12
Mar
21
Articles, Travel & Cross Border Claims
Special Briefing: the Decision of the Court of Appeal in Begum v Maran [2021] 3 WLUK 162

In Begum v Maran [2021] 3 WLUK 162 the Court of Appeal was asked to reconsider the decision of Jay J in Begum v Maran [2020] EWHC 1846 (QB), which was the subject of a 1CL Special Briefing back in July 2020 (Special Briefing: the Decision in Begum v Maran [2020] EWHC 1846 (QB) – 1 Chancery Lane).

The Facts

The Claimant, a Bangladeshi national, was the widow of a Bangladeshi shipbreaker working in a yard in Chittagong, in Bangladesh. On 30th March 2018 her husband had fallen to his death whilst working to dismantle an oil tanker. Evidence called on her behalf indicated that working conditions at Chittagong shipyards were notoriously extremely hazardous, with little or no personal protective equipment and no regard for safe working practices.

Presumably for practical reasons, Mrs Begum did not sue the most obvious tortfeasors, her husband’s employers or the yard owners, but instead issued proceedings against the former managers of the vessel, an English company. This enabled her to bring proceedings in the courts of England and Wales in negligence and unjust enrichment seeking damages under the Fatal Accident Act 1976, or, in the alternative, under the relevant provisions of Bangladeshi law.

Via an independent contractor the Defendant had arranged for the sale of the vessel for demolition to a third party domiciled in Nevis, which had sold it on to the shipyard. It was then beached at the shipyard for demolition. It was common ground that the Defendant had had no involvement with the vessel after sale, and that it had no control over or interest in the shipyard; but also that for present purposes it could be assumed that the Defendant was aware that the demolition would take place in Bangladesh rather than in one of the more reputable yards in China or in Turkey.

The Defendant applied for the claim to be struck out, or for summary judgment to be entered against the Claimant. At the hearing of the application Jay J considered whether the claim had a real prospect of success, based on the agreed assumption that English law applied.

The Application for Summary Judgment

The Defendant applied for summary judgment on the basis that nothing it did or failed to do caused the accident; that it had no control over the shipyard or its workers; and that it had not assumed any responsibility for them.

It was contended on behalf of the Claimant that the Defendant was fully aware when it arranged for the sale that the vessel was overwhelmingly likely to be broken up at a Bangladeshi shipyard, given the price agreed (which would have been much lower had a reputable shipyard been involved in the demolition), and the location of transfer (being Singapore, within reach only of disreputable shipyards, and of Chinese shipyards, which would have charged much more for demolition). Furthermore, so the Claimant averred, it was well known that Bangladeshi shipyards have scant regard for the safety of their workers, and, as a result, an unenviable track record of injuries and deaths. The net result of this, so it was said, was that the Defendant owed a duty of care to the workers in the shipyards at which its vessels would be dismantled.

The Judgment at First Instance

The primary claim proceeded on the basis that English law applied pursuant to Article 4(3) of Regulation (EU) No.864/2007 (‘Rome II’) on the basis that there was a manifestly closer connection to England than to Bangladesh. The judge had no difficulty in rejecting this ambitious argument.

The Claimant’s secondary argument, that the accident was ‘environmental damage’ within the meaning of Article 7 of Rome II, and thus arguably governed by English law, found greater favour, as did the Claimant’s tertiary argument, that the Bangladeshi one year non-extendable limitation period should be disapplied pursuant to Article 26 for reasons of public policy. Jay J declined to determine either argument on an interim basis, and therefore proceeded on the basis that English law applied to the claim.

The judge found, for the purposes of the application for summary judgment, that the Defendant’s sale of the vessel to a buyer who was sure to convey it to the dangerous Bangladeshi shipyards constituted an act rather than an omission. Having accepted that, it was inevitable that the workers at the shipyard would be exposed to risk of injury, and foreseeable that that risk would eventuate.

The immediate and proximate cause of the death of Mrs Begum’s husband was the active involvement of a third party, namely the shipyard; but it was arguable that the Defendant was responsible for that situation arising, in allowing the vessel to be sold to a buyer who would have it broken up at the shipyard.

Jay J concluded that the claim in negligence could proceed to trial:

“…My overall conclusion is that it is artificial and overly restrictive to say that the danger was created solely by the acts and omissions of the yard/employer in Bangladesh, particularly when these third parties were not acting deliberately in the sense of intending to injure the deceased. It was a danger which inhered in this end-of-life vessel once it was broken up, unless appropriate safety measures were taken…”

He did, however, strike out that part of the claim relating to unjust enrichment, finding it ‘not remotely arguable’ that the Defendant had been enriched at the expense of the Claimant.

In our briefing on Jay J’s judgment Jack Harding and I commented that we found the judge’s decision on applicable law surprising; surely, we opined, the claim did not fall within the definition of ‘environmental damage’, and, we added, how could a one year limitation period be disapplied for reasons of public policy, when a number of English limitation periods are shorter than this?

It is always gratifying when the Court of Appeal agrees with one’s views.

The Judgment on Appeal

It is noteworthy that Jay J himself gave the Defendant permission to appeal his refusal to strike out the claim, but only as to the existence of the duty of care. The Court of Appeal granted permission to appeal on the issue as to whether the claim was time-barred.

Coulson LJ’s judgment opens with what has become a familiar cri de coeur from the appeal courts:

“Notwithstanding what ought to have been the relatively narrow scope for debate on the appeal, the joint authorities filled 5 full lever arch files and ran to 64 separate cases, statutes or commentaries. As is so often the way, only a handful of those were of direct application to the issues on appeal.”

He then goes on to remind us that it will not generally be appropriate to apply for strike out or summary judgment where the claim arises out of a cause of action in a novel or developing area of the law (cf Barrett v Enfield DC [2001] 2 AC 550 and, more recently, Vedanta Resources PLC & Another v Lungowe & Others [2019] UKSC 20).

Coulson LJ goes on to consider the Claimant’s case in negligence, which he finds unconvincing, but not sufficiently so as to justify the claim being struck out, particularly against the backdrop of ‘one of the most fast-developing areas of the law of negligence at present’. At paragraph 71 he says:

claims based on a duty of care, in circumstances where the damage has been caused by a third party, are currently at the forefront of the development of the law of negligence. The alleged duty in this case could certainly be regarded as being on the edge of that development. But in such circumstances, I agree with the judge that, following the principle in Barrett and Vedanta, it would be inappropriate to strike out the claim based on the alleged duty of care on assumptions, in the absence of any findings of fact.”

As regards the Article 7 point, Coulson LJ gives the Claimant’s argument short shrift. The duty to the Claimant, he says, does not arise out of ‘environmental damage’ within the meaning of Rome II; and the injury to and death of her husband was not due to ‘environmental damage’, but to the lack of safe working practices at the yard.

With respect, this is clearly and obviously right; and it is only surprising that Jay J declined to determine the issue at first instance.

As for Article 26 of Rome II, this allows for the court to disapply the otherwise applicable law for public policy reasons:

“The application of a provision of the law of any country specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum” 

The Claimant’s arguments on general public policy grounds were given short shrift. Coulson LJ (citing with approval the decision in KXL v Murphy [2016] EWHC 3102 (QB)) observed that in order for her to succeed in her attempt to disapply the foreign limitation period on these grounds the Claimant would have to show that it was contrary to a fundamental principle of justice. Paragraph 114 of the judgment:

“Nothing here suggests that the Respondent has come anywhere close to meeting this high hurdle. The argument that it is manifestly less generous than the English limitation period is nothing to the point: as Sir Thomas Bingham MR noted in Durham v T & N PLC (1 May 1996, CA, unreported), it would be wrong to treat a foreign limitation period as contrary to English public policy simply because it was less generous than the comparable English provision. And, on analysis, that is the only point that the Respondent can make on public policy.”

The Claimant alleged that the application of the Bangladeshi one year limitation period would give rise to ‘undue hardship’ in her case. She was hampered in this submission by the fact that she had instructed solicitors within a year of the accident, however, but notwithstanding this Coulson LJ considered that there should be a preliminary hearing on the issue in order to determine whether the short Bangladeshi limitation period had, in the Claimant’s particular case, given rise to undue hardship such that it ought to be disapplied.

The matter has therefore been remitted to the Queen’s Bench Division for trial of the preliminary issue as to whether the claim is time-barred by operation of the Bangladeshi limitation period, or whether that limitation period should be disapplied because it would give rise to undue hardship in the Claimant’s case.

Analysis

The Court of Appeal clearly had considerable sympathy for the Claimant and for her husband, and indeed the other shipbreakers working in what appear to be highly dangerous conditions in the yards of Bangladesh. But the law most closely connected to these claims is manifestly that of Bangladesh, which has a one year limitation period, and no attempt to invoke Article 7 can detract from that fact. Nor can it be said that a one year limitation period, in and of itself, is contrary to public policy. Mrs Begum is now left in the position of having to prove that the operation of this limitation period, short as it is, will give rise to undue hardship in her case, even though she had been able to instruct solicitors within the limitation period. It is suggested that, on what facts have emerged and are recorded in the judgments of Jay J and of the Court of Appeal, this will be a difficult task in the circumstances.

The decision is an interesting reminder that the law never stands still, and that novel points can and should be taken so that the courts can test the boundaries of the duty of care owed to those who suffer injuries. But it is also a reminder of the importance of ascertaining and complying with foreign limitation periods where claims involve a foreign element.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury.

Written by or involving: Sarah Prager

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