Stait v Cosmos Insurance. A good reminder of the distinct notion of ‘domicile’ for a natural person under the UK’s implementation of Brussels Ia.

Stait v Cosmos Insurance Ltd Cyprus [2022] EWCA Civ 1429  is a ‘leapfrogged’ appeal direct to the Court of Appeal pursuant to CPR 52.23(1). The issue under appeal is whether Griffith DJ was wrong to decide that Mr Stait, an RAF officer who was at the time of him incurring serious injuries in a cycling accident in Cyprus on 24 October 2017 stationed at the Sovereign Base Area (‘SBA’) at Akrotiri  (Cyprus), was not domiciled in England and Wales.

[16] he SBA has never been part of Cyprus. Nor has it ever been part of the UK. It is not and never has been part of the EU. It is a former colony, now known as a British Overseas Territory. The SBA retains strong connections with the UK, and the UK retains an RAF base on it.

The issue of domicile is relevant to Article 11 Brussels Ia:

1. An insurer domiciled in a Member State may by sued: (a) in the courts of the Member State in which he is domiciled; (b) in another Member State, in the case of actions brought by the policyholder, the insured, or a beneficiary, in the courts for the place where the claimant is domiciled; or (c) if he is a co-insurer, in the courts of the Member State in which proceedings are brought against the leading insurer.”

Article 13.2 provides that

“Articles 10, 11 and 12 shall apply to actions brought by the insured party directly against the insurer, where such direct actions are permitted.”

[22] When read together, the effect of those provisions is to permit a claimant to sue an insurer in another Member State, provided certain conditions are met, in what is called a direct action: CJEU C-463/06 FBTO Schadeverzekeringen NV v Jack Odenbreit is the relevant authority for that.

[22] At [28] in FBTO, the CJEU explained the reason for permitting an injured person to bring a direct action in the courts of the Member State where that injured person was domiciled, namely to afford equivalent protection to that person who was regarded as vulnerable (emphasis added):

“…. To deny the injured party the right to bring an action before the courts for the place of his own domicile would deprive him of the same protection as that afforded by the regulation to other parties regarded as weak in disputes in matters relating to insurance and would thus be contrary to the spirit of the regulation.”

Per A62 BIA of course domicile of natural persons is determined by national law.

[28][29] The UK’s definition of domicile for the application of BIa is unrelated to and narrower than the domestic common law concept of domicile. [35]-[36] parties list their arguments for or against domicile in the UK, with Whipple  LJ [70] concluding

The balance of these factors favours sole residence in the SBA. That was where he was living, with his family. He retained links with England and Wales, certainly, but his life was in the SBA, where he had moved for work purposes, taking his family with him.

and Underhill LJ agreeing in more succinct terms [78] ff.


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