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Articles | Mon 11th Apr, 2022
We are all, we hope, sticklers for ethics here, particularly when dealing with litigants in person. Which is why the judgment in Jenkinson v Robertson [2022] EWHC 756 (Admin) has saddened us to no small degree. We were greatly cheered, however, by the decision of the Court of Appeal in Chelfat v Hutchinson 3G UK Limited [2022] EWCA Civ 455, in which the refusal of the County Court to issue a claim form unaccompanied by a Form N510 was criticised in no uncertain terms; reassuring, perhaps, for those practitioners who might, for whatever reason, be issuing close to the expiry of a limitation period. And in news just in from the Court of Justice of the European Union, in Fuhrmann-2, Case C-249/13 it was determined that in order to be validly bound by an electronically formed contract, consumers must clearly understand on the basis only of the words appearing on the ordering button that as soon they click on that button they will be under an obligation to pay the supplier in question. It’s been a good week for consumers generally really; in Q, R and S v United Airlines, Case-C561/20 the CJEU continued in its pursuit of a consumer friendly approach in denied boarding cases.
‘The sound of silence’: Jenkinson v Robertson [2022] EWHC 756 (Admin)
The Facts
The Claimant was an unrepresented litigant who had sustained personal injury in a road traffic accident. One of the injuries alleged was essentially a mid-back injury. The insurer did not accept that the Claimant had sustained this injury. The principal issue at trial was whether there was any causative link between the accident and the mid-back injury. Causation and fundamental dishonesty were in issue.
At first-instance, HHJ Christopher Dodd considered that the claim was fundamentally dishonest for the following reasons:
The Grounds of Appeal
The appellant submitted that (1) there had been inadequate notice of the allegation of fundamental dishonesty, (2) the judge had wrongly reversed the burden of proof and (3) the judge had been wrong in relation to each of the factors in which he based his decision. The appeal in the High Court was heard by Mr. Justice Choudhary, who allowed the appeal on grounds 1 and 3.
Inadequate notice
There was no express notice given to the Claimant in advance of the trial that fundamental dishonesty would be alleged in relation to the onset of his symptoms. While there was correspondence asserting that the claim was ‘exaggerated’, this was insufficient. A claim that is unreasonable is not necessarily dishonest, it may be misconceived.
The Defendant had refused to provide any particulars of dishonesty prior to trial. This was in spite of the difficulties that the Claimant, as an unrepresented litigant, would face. At trial, it was never asserted that the Claimant was being dishonest about the onset of symptoms. He was merely asked whether he had in fact suffered the pain which he now alleged. Therefore, the appellant had not been afforded adequate notice of the allegations of fundamental dishonesty.
Burden of Proof
The judge weighed the evidence, and applied the balance of probabilities test in deciding the outcome. It could not be said that he was plainly wrong in the application of the burden of proof.
Errors
The Schedule. Properly understood, the Claimant was not claiming that he had paid someone £15 per hour for 50 hours per annum. Rather, he had paid someone to collect rent for which he was seeking a ‘reasonable rate’ of 50 hours at £15 per hour. This was explained by a letter sent to insurers’ solicitors. This letter was not disclosed at trial, nor was it brought to the court’s attention. Further, there was nothing in the Defendant’s submissions that would have alerted the Claimant that this was an issue that was to be relied upon in respect of fundamental dishonesty.
There was no consideration by the judge to as whether this dishonesty related to a fundamental matter in the claim, or had a substantial effect on the presentation of the case. The particular issue to which that belief related had become peripheral by the stage of trial, if not entirely irrelevant. HHJ Dodd’s findings were plainly wrong.
Expert Evidence. At trial, the Claimant had been unwilling to disclose a radiological report. The reason for this was that the Claimant had been previously advised that the report may be subject to litigation privilege. This was not brought to HHJ Dodd’s attention, nor was this material before the judge prior to hand down. Mr. Justice Choudhary concluded that the Claimant’s actions were dictated by his beliefs as to privilege, and objectively those actions were not dishonest. In any event, the judge did not have a full picture of events.
Multiplying the damages. In his judgment, the judge alleged that the Claimant had increased his claim from £10,000 to £50,000 on the Claim Form. The judge later accepted that the limit had in fact been increased from £10,000 to £250,000 on the Claim Form. The schedule of loss was pleaded in excess of £500,000; however, this was not a tenfold increase. There was no acknowledgement that the factor of 10 increase relied upon could not stand. Further, it appeared that the Claimant believed he had a claim worth well over £200,000 even before he had received the reports. This undermined the judge’s conclusion on dishonesty.
Other errors. The judge found that the Claimant had given different accounts as to when his thoracic spine symptoms had started. This was based on an error (which the judge admitted) that Dr. Tudor had recorded that the Claimant’s thoracic spine symptoms started “the day after the accident”, when it was recorded that symptoms started on the day of the accident. Mr. Justice Choudhary held that the judge had failed to revisit the allegations of fundamental dishonesty. This may have had a bearing on the judge’s overall assessment of the Claimant’s dishonesty.
Commentary
There are two points which are of special interest to travel practitioners. First, the judgment is a useful reminder to defendants to prepare thoroughly when making an allegation of fundamental dishonesty. References to damages being ‘exaggerated’, ‘unreasonable’ and ‘speculative’ in correspondence did not equate to an allegation of dishonesty. Indeed, the failure to plan for an allegation of fundamental dishonesty meant that relevant documents which purportedly explained the alleged inconsistencies in the Claimant’s case were not present in the trial bundle. Insurers must be precise in alleging dishonesty and give Claimants sufficient notice to answer the allegation.
Second, this judgment is an important reminder of the additional duties imposed on lawyers who deal with unrepresented litigants. The difference in power dynamics makes it especially important that the nature of any fundamental dishonesty allegation is understood by unrepresented litigants and that adequate time is given so that they can consider the defence. The failure of the Defendant’s insurer to plan for this resulted in a successful appeal. As Mr. Justice Choudhary put it, ‘The interests of fairness would generally militate against requiring a litigant to deal with a submission of fundamental dishonesty “on the hoof” or immediately after it is raised for the first time in closing submissions’.
About the Author
Anirudh Mandagere is a probationary tenant. He previously worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics. He looks forward to building a practice in all of chambers’ specialisms, including travel law.
‘Endless Forms Most Beautiful’: Court of Appeal confirms that requirements for service out of the jurisdiction are not required to bring a claim for the purposes of limitation
In Chelfat v Hutchinson 3G UK Ltd [2022] EWCA Civ 455, the Court of Appeal considered that the failure to complete Form N510 for service out of the jurisdiction did not entitle the court to refuse to issue a claim form. The Court confirmed that procedural requirements relating only to service were not necessary for bringing the claim for limitation purposes.
Background facts
On 14th December 2009, the Appellant purchased a dongle from the respondent’s store, which she asserted the Respondent’s employee installed on her laptop. It was her case that, because of how the dongle was installed, her laptop was damaged and she lost a number of valuable items of information, including photographs. She was refunded. On 16th December 2009, she purchased a replacement dongle from a different store belonging to the Respondent. That dongle did not work and slowed down her laptop. The Appellant attempted to return the second dongle to the store on 30th December 2009, but was refused a refund.
In Autumn 2015, the Appellant asked the Respondent about the correct address for serving legal proceedings, and says that she was given an address in Scotland. On 9th December 2015, the Appellant sent to the County Court Money Claim Centre in Salford (“CCMCC”) a Claim Form, Particulars of Claim, and a witness statement. The Claim Form gave the Defendant’s address for service as the address in Scotland. These documents were delivered to the CCMCC on 11th December 2015, three and five days within the limitation period for the first and second dongles respectively for actions in contract and tort.
The CCMCC did not issue the Claim, and in a letter dated 17th December 2015, told the Appellant this was partly because she had not completed Form N510. There was evidence before the Court that the Appellant only became aware of the letter of 17th December 2015 on 30th August 2016.
The Appellant then issued proceedings on 29th December 2016, this time with an address for service of the Respondent in Maidenhead. Since the proceedings were brought under contract and tort, both of which have a six year limitation period, they were prima facie statute barred. The Appellant argued that, since the claim form was in precisely the same terms as the claim provided to the CCMCC on 11th December 2015, with the exception of the address for service, 11th December 2015 was the effective date for limitation purposes.
The Respondent applied to strike out the issued claim on the grounds that it was statute barred, and was successful on the papers
The Appellant applied to have the decision to strike out set aside. The first instance judge found that the failure to file Form N510:
“was a non-trivial procedural error that, if at that time, as constituted, Ms Chelfat wished to issue the claim out of the jurisdiction in Scotland and serve it there, then it was incumbent upon her to have accompanied the claim form with an N510, and the absence of that form meant, in my judgment, that the claim was not properly constituted or otherwise in order for it to be issued, and that is made clear by the Practice Direction, paragraph 2.6B, that the claimant must file that form and it is given emphasis by the Rule itself that the claim form cannot be served until that notice is filed or the Court gives permission.
I accept that CPR 6.34 does not talk about issue, but it seems to me that the limitation provision can only be satisfied if there is a properly constituted claim which satisfies all the procedural requirements”.
The Appellant appealed this decision. At the first appeal it was held that “the judgment of District Judge Avent discloses no error of law or perversity. He found, correctly, that CPR 6.34 applied and that it was a mandatory requirement that the Appellant serve and file a form N510. He found that the requirement in CPR 6.34 was not a trivial procedural error. District Judge Avent found that the proceedings in 2016 were new proceedings and the new claim was one year, two weeks out of time. There was no discretion to extend the limitation period.”
The Appellant then appealed that decision to the Court of Appeal.
The Court of Appeal
Permission to appeal was then granted on limited grounds, and by the time the Court of Appeal heard the matter, there were two issues left for it to decide:
Taking them in turn:
1.Refusal to Issue
The Court found that the CCMCC did not have the power to refuse to issue the Claim Form in December 2015, for three reasons.
First, it found that the provisions of CPR 6.34 are straightforward. It provides:
(1) Where the claimant intends to serve a claim form on a defendant under rule 6.32 or 6.33, the claimant must –
(a) file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction; and
(b) serve a copy of that notice with the claim form.
(2) Where the claimant fails to file with the claim form a copy of the notice referred to in paragraph (1)(a), the claim form may only be served –
(a) once the claimant files the notice; or
(b) if the court gives permission.
The Court held “The sanctions for failing to file Form N510 with the claim form are set out in r.6.34(2): the claim form cannot be served until Form N510 was filed, or the court must give permission for service. The rule therefore sets out both the requirement and the sanction, if the claimant does not comply with that requirement” (at [39]). It went on to find that the rule is “manifestly not concerned with the issuing of claim forms… it would be to rewrite the rule to introduce an unexpressed sanction, to the effect that a failure to file Form N510 justified the non-issue of the claim form” (at [42]). Since there was nothing in the rule to do with issue or non-issue of the claim form, it did not permit the CCMCC to refuse to issue the Appellant’s claim form.
Secondly, the Court found that none of the authorities supported the proposition that the lack of Form N510 justified the non-issue of the claim form. It was also noted that in all the authorities relied upon, the claimants’ failures in respect of Form N510 were not fatal to the continuance of the claim.
Thirdly, there was a concern about the authority of the CCMCC to refuse to issue the claim form at all. It was accepted that, although the staff at the CCMCC are not performing any judicial function, there was no justification for the refusal to issue a claim form “which was itself in proper form… it would take exceptional circumstances – far beyond the facts of this case – for a court’s refusal to comply with a legitimate request to issue a claim form to be even arguably justified” (at [47]).
2. Is it arguable the Claim was brought in December 2015?
The Court of Appeal set out that the limitation position is frozen, and time stops to run, when an action is “brought”, which can be earlier than the actual date of issue of the claim form Practice Direction 7A, paragraph 5.1, provides:
Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.
The Court then found that, provided the substantive content of the two claim forms was the same, “then the claim form that was received by the CCMCC in December 2015 was the claim form that was issued the following year” (at [55]). Changing the address for service had no bearing on the claim itself.
It found that, for the purposes of the Limitation Act, the claim was brought in 2015: “The court wrongly failed to act on the appellant’s request to issue the claim form and that was the only reason that the subsequent claim form was struck out as being statute-barred” (at [56]).
The Court considered whether the Appellant had done everything she could reasonable have done to bring the matter before the court in the appropriate way at the appropriate time. It found that she had, restating that Form N510 was only to do with service, and there was no connection between that form and issue (at [58]).
Conclusion
Although this case is unusual on its facts, it provides clarity on what procedural steps are required of a claimant for the purposes of limitation: delivering the claim form in due time to the court office, accompanied by a request to issue and the appropriate fee. A procedural requirement relating to service can only have an impact in relation to service of the claim, not to issue.
It also indicates that a common-sense approach should be taken in relation to what sanctions apply to breaches of rules. Where a sanction for breach of a rule has been expressly stated, further or differing sanctions are not to be read into that rule, and in particular, a sanction that is unrelated to the content of the rule is not to be implied.
About the Author
Kerry Nicholson is a probationary tenant. She undertook pupillage with the Government Legal Department and on secondment at Henderson Chambers and is looking forward to working within the team at 1CL on travel related and other claims.
‘Leaving on a Jet Plane’: Q, R and S v United Airlines (Case C-561/20)
In this case three air passengers made a single reservation, via a travel agency, with Lufthansa for a flight from Brussels to San José, with a stopover in Newark. The entire connecting flight was operated by United Airlines, a carrier established in the United States. The three passengers arrived at their final destination with a delay of 223 minutes.
Their agent, Happy Flights, issued a claim for compensation against United Airlines before the Brussels Company Court, arguing that the Regulation on Air Passengers Rights (Regulation No.261/2004) was applicable. United Airlines disputed this on the grounds that:
Third Country
Article 3(1)(a) of Regulation No 261/2004 provides that flight delay compensation applies to passengers departing from an airport located in the territory of a Member State. The Court noted that it had consistently held that a flight with one or more connections which was the subject of a single reservation constitutes a whole for the purpose of the right to compensation under Regulation No 261/2004. It followed that the place where the delay occurs has no bearing on that applicability. Further, the object of consumer protection pursued by Regulation No 261/2004 means that making a distinction between whether the delay occurred on the first or second leg of the flight would be unjustified.
No Contract of Carriage
An air carrier which performs a particular flight, including fixing its itinerary and which offers to conclude a contract of carriage with members of the public, must be regarded as the operating air carrier. The absence of a contractual link between the passengers concerned and the air carrier is irrelevant, providing that the carrier has established its own contractual relationship with the air carrier. In those circumstances, United Airlines must be regarded as the operating air carrier.
Further, the mere fact that a non-EU air carrier does not have a contract with the passengers is irrelevant to the payment of compensation. The party liable to pay compensation can only be the ‘operating air carrier’ within the meaning of Article 2(b) of the Regulations. The carrier which, in the course of its passenger carriage activities, decides to perform a particular flight, including fixing its itinerary, constitutes the operating air carrier. That carrier is therefore regarded as acting on behalf of the contracting carrier.
International Law
Regulation No 261/2004 is consistent with the principle of customary international law that
each State has complete and exclusive sovereignty over its airspace. A connecting flight falls within the scope of the regulation on the ground that the passengers have started their journey from an airport located in a Member State. This applicability criterion does not undermine the conditions for the application of the principle of complete and exclusive sovereignty of a State over its airspace.
Commentary
There are two points for travel practitioners to draw on from this case. First, the CJEU has confirmed that the scope of Regulation EC 261/2004 applies to connecting flights in non-EU states. It therefore follows that any flights which depart from EU member states, but face a delay while connecting in the UK, will be subject to passenger compensation. Therefore, the focus on analysis under Article 3(1)(a) is the location of departure, rather than the location of delay.
Second, Regulation (EC) 261/2004 has now been transposed into English law under the Air Passengers Rights and Air Travel Organisers’ Licensing Amendment (EU Exit) Regulations 2019. Therefore, British passengers enjoy the same coverage on paper as they did under the previous EU regime. While United Airlines will not be binding on the UK courts, the courts are likely to take into account this judgment when interpreting the corresponding provisions under the 2019 Regulations.
About the Author
Anirudh Mandagere is a probationary tenant. He previously worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics. He looks forward to building a practice in all of chambers’ specialisms, including travel law.
…And Finally…
We know you’re all still reeling from the shock news that the new edition of Saggerson on Travel Law is going to print as we speak (and yes, you’re all invited to the publication party); today we bring you news that the 16th edition of the Judicial College Guidelines for the assessment of general damages in personal injury cases is out now. The new edition contains a new chapter on work-related limb disorders, which will come in handy, and another new section on damages in sexual abuse claims. There’s also new guidance in relation to the application of tariff-based awards. The Guidelines have been adjusted to account for inflation and have largely been shorn of the pre-Simmons v Castle [2012] EWCA Civ 1039 figures. We should also add that in stark contrast to the elegant and restrained dark green velum of the new Saggerson the Guidelines’ publishers have gone for maximum shock value in their choice of cover colour. It reminds the team at 1CL of the days of our youth, when after dining not wisely but too well at birthday parties our mothers would give us a dose of Pepto-Bismol.
