available upon this application, the defendants would not be able to afford to defend the proceeding in Victoria, unless this proceeding is stayed pending the determination of the issue of the coverage of the Policy and the validity of the relevant terms of the Policy, which would have to be dealt with by the courts of Fiji. Alternatively, they could take no active part in the proceeding, have default judgment entered against them, and then be forced to seek recourse against Tower in order to meet the judgment, in the absence of any forbearance on the part of the plaintiff to refrain from enforcing the judgment until the insurance issue is resolved. And, while it is not necessary to make a final determination of the matter, Tower’s arguments regarding the coverage and validity of the Policy appear to be quite compelling, such that any action by the second and third defendants to compel Tower to indemnify them is likely to be unsuccessful.
Counsel for the plaintiff submitted that the evidence of the third defendant was unsatisfactory, in that it did not demonstrate that the third defendant had insufficient assets to meet a judgment against it. Again, that is somewhat beside the point. I can readily accept that there will be actual prejudice suffered by a party being exposed to an uninsured liability. This proposition was implicitly accepted by Brereton J in McGregor, where the financial circumstances of the relevant defendants were not subject to any substantial examination. This contrasts with the Court’s position in Fleming v Marshall,[10] where the foreign defendant’s lack of insurance coverage for judgments obtained against it outside the United States was given little weight. However, in that case, the defendant was a firm of solicitors who could presumably negotiate the extent of coverage it could obtain, in circumstances where they had chosen to represent Australian clients. That is certainly different from the current case, where the third defendant has purchased “off the rack” insurance under a compulsory insurance scheme, and where the evidence is that all but one of the insurers operating in the Fijian market purport to limit their coverage in this way.
[10](2011) 279 ALR 737, at [95].
Accordingly, I consider that the lack of insurance coverage for the second and third defendants, while not determinative, is a factor which bolsters the conclusion that requiring them to defend the plaintiff’s claim in Victoria would be oppressive and vexatious. Also, in the event that the second and third defendants, contrary to the available evidence, decide to defend the proceeding from their own resources, I accept that it will be more costly for them to do so in Victoria because of the likelihood that a substantial number of witnesses of fact reside in Fiji, and would in all likelihood need to be present to give evidence in Victoria.
Having found that the continuation of the proceeding in Victoria would be oppressive and vexatious for the second and third defendants, it is necessary to examine the countervailing prejudice to the plaintiff of being denied the opportunity to pursue his claim in Victoria, the forum of his choice. Counsel for the plaintiff submitted that the plaintiff would be denied an opportunity to pursue his claim at all should the proceeding be stayed, on the following grounds:
(a)his injuries and general state of health is such that he could not travel to Fiji;
(b)the plaintiff is impecunious and has few assets;
(c)the plaintiff has Australian solicitors and counsel;
(d)the plaintiff’s medical witnesses and carers are all Australian;
(e)if forced to litigate in Fiji, he will be denied the juridical advantage of being able to give his evidence by way of a de bene esse examination, obviating the need for him to travel to Victoria;
(f)while the second and third defendants have stated they will not rely upon any limitations defence in the event the plaintiff commenced proceedings in Fiji, no such undertaking has been provided by the first or fourth defendants (or their insurers, who have not yet been positively identified); and
(g)the ongoing political instability in Fiji, and its effects on the independence and the continued existence of the Fijian courts brings into question the ability of the plaintiff to bring his claim in the courts of Fiji.
In my view, the submissions of counsel for the plaintiff to the effect that the plaintiff will be unable to pursue his claims of the proceeding is stayed as against the second and third defendants are somewhat overstated. The practical reality of the plaintiff’s situation, based upon the evidence of Dr Soh, is that the plaintiff will find it difficult to travel anywhere, including, presumably, from Sydney to Melbourne. In the event that this proceeding has been stayed and the plaintiff issues a proceeding in Fiji, Tower has undertaken to fund the reasonable travel and attendant care costs of the plaintiff. So, in some respects, the plaintiff’s support may well be better resourced than if the trial were to proceed in Melbourne, where the plaintiff will need to fund his own travel and nursing expenses.
In any event, the evidence of Mr Apted demonstrates that the Fijian High Court has adequate audio visual facilities to enable parties and witnesses to participate in the trial remotely. It is quite possible that arrangements can be made for medical witnesses (where credit or recollection is unlikely to be an issue) to give their evidence by video link (noting that a number may be Sydney based given the plaintiff’s residence in New South Wales).
Further, I note that the High Court Rules provide for evidence to be taken by way of deposition, including outside Fiji,[11] so there is no obvious juridical advantage to the plaintiff of having the matter proceed in Victoria.
[11]see Order 39.
Further, I am not satisfied that any political instability in Fiji would impair the plaintiff’s ability to obtain a fair trial. I note the observations made by the plurality in Voth[12] that:
there are powerful policy considerations which militate against Australian courts sitting in judgment upon the ability or willingness of the courts of another country to accord justice to the plaintiff in the particular case.
[12]at 559.
In any event, there is evidence from Mr Apted, an experienced practitioner, that in his opinion, the plaintiff would receive a fair trial of his claims in Fiji.
Finally, counsel for the plaintiff makes a sound point regarding the potential issues and complexities arising out of two proceedings being brought in different jurisdictions regarding the same subject matter. Further, while Tower is prepared to give undertakings that no limitations point will be taken in the defence of any proceeding brought by the plaintiff in Fiji, no such undertakings have been given on the part of the first or fourth defendants, or any insurers which might be liable to indemnify them (the insurance position in respect of both of these defendants remains unclear). However, these difficulties do not appear to me to be insurmountable. Neither the first defendant or the fourth defendant has entered an appearance, and neither, based upon the evidence available, is likely to participate in their own right in this proceeding. As such, the plaintiff has open to him the option of obtaining judgment in default, with damages to be assessed, and to pursue his rights against the individual defendants or their insurers as they see fit. Of course, in pursuing the insurers, the plaintiff may face some of the same issues regarding coverage identified in the course of this application. Alternatively, if insurers can be located, no doubt they would make a similar application to that made by the second and third defendants, although such an application may well be unsuccessful if they failed to proffer undertakings similar to those provided by Tower in the course of this application. What path is chosen by the plaintiff may well be determined once the insurance position of the respective defendants is determined.
Accordingly, I do not consider that any prejudice to the plaintiff of acceding to the second and third defendants’ application outweighs the presumed and actual prejudice to the second and third defendants of being forced to litigate in a clearly inappropriate forum. As such, I will make orders staying the proceeding against the second and third defendants, and will list the proceeding for directions in two months’ time in order to ascertain the intentions of the plaintiff and any other party.
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