05
Jul
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Bills, Bills, Bills Edition

Disappointed by our failure to break the Hancock Affair story last week, we were determined to do better this week, and in our rummagings in the bins of the Palace of Westminster we turned up two private member’s bills which we thought might be of interest to readers. First, as widely reported elsewhere, the Secretary of State for Transport has introduced the Motor Vehicles (Compulsory Insurance) Bill, which is designed to exclude Vnuk liability of motor insurers in relation to accidents occurring on private land and involving modes of transport such as agricultural machinery, mobility scooters and other light electrical vehicles. It now seems that it is the government’s intention to turn back the clock so that it will be as if Vnuk v Zavarovalnica Triglav (Case C-162/13) had never been decided by the CJEU, thus wiping the slate clean of decisions of the English courts in such cases as Wastell v Woodward [2017] 2 WLUK 717, Lewington v MIB [2017] 10 WLUK 672, MIB v Lewis [2019] 6 WLUK 26 and Colley v Shuker [2020] 12 WLUK 183).

Secondly, the House of Lords is considering the Organ Tourism and Cadavers on Display Bill, which seeks to introduce penalties for UK citizens and residents travelling abroad for organ transplants when it is not clear that donors have given appropriate consent. It would also impose the same consent requirements for imported cadavers used in exhibitions as exist for UK-sourced cadavers (this in the context of previous exhibitions having featured real human bodies that may have been the remains of non-consenting individuals such as Chinese prisoners of conscience). The latter Bill raises all kinds of alarming questions: is Organ Tourism a Thing? If it is a Thing, who’s regulating it? Do people really go on Organ Tourism packages? What happens if the organ was not donated by a consented donor? Could the recipient then bring proceedings under the Package Travel and Linked Travel Arrangements Regulations 2018? What would be the measure of loss? The more we looked into the issues raised by the Bill the more appalled we became.

 

Trial Bundles: Who Pays?

In our brave new electronic world, the preparation and service of trial bundles (or e-bundles) has attracted a good deal of judicial attention. Most recently, in Axnoller Events Ltd v Brake & Ors [2021] EWHC 1706 (Ch) HHJ Paul Matthews (sitting as a Judge of the High Court) was asked to consider an application to vary a court order which provided for service of an e-bundle only. It was alleged by the applicant that she required a hard-copy bundle provided free of charge in order to prepare properly for trial. For reasons set out below, the application was dismissed.

Background

The underlying dispute concerned two interrelated claims which are due to be heard sequentially at the end of Summer. The first (the “possession claim”) involved a claim for possession of a property (West Axnoller Farm) from the defendants (the “possession claim”). The second (the “eviction claim”) involved a claim for unlawful eviction concerning another nearby property brought by the defendants in the first case. For ease of reference, the claimant in the first case and the defendant in the second case are referred to as “the Guy parties” and the defendants in the first case and the claimants in the second case are referred to as “the Brakes”.

In a prior hearing ([2021] EWHC 828 (Ch)), Marcus Smith J had made various orders regarding the preparation of trial bundles for trial. Specifically, it had been ordered there should be a “single combined bundle for the trial of the Possession Proceedings and the Eviction Proceedings” and that the Guy Parties were “responsible for producing the Bundle.” It was further ordered that the “Guy Parties shall provide the Brakes with an electronic copy of the Bundle (who shall be responsible for preparing their own hard copies, if so advised) and lodge a hard copy at Court.”

On 11th June 2021 notices of change of solicitor were filed in all the matters and it was confirmed that the Brakes were now acting in person with Mrs Brake acting as their advocate. On 16th June 2021 Mrs Brake sent an email to the court stating that although an electronic bundle had been provided to her previous solicitors they had not provided her with a hard copy before they ceased to act. Mrs Brake had asked the Guy Parties for a hard copy but they declined to provide it unless they were reimbursed for the copying and courier charges. Accordingly, Mrs Brake asked the court to vary the direction of Marcus Smith J on the basis that the Brakes did not have enough money to pay for the hard copy bundle and that Mrs Brake was at a “massive disadvantage as a litigant in person” and needed a physical bundle. On 17th June 2021 the Guy Parties’ solicitors sent a hard copy of the trial bundle to the Brakes and confirmed they would be sending an invoice for reasonable copying and courier charges.

Decision

HHJ Paul Matthews first considered CPR 39.5(1) and the relevant practice direction. CPR 32 PD27.13 refers to the claimant’s solicitors supplying all parties with identical copies of the bundle. HHJ Matthews found that Marcus Smith J’s order departed from that in expressly providing that the Guy Parties should supply only an electronic copy to the Brakes, whilst the Guy Parties should nevertheless lodge a hard copy with the court. Nevertheless, it was noted at [17] that practice directions are statements of practice, and not legislation (see KU v Liverpool City Council [2005] 1 WLR 2657 at [48]). HHJ Paul Matthews concluded: “it is open to the court, where the justice of the case requires, to direct that the party filing a hard copy bundle need supply only an electronic copy to another party”, as Marcus Smith J did. Further, a hard copy had been provided to the Brakes and there was nothing in the Practice Direction which required the supply of copy trial bundles to be free of charge: see [23].

It was argued by the Brakes that ceasing to be represented by solicitors amounted to a material change in circumstances that justified a variation of that order. HHJ Paul Matthews disagreed: there was no clear reason why the need for a hard-copy bundle without payment would arise from their solicitors ceasing to act (see [25]). HHJ Paul Matthews also reminded himself that it is not generally right to give advantages to litigants in person which are not given to represented litigants: see Barton v Wright Hassall [2018] 1 WLR 1119 at [18]. Accordingly, ceasing to be represented was not of itself a sufficient reason to vary the order.

The issue raised by Mrs Brake as to her impecuniosity was also deemed insufficient to justify a variation of the order: see [27]. It was noted that it was not as if the Brakes did not have access to the trial bundle – they had an electronic copy [28]. Although Mrs Brake did not refer to Article 6 of the ECHR in her email, the issue was briefly considered by the Judge, who found that Article 6 did not require that a copy of the trial bundle be supplied free of charge to one party by the other: see [30].

Conclusion

For all of those reasons, it was found that there was no justification to vary the order of Marcus Smith J. The Brakes had been supplied with an electronic bundle and if they wanted a hard copy there was no reason why Guy Parties’ solicitors should not charge for it.

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.

 

Interim Payments: How Much?

The High Court has recently provided an important update to the limits of an interim payment application in AL v Collingwood Insurance & Ors [2021] EWHC 1761 (QB)[1]. Broadly, an interim payment can take into account a likely award for future loss, subject to a number of fairly stringent tests.

This article seeks to explain that test and to provide a reminder as to the operation of interim payments generally.

Basic Principles

An interim application is applied for in the following way:

  • A claimant may apply for an interim payment at any time from after the expiry of the deadline for filing an acknowledgment of service- CPR 25.6(1).
  • In principle, any number of such applications can be made- CPR 25.6(2).
  • An application must be made in the usual way, using N244 and supported by evidence, to be served at least 14 days before the application is heard- CPR 25.6(3). There is no need to re-file or re-serve evidence relied upon in support of the application which has already been filed or served, as may be- CPR 25.6(6).
  • A defendant can participate in the hearing, but if oral evidence is to be called, a witness statement must be served at least 7 days before the hearing- CPR 25.6(4).
  • The claimant can respond to this evidence by serving a statement at least 3 days before the hearing- CPR 25.6(5).
  • An interim payment may be ordered as a lump sum or by instalments- CPR 25.6(7).

Under CPR 25.7(1), a court may only make an interim payment where one of the following applies:

  • Liability is admitted subject to quantum.
  • Judgment has been obtained for an amount to be assessed.
  • The court is satisfied that the claimant would obtain judgment against the defendant- or at least one of the defendants where that defendant is insured- for a substantial sum of money other than costs.
  • In a claim for possession of land, the interim payment sought is in respect of the defendant’s occupation of the land.

Under CPR 25.7(4), the court must not “order an interim payment of more than a reasonable proportion of the likely amount of the final judgment”. That must take into account any contributory negligence, set off, or counterclaim- CPR 25.7(5). But may it take into account any future loss? That was the question before the court in AL v Collingwood.

A court may adjust an interim payment, made voluntarily or pursuant to an order- CPR 25.8(1); including an order that all or part of it be repaid, or the order discharged, or order a defendant to reimburse a paying defendant- CPR 25.8(2) and (3), whether of its own initiative or on a party’s application; or, if judgment has been obtained for a lesser sum than the interim payment, order payment of interest on any sum to be reimbursed- CPR 25.8(5).

The making of an interim payment is not to be disclosed to the trial judge- CPR 25.9.

AL v Collingwood: the Decision

The claim was brought by the family of a seven-year-old girl who had suffered severe brain injuries during a road traffic accident. Liability was admitted by the third-party insurers, and judgment had been obtained against the third-party, so CPR 25.7(1) was met.  Various interim payment applications had already been made, and orders obtained. Recall that any number of applications can in principle be made under CPR 25.6(2).

The Claimant then applied for a further £500,000 interim payment. But this included a claim in respect of future loss, specifically, a further £150,000 in respect of the cost of future care, and a further £350,000 to enable the purchase and adaptation of the Claimant’s accommodation. There was a particular need for the purchase of this specific property because its familiarity to the Claimant and location relative to a school suitable for her needs was expected to mitigate behavioural issues which had been caused by the accident, and to optimise recovery.

The third party insurer sought to argue that CPR 25.7(4) did not allow the Claimant to claim an interim payment in respect of such loss, arguing that “a reasonable period” implied that an interim payment should only be in respect of a further period of 12 months, whether on grounds of jurisdiction or in the exercise of the court’s discretion.

The High Court considered that CPR 25.7(4) did not restrict the courts jurisdiction in this way, either expressly or impliedly; and previous consideration of the same issue in Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204[2] had not reached such a conclusion (see paras.33-35). In addition, the court considered that such a restriction would obstruct settlement and offers in respect of rehabilitation (see para.37).

At paras.36-37, the court set out factors which were suggestive that the application should be granted:

  • There is a real need for the interim payment requested.
  • There is a real need for accommodation now (as opposed to after the trial).
  • The amount of money requested is reasonable.
  • That, though it was “encroach[ing] on the trial judge’s freedom to allocate between an immediate capital sum and periodic payments” it was “prepared to predict that the trial judge would take or endorse this course…with a high degree of confidence.”

In principle, therefore, such an application has a good prospect of success where a real and immediate need is shown, and the sum is reasonable having regard to the likely form of order the court will make.

Similar principles would no doubt apply to other sorts of future loss; for example, if an interim payment is sought which takes into account a proportion of future loss of earnings, though in fairness the court’s remarks in respect of rehabilitation would not apply in such circumstances.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus.

 

…And Finally…

In the latest chapter of the Great Refund Saga the European Court of Auditors has produced a report on the treatment of passenger rights during the Covid-19 pandemic. To the surprise of no one whatsoever, it found that passengers’ rights have not been safeguarded during the last year or so. The Auditors, whose superhero name is Guardians of the EU Finances (surely soon to be coming to a cinema near you?), point out that airlines have received billions of Euros in state aid, but that this aid was not made conditional upon passengers being reimbursed in accordance with Regulation (EC) No.261/2004 (‘the Denied Boarding Regulations); and a distinction was drawn between airlines and tour operators, whose aid packages were made conditional upon passengers’ rights under Directive (EU) 2015/2302 (‘the Package Travel and Linked Travel Arrangements Directive’). They are in no doubt where to lay the blame for this state of affairs:

“The Member States took these decisions for airlines despite the fact that the Commission had made it clear that under State aid rules they could do so. The Commission made efforts to protect air passenger rights and took action to mitigate the effects of the crisis on passengers, but the legal framework means that the Commission had limited power to ensure that Member States enforce these rights.”

Amongst other recommendations, the Auditors advise that there should be greater coordination of national measures and a stronger link between state aid to airlines and reimbursement of passengers.

What the European Council will make of these recommendations is anyone’s guess; but it does appear that the EU as a whole continues to maintain its passenger protection agenda, which may, in turn, influence the English courts when they come to consider these cases, both under the Denied Boarding Regulations and under the Package Travel and Linked Travel Arrangements Regulations 2018.

Written by or involving: Robert Parkin, Henk Soede

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