01
Jun
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Apolitical Edition

What a lovely weekend! But while the 1CL vegetable patch received some much-needed attention (our strawberries are coming on a treat, but we’re a martyr to slugs), we also spent the long weekend brushing up on our jurisdictional challenges. There seem to be a lot of them about, post-Brexit; if you’d like to learn more, Sarah Prager and Ella Davis have all the answers, or at least some of the questions, here: Webinar Recording: Brexit: Taking Stock.  Last week’s webinar on the subject was every bit as enjoyable as you’ve come to expect from the team at 1CL, with some trenchantly expressed views on the wisdom of using judicial cooperation and litigants’ rights as political footballs. Meanwhile, the courts have been busy trying to avoid making political points, first in relation to recognition and enforcement of foreign judgments, and then regarding a Claimant’s right to squabble with the Defendant’s experts.

 

Recognition and Enforcement of Judgments in the English Courts

In London Steam-Ship Mutual Insurance Association Ltd v Spain M/T ‘Prestige’ [2021] EWHC 1247 (Comm), Butcher J was asked to consider the principles relevant to the recognition of foreign judgments and specifically Article 34 of Council Regulation (EC) No.44/2001 (“the Regulation”). Due to the need for brevity, the focus of this note is on Butcher J’s exposition of the principles underlying Article 34.

Background

The background to this decision is lengthy and complex. For the purposes of this note, it suffices to say as follows. The underlying dispute arose out of an oil spill that occurred off the coast of Spain in November 2002 following the total loss of the M/T ‘Prestige’ (the “Vessel”). The London Steam-Ship Mutual Insurance Association Ltd (“the Club”) provided pollution indemnity insurance to the shipowners and the insurance contract included an arbitration clause providing for ad hoc arbitration in London under the Arbitration Act 1996. Civil proceedings (together with criminal proceedings) were pursued by Spain against the shipowners and the Club before the Spanish courts. After those proceedings commenced, the Club was granted an award in London that Spain was bound by the arbitration clause contained in the contract of insurance, and the arbitrator also upheld many of the Club’s claim for negative declaratory relief in respect of non-CLC liability (see [15]). The Club then successfully sought permission pursuant to s.66 of the Arbitration Act 1996 to enforce the Award as a judgment and/or to have judgment entered on its terms. Spain attempted to resist enforcement on various grounds, though ultimately unsuccessfully. Soon after, Spain obtained judgment in the Spanish courts to the effect that the Club was held liable subject to the $1bn limit in its contract of insurance.

On 26 March 2019 Spain issued a Part 23 application seeking to enforce the Spanish Judgment against the Club pursuant to the Regulation. On 28th March 2019 Master Cook granted the Registration Order ex parte. On 26th June 2019 the Club issued appeal proceedings seeking to set aside the Registration Order pursuant to the appeal procedure mandated by Art. 43 of the Regulation.

Art. 34(1)

Butcher J’s judgment was focused principally on the exception in Art. 34(1), as the other issues had been referred to the CJEU: see [36]-[38]. Art. 34(1) of the Regulation provides: ‘A judgment shall not be recognised: (1) If such recognition is manifestly contrary to public policy in the Member State in which recognition is sought.’ The main principles applicable to the application of the Art. 34(1) exception were summarised by the CJEU in Diageo Brands BV v Simiramida-0D EOOD [2016] Ch 147 at paras 41 to 68 and Butcher J repeated the relevant principles at [43]. The key takeaways were that a) Art. 34(1) has to be interpreted strictly and will only be applicable in exceptional circumstances;

b) EU law (and thus CJEU) sets the limits of public policy which are capable of being relevant for the purposes of Art. 34(1); and

c) the relevant test is whether “recognition would constitute a manifest breach of a rule of law regarded as essential in the legal order of the state in which recognition is sought or of a right recognised as being fundamental within that legal order” (see [44]).

One topic of debate was the meaning of the requirement that any breach should be “manifestly” contrary to public policy. Even though a review of the substantive decision of the Court of the other Member State was not permitted, Butcher J found that the word “manifestly” could not operate so as to rule out a sufficient investigation of the facts to understand the nature of the violation of public policy contended for (see [49]). The word “manifestly” did however emphasize that it must be apparent that the judgment is “plainly or obviously contrary to public policy” (see [49]).

Judgment

It was argued by the Club that the recognition of the Spanish judgment would involve a manifest breach of English public policy because that judgment involved a breach of human and fundamental rights – namely, a contravention of Art. 14(5) of the ICCPR; a breach of fundamental rights in the Master being convicted on the basis of new factual findings made by the Supreme Court; an inequality of arms; and a contravention of the A1P1.

Having considered the grounds of challenge in detail, Butcher J found no basis on which to refuse enforcement of the Spanish judgment pursuant to Art. 34(1): see [54]-[68]; [74]-[88]; [98]-[110]; and [121]-[126]. Butcher J’s reasoning in this makes clear that, save in clear cut cases, it will be difficult to resist enforcement of a foreign judgment on the basis of Art. 34(1) of the Regulation.

About the Author

Henk Soede was called to the Bar in 2019. Since April 2020, he has been instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims. He is eager to build on his experience in these areas​, but accepts briefs in all chambers’ areas of work.

 

Is failing to engage or cooperate with an expert an abuse of process? An analysis of Kasabaqi v Westway Community Transport Ltd [2021] 5 WLUK 326 (QB)

A recent decision of the High Court, namely Kasabaqi v Westway Community Transport Ltd [2021] 5 WLUK 326 (QB), provides an interesting insight into the approach the court may adopt when a party fails to cooperate or engage with another party’s experts.

Kasabaqi concerned a claim that arose out of a road traffic accident, following which the Claimant’s leg was amputated. Liability was not in dispute between the parties and the matter simply proceeded in respect of quantum. The Claimant was subsequently examined by 13 different experts, including seven of his own experts and six of the Defendant’s experts.

The Claimant was due to be examined by two further experts, M and H, who were appointed on behalf of the Defendant. The Claimant failed to attend a scheduled appointment with M, as he needed to collect a new prosthesis that same day. A later appointment with M was also cancelled, as the Claimant could not be reached. In addition, the Claimant’s appointment with the Defendant’s rehabilitation expert, H, had been cancelled at short notice and was subsequently rearranged. H unfortunately arrived late at the rescheduled appointment, and both H and the Claimant proceeded to have an argument, such that H declined to act as an expert. The Defendant attempted to instruct a different rehabilitation expert, who also declined to act, after learning that the Claimant had been hostile towards another expert in the claim.

The Defendant decided to make a strike out application on the basis that the Claimant had failed to confirm and attend appointments with their experts and had been abusive towards one of them. In the alternative, the Defendant sought an unless order. The Defendant contended that the Claimant’s conduct had deprived the Defendant of its right to defend itself and that his claim was an abuse of process.

The application came before Farbey J, who did not consider that the Claimant’s conduct was an abuse of process. The court noted that it was unfortunate that the Claimant’s appointment with M clashed with a prosthesis appointment. It was emphasised that it was not a matter for the court to determine who was at fault in respect of the argument between the Claimant and H, and Farbey J was not persuaded that the Defendant was unable to have a fair trial. Many of the experts had already examined the Claimant and there was no evidence that the Claimant was generally hostile towards those experts. Given that this was a claim in which liability was admitted, and the Claimant was a young man whose leg had been amputated, the court considered that it would be unfair to shut him out from his claim. Farbey J further declined to impose an unless order on the claimant, as it was deemed unnecessary and unjust.

This is certainly an interesting decision. However, the fact that this was a liability admitted claim, in which the Claimant had been seriously injured, undoubtedly had a bearing on the decision. If a party had adopted a similar approach in a claim where liability remained in dispute, and the injuries sustained were less serious, it may well be that a court would adopt a harsher approach.

About the author

Ranked by the Legal 500 2021 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

 

…And Finally…

We were intrigued to read of the latest tourism trend sweeping the People’s Republic of China; so-called ‘red tourism’. It seems that as a result of the pandemic domestic tourism in China has soared, to the extent that in 2020 11% of domestic travel was comprised of Chinese people visiting ‘red sites’, locations of interest in the rise of Chinese communism. July 2021 will see the 100th anniversary of the founding of the Chinese Communist Party, and efforts to take advantage of the milestone continue apace, with Ctrip, China’s largest travel booking platform, launching 100 unique routes for ‘red pilgrims’ earlier this year. Some of the packaged tours include experiences such as reciting the admission oath for the Chinese Communist Party and singing revolutionary songs, leading us to wonder whether these can be described as ‘tourist services’ for the purposes of the Package Travel and Linked Travel Arrangements 2018.

Written by or involving: Dominique Smith, Henk Soede

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