The Weekly Roundup: The Frankie Howerd Edition

Articles | Mon 7th Mar, 2022

This week has brought a number of case management decisions which might lead those responding to claims to ask themselves whether they’ve entered The House In Nightmare Park. In Klifa v Slater [2022] EWHC 427 (QB) further guidance was given on the rules on forum conveniens, and in particular legitimate juridical advantage, leading the English court to accept jurisdiction over a claim arising from an accident in France, brought by a French Claimant, and with exclusively French witnesses. In PGI Group Limited v Magret Thomas & 30 Others [2022] 2 WLUK 360 an appeal against a refusal to grant a costs capping order was not permitted. Meanwhile, the judge in Preston v Beaumont [2022] EWHC 440 (Ch) rejected an application for costs from a successful respondent to an appeal on the basis that it had failed to comply with the terms of CPR40 PD40E, para.4.4, or to make an application for relief from sanctions. The relevant provision reads:

“Where a party wishes to apply for an order consequential on the judgment the application must be made by filing written submissions with the clerk to the judge or Presiding Judge by 12 noon on the working day before handing down.”

The successful respondent had not complied, and there was no wriggling out of the consequences of that failure. The case is a useful reminder to practitioners that merely winning the argument is not always enough; before Jumping For Joy it is necessary first to make any required application for the consequential orders which might be thought to flow naturally from the result. Otherwise there’s a danger of finding oneself Further Up The Creek.

Happily Sarah Prager and Dom Smith will be giving a webinar on Thursday 10^th March on How To Get The Most Out Of Your Case; join them on this link as they talk Tactics, Strategy and Case Management.

A funny thing happened on the way to the forum: Klifa v Slater [2022] EWHC 427 (QB)

This judgment must be read by all those who practise in cross jurisdictional claims. It concerned an application brought by the Defendant for the Claimant’s claim to be stayed on grounds of forum non conveniens on the basis that the French courts were “the most appropriate forum”. The High Court’s judgment sets out the approach that a court will take to questions of jurisdiction in the post-Brexit age. Sarah Prager acted for the Defendants.

Facts

On 28^th February 2018, the first Defendant negligently skied into the claimant whilst in France; the second Defendant was his insurer. This resulted in the Claimant suffering significant injuries. At the time of the accident, Regulation (EU) 1215/2012 (‘recast Brussels’) applied, permitting the Claimant to pursue her claim in any court permitted by the Regulation. The claimant issued her claim form on 14^th January 2021, however. This was after ‘Brexit Day’ (31^st December 2020), when relevant transitional arrangements such as the Regulation ceased to apply. Consequently, the Defendants applied to stay the claim on the basis that the French courts were the most appropriate forum. Liability had been admitted, the sole issue was quantum.

Legal Background

Master Dagnall drew on the jurisprudence to set out the following considerations:

• The Defendants had to satisfy the court that France was the ‘clearly’ more appropriate forum in order for the court to impose a stay.
• The court must consider factors including convenience and expense, the governing law and the residence of the parties.
• Even if France was the most appropriate forum, a stay may be refused after considering ‘other circumstances’, being factors relating to the achieving of the ‘ends of justice’. This includes asking (a) whether the Claimant will not obtain substantial justice in France, or (b) whether there is some legitimate personal or financial advantage of which justice requires that a claimant should not be deprived.

Judgment

‘The appropriate forum’

Master Dagnall held that the Defendants had not proven that France was ‘clearly’ the more appropriate forum for the following reasons:

• England was the actual location of the Defendants. It was where enforcement would take place without need for a Foreign Judgments (Reciprocal Enforcement) Act 1933 registration process, and the Defendants’ lawyers were English.
• The claim was a quantum case based on an algorithmic approach under French law. The only likely witness of fact was based an equivalent distance to London from the relevant French court in Albertville, and could give evidence in English.
• The medical and accountancy experts were in France and would need interpreters. However, the English courts were capable of resolving quantum in accordance with French law.

‘Achieving the ends of justice’

Alternatively, even if France were the more appropriate forum, Master Dagnall held the court would still refuse a stay for the following reasons:

• Enforcement would take place in London. Enforcing a French judgment would require a registration process involving cost, delay and potential opportunity for challenge.
• The Claimant had proceeded in accordance with English law at a time when forum non conveniens was irrelevant. She had carried out substantial work and incurred significant costs which would be wasted if a stay was to be granted. This substantial work, and the costs recovery rules in English, were a ‘legitimate personal and juridical advantage’ which favoured the claim being allowed to proceed in England.
• Other than more beneficial costs rules, there were nothing else in the interests of the Defendants as to why the Claimant should have to proceed in France.

Concluding Thoughts

There are two points which practitioners should draw from this case. First, a court will look at the precise location of the relevant foreign court when assessing the more appropriate forum. The relevant French court in Albertville was no more convenient for the Claimant than London. Second, the extent to which the Claimant’s ‘juridical advantages’ are ‘legitimate’ is wide.  Master Dagnall emphasised the fact that a substantial element of the Pre-Action Protocol had taken place and substantial costs had been incurred while the Judgments Regulations still applied in England. The mere fact that a party could have avoided the present circumstance by issuing before 31^st December 2020 was a factor of limited weight.

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.

PGI Group Limited v Magret Thomas & 30 Others [2022] 2 WLUK 360: Availability of alternative forums is not relevant to proportionality of costs

In dismissing an application for permission to appeal, the Court of Appeal clarified that, where the case could have been heard in another jurisdiction, the availability of another forum is irrelevant for determining what costs are proportionate for bringing the claim in this jurisdiction.

Background

The Respondents to the application for permission to appeal are the Claimants in the proceedings. They are 31 Malawian women who were employed by a Malawian company, Lujeri, to work in tea or nut plantations in Malawi. They allege that they were raped, sexually assaulted, harassed and discriminated against by male employees of Lujeri. The Applicant and the Defendant in the proceedings, is the parent company of Lujeri.

It was accepted that the claims were legitimately brought in the UK, and that the relevant law is Malawian.

Application for a Costs Capping Order

The Defendants applied for a CCO in respect of the Claimant’s future costs in the sum of £150,000, arriving at the figure with reference to what they said were the likely costs of pursuing the claim in Malawi.

Under CPR r.3.19(5), to obtain a CCO against the other party, an applicant must show:

1. It is in the interests of justice; and
2. That there is a substantial risk that, without the CCO, costs would be disproportionately incurred; and
3. The risk of disproportionately incurring costs cannot be adequately controlled by costs budgeting.

The judge dismissed the Defendant’s application. In doing so, he held:

• While the amount recoverable by each individual claimant may be modest by English standards, it was significant and potentially life changing to Malawian plantation workers.
• The claims were about much more than money: the claimants want to show that they were telling the truth; they want to restore their reputations; and they want to bring these and similar abuses to an end. Such aims should be considered in assessing proportionality, and cases where the costs significantly outweigh the damages awarded will not necessarily be disproportionate.
• If the CCO was granted, it would like force the claimants to discontinue proceedings, stifling the claim.

He concluded that none of the preconditions for a CCO had been made out. At a subsequent hearing, he instead fixed their budget at £848,140.

Application for permission to appeal

The Defendant’s proposed grounds of appeal all related to the proportionality:

Ground 1:         The judge applied the wrong proportionality test;

Ground 2:         The judge failed properly to take account of the costs already incurred in his analysis; and

Ground 3:         The judge was wrong to hold that the costs of prosecuting the claims in Malawi was irrelevant to proportionality.

Permission refused

The judge highlighted that proportionality in relation to costs features throughout the CPR, and considered the totality of those provisions as “the proportionality rules” (at [9]).

He further noted that:

• First instance judges have a wide ambit of discretion in relation to costs, and there was nothing in the proposed appeal that even arguably met the high threshold required for an appeal court to interfere (at [17]);
• The application for permission to appeal was bound to fail as it only addressed the judge’s findings on one of the three preconditions, and the application for a CCO had been rejected on all three (at [18];
• There was no discernible error in the way that the judge had applied proportionality (at [21]);
• The judge reached a conclusion that the vast majority of judges would have reached (at [22]); and
• The Defendant failed to demonstrate that it is arguable that there are exceptional circumstances which justify making a CCO for such a low amount (at [23]).

On Ground 1, the Court found that there was nothing to indicate that the judge had applied the wrong proportionality test. On Ground 2, he found that the criticism was unfounded, as the judge expressly noted the incurred costs in his judgment.

In relation to Ground 3, the Defendant’s position was that the availability of an alternative forum was relevant to the proportionality of costs. The judge roundly rejected it for a number of reasons:

• The fact that there was an alternative forum was not of any particular significance, and to introduce the issue under the guise of proportionality ran the risk that it became a forum non conveniens argument by the back door (at [44]).
• Any comparison between the jurisdictions was inapt, because the Claimants benefitted from QOCS in the UK (at [46]).
• The Claimants were entitled to bring proceedings in the UK, and to effectively penalise them through costs for doing so was wrong (at [47]).

Therefore, even outside the context of CCOs, any arguments that costs are disproportionate because the claim would have been less expensive in another forum are unlikely to have any weight.

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.

…And Finally…

It has been announced that the government intends to introduce a licensing regime for non-surgical cosmetic procedures such as Botox and fillers. The additional powers proposed by way of amendment to the Health and Care Bill currently passing through Parliament will be wielded by the Secretary of State for Health and Social Care, with details to be determined following a public consultation. Obviously the regime will not cover procedures carried out extra-jurisdictionally, with the consequence that we can expect to see further divergence between the standard and quality of work undertaken domestically and that provided internationally. The increase in cross-border cosmetic claims looks certain to continue, therefore, and practitioners should be alert to the jurisdictional considerations applicable in these particular cases, which make them easier to bring before the courts of England and Wales than most other cases. Carry On Doctor!