20
Jun
22
Articles, Travel & Cross Border Claims
The Weekly Roundup: The Feline Edition

Today marks International Bring Your Cat to Work Day, a recipe for disaster if ever there was one, we’d have thought. The 1CL mouser is, as you’d expect, a sleekly efficient ruthless killer, but probably best kept away from laptops and remote hearings. But if we might doubt the wisdom of involving our feline friends in our work, we’re absolutely delighted to welcome to this edition of the Weekly Roundup a new contributor, Ben Rodgers, who joins us from 9 Gough Chambers. Our readers are never less than fully informed, so you’ll already be aware that 1 Chancery Lane and 9 Gough Chambers are soon to merge, forming what we like to think of as a Stellar Set, and in the coming weeks we will be introducing readers to our new colleagues and friends, starting with Ben.

But even with such exciting changes occurring, the courts continue with their work regardless, almost as if oblivious of the forthcoming Launch Festivities, and so it is that this week Ritchie J (formerly of 9GC, as it happens) determined (in Edwards v Slater & Gordon [2022] 5 WLUK 261) the latest hearing in the Slater & Gordon costs litigation. Briefly, he found in favour of the lay clients to the extent that he confirmed a disclosure order requiring S&G to disclose details of its retainers and associated information, and ordered the firm to answer a Part 18 Request relating to whether it had received secret commissions from insurers, but also held that S&G, whose hourly rate included an indemnity against adverse costs orders, had not entered into a contract of insurance with its clients; its retainers were contracts for legal services with a peripheral indemnity provision, and were not champertous. He also determined that disclosure should not be the norm in Part 8 proceedings for solicitor and own client costs assessments, but could be ordered under the court’s case management powers if to do so was in the interests of justice. Something of a mixed bag, then, as far as S&G were concerned.

Meanwhile, over in the Commercial Court Sir Ross Cranston (who, BTW, used to be MP for Dudley North) was giving judgment in Union of India v Reliance Industries [2022] 6 WLUK 58, holding that the principle in Henderson v Henderson [1843-60] 6 All ER 378 applies to arbitration proceedings as well as litigation, and that the rule preventing a party from raising arguments which could and should have been raised in earlier proceedings is a procedural and not a substantive one. The implications for cross border litigants are important; even where foreign law applies, the Henderson rule is still operative since it is procedural and therefore applicable by the courts of England and Wales irrespective of the applicable law.

 

Do Pets Resemble their Owners? Identifying Lawyers with their Clients

How often have you heard judge and counsel, at an interim hearing in a personal injury claim, call the claimant “it”?  Or refer to the only claimant as “the claimants”?

What is really going on here, we suspect, is that “it” or “they” refers not to the injured individual, but to the law firm representing the claimant.  The focus at a CCMC will often be on the lawyers: how much they intend to spend; what they have done; what they have failed to do.

Article 18 of the United Nations Basic Principles on the Role of Lawyers provides that “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”  One can imagine this principle needing citation in the courts of emerging jurisdictions such as Kenya (see Richard Malebe v DPP & o’rs [2020] eKLR).  Surely English lawyers get it instinctively?

And yet the CFA regime does seem to cause lawyers to identify, and be identified, with their clients more closely than they would like.  Ritchie J’s judgment last month in Edwards v Slater and Gordon UK Limited [2022] EWHC 1091 (QB) illustrates where we are up to.

“In the old days,” Ritchie J recounts, “when the world was young, the Government provided legal aid to injured claimants in most personal injury claims.”  That was withdrawn in 1999/2000 and the CFA system was set up.  At first claimants recovered ATE insurance premiums and success fees from losing defendants, but that was abolished in 2013 so that claimants themselves had to pay these out of their damages.  This created the potential for disagreement between solicitors and their clients.

Into the fray came checkmylegalfees.com.  By early last year they had at least 134 own-client assessment cases in the SCCO just against S&G, who applied to stay the claims on the basis that checkmylegalfees.com were the real litigant.  The claimants were, S&G said, mere passengers in their own claims.  Ritchie J was having none of it.  S&G were ordered to provide disclosure and answer a Part 18 question about alleged ATE kickbacks.  The claims against S&G were not champertous.  It was not fair to identify checkmylegalfees.com with its clients in that way.

Meanwhile, north of the border, our colleagues don’t seem to be fussed about being identified with their clients.  Thompsons Solicitors Scotland v. James Finlay (Kenya) Limited [2022] CSOH 12 concerned group proceedings brought by 1500 tea-pickers employed on the defender’s plantation in Kenya.  They allege that they have suffered musculoskeletal injuries as a result of performing repetitive manual handling over long hours carrying heavy tea baskets.  What is interesting for our purposes is that the tea-pickers’ solicitors, Thompsons, were asking to be appointed as the representative pursuer.

The Outer House of the Court of Session was concerned at “the apparent blurring of the distinction between a party and its advisors, and the improbable consequence that the applicant would be issuing instructions, as representative party, to itself.”  Though the court considered there was “absolutely no impropriety on the part of the applicant in putting itself forward as a representative party,” it was not persuaded that Thompsons was a suitable person to act as the representative party.

By the time it came before the Inner House the other day (Hugh Campbell QC v James Finlay (Kenya) Limited [2022] CSIH 29) the action had been reconstituted with a famous Scottish personal injury silk as the pursuer.

About the Author

Ben Rodgers was called in 2007 and practises from 9 Gough Chambers. He is well known to members of the 1CL travel team for his work as a cross border practitioner with a particular specialism in accidents at sea (being himself an excellent sailor), but he also undertakes clinical negligence and commercial work.

 

Never too late / What’s done is(n’t quite) done

It’s possible to ask a judge to re-consider an order in the window between it being made, and before it is sealed. The judge has the power to change the order in this period. But when should that power be used, and how should the judge decide whether to exercise it?

These were the issues considered by the Supreme Court in AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16. The Claimant had succeeded in an arbitration against the Defendant in Nigeria. The Defendant continued to challenge this in legal proceedings in Nigeria, whilst the Claimant sought to enforce the award in England and Wales. The Claimant obtained an enforcement order. The Defendant applied to set it aside. This was granted, on condition that the Defendant provide security for around half the sums sought, by way of a bank guarantee, within a certain time. The Defendant failed to provide the guarantee in time, and so the court re-instated the enforcement order. Before the order was sealed, the Defendant provided the guarantee to the Claimant, and asked the judge to amend the order. The judge agreed, extending the time for providing the guarantee, and setting aside the enforcement order. The Claimant appealed, and the Court of Appeal re-instated the enforcement order, permitting the Claimant to enforce the full sum sought. The Defendant appealed this to the Supreme Court.

The Supreme Court emphasised the court was required to do justice, in accordance with the Overriding Objective. This included the principle of finality, which is specifically referred to in the Overriding Objective (enforcing compliance with court orders). The judge had given this too little weight. The Court of Appeal had held that there should be a two stage test, with the court first considering whether it was right to entertain the application at all. The Supreme Court rejected this. The answer was for judges hearing such applications to recognise that finality is always a weighty matter in the balance against changing an order before it is sealed. The Supreme Court went on to consider the discretion afresh.

On one side of the scales was the finality principle, and also the fact that no good reason was provided for the delay providing the guarantee. However, on the other side, there had been a significant change in circumstances: the guarantee had been provided after the enforcement order, so that the Claimant could make use of it to partially enforce the judgment, rather than merely as security should the award survive the Nigerian legal proceedings. The Claimant had the benefit of both the enforcement order, and the guarantee, which was more than had ever been intended by the court. The Supreme Court agreed this would be a windfall. The Supreme Court concluded that enforcement should be permitted, but only up to the amount of the guarantee.

This is an important reminder of the importance of finality in litigation generally, particularly since the changes to the Overriding Objective introduced as part of the Jackson reforms. But finality isn’t everything, and, in some cases at least, what’s done isn’t quite done.

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.

 

…And Finally…

With the 1CL/9GC merger party firmly in mind, the team has been keeping a weather eye on caselaw relating to parties. And so it was that the Australian case of Dearden v Ryan & Another [2022] QSC 111 came to our attention. The Defendants gave what sounds like an extraordinary 21st birthday party for their son at their rural home in Queensland. At 11pm a wildfire broke out, and whilst extinguishing it one of the hosts became suspicious that it had been started deliberately using fuel from one of three jerry cans kept on the premises. He therefore hid the cans from plain sight and returned to the party. At around about midnight a group of revellers noticed that their friend, the Claimant, had disappeared, and went looking for him. Finding him asleep, one of the group decided to wake him by the simple expedient of setting his clothes alight, which he duly did, using fuel from one of the (inadequately hidden) jerry cans. The Claimant brought proceedings against his misguided friend and the party hosts, seeking damages for his resulting burn injuries. The court found in his favour against all Defendants, holding that the hosts had made available the alcohol which prompted the jape, and the fuel with which it was undertaken. Liability was apportioned 70/30 as between the fire starter and the hosts.

We confess to finding this decision slightly worrying; the clear implication is that it is reasonably foreseeable that guests will set each other alight if sufficiently intoxicated and if the means of doing so are not completely removed from their grasp. Memo to self: order fire extinguishers for the Merger Party.

Written by or involving: Andrew Spencer

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