24
Jan
22
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Meatloaf Edition

It was a sad week this week for the team; not only did we learn of Meatloaf’s death, which left us reeling, but of the Court of Appeal’s heartless approach to the human rights of insurers. We’ve been following the progress of the insurer in Aviva Insurance Limited v Secretary of State for Work and Pensions [2021] 1 WLUK 101, in which it was argued that requiring employers’ liability insurers to repay, under the Social Security (Recovery of Benefits) Act 1997, certain social security benefits irrespective of any contributory negligence by the person with an injury or disease, or of the insured’s partial responsibility, was incompatible with the insurers’ rights under Article 1 of Protocol 1 of the European Convention on Human Rights. Alas! The Court of Appeal did not agree. Dingemans LJ commented:

“…It is accurate to state that insurers will, in certain cases, pay the whole of the CRU certificate when their insured was responsible only for some of the wrongful exposure, see for example the position in Carder v University of Exeter where the former employer was responsible only for 2.3 per cent of the claimant’s total exposure. However this is against a background where the tortfeasor is responsible in law, at least in part, for the accident, injury or disease which has led to the payment of the state benefits…”

A case of Read Em and Weep for insurers?

 

Objects in the Rearview Mirror May Appear Closer than they Really are: Amending Claim Forms after the Expiry of the Limitation Period

In the recent decision in Cameron Taylor Consulting Ltd v BDW Trading Ltd [2022] EWCA Civ 31, the Court of Appeal provided guidance on the correct approach to an application by a claimant to amend their claim form following the possible expiry of a limitation period.

The facts

The claim was brought by BDW Trading Ltd, part of the Barrett Group, against a number of engineering firms, in relation to a structural problem discovered in a residential tower block in Croydon. The problem had been discovered in 2019 and as a result, BDW began investigating earlier developments with which the defendants had been involved.

On 9th April 2020 BDW served a re-amended claim form on the defendants, having added further claims and a further defendant to the original claim form. The defendants applied to disallow the amendments and re-amendments on various bases, including under CPR Part 17.4 on the grounds that the proposed new claims were statute barred. The limitation period in question was that under section 14B of the Limitation Act 1980 – which provides a longstop period of 15 years for a claim in negligence other than one involving personal injuries.

The decision

Whilst the limitation period in question (section 14B) is rarely encountered by travel lawyers, Coulson LJ, giving the decision of the Court, provided a general review of the law where a claimant seeks to amend their claim form following the possible expiry of a limitation period. At paragraphs 34-35, the Court held as follows:

  1. Although it was not referred to by the judge, the starting point in considering the interplay between limitation arguments and amendments is Welsh Development Agency v Redpath Dorman Long Limited[1994] 1 WLR 1409, where the Court of Appeal upheld the earlier decision of the official referee refusing the proposed amendments concerned with negligent mis-statements. In an important passage, Glidewell LJ said at 1425G-H:

“We now wish to make it clear that, though the test applied in Leicester Wholesale Fruit Market Ltd. v. Grundy [1988] 1 W.L.R. 107 was the correct test in the circumstances of that case, in which section 35(1) gave the plaintiff no advantage, it was unnecessary for the decision in that case to disagree with what Purchas L.J. said in Grimsby Cold Stores Ltd. v. Jenkins & Potter (1985) 1 Const.L.J. 362, 370. Our view is that Judge Hicks was correct in concluding that where section 35(1) does, or may well, give the plaintiff an advantage a different test, namely that enunciated by Purchas L.J. in the Grimsby Cold Stores case, should be applied. In such a case, leave to amend by adding a new claim should not be given unless the plaintiff can show that the defendant does not have a reasonably arguable case on limitation which will be prejudiced by the new claim, or can bring himself within R.S.C. Ord. 20, r. 5. We should add that the court in Holland v. Yates Building Co. Ltd., The Times, 5 December 1989, also relied on the judgment of Glidewell L.J. in the Leicester Wholesale Fruit Market case as being of general application and not limited to its own particular facts.”

  1. WDAwas decided under RSC Order 20 rule 5. But there was no substantive difference between the old rule and the CPR. As Jackson LJ pointed out in Chandra v Brooke North (A Firm) and Anr [2013] EWCA Civ 1559, the guidance in WDA is still directly applicable to the CPR. As he explained:

“66. If a claimant seeks to raise a new claim by amendment and the defendant objects that it is barred by limitation, the court must decide how to proceed. There are two options. First the court could deal with the matter as a conventional amendment application. Alternatively, the court could direct that the question of limitation be determined as a preliminary issue.

67. If, as is usually the case, the court adopts the first option, it will not descend into factual issues which are seriously in dispute. The court will limit itself to considering whether the defendant has a “reasonably arguable case on limitation”: see WDAat 1425 H. If so, the court will refuse the claimant’s application. If not, the court will have a discretion to allow the amendment if it sees fit in all the circumstances.

68. If the court refuses permission to amend, the claimant’s remedy will be to issue separate proceedings in respect of the new claim. The defendant can plead its limitation defence. The limitation issue will then be determined at trial and the defendant will not be prejudiced by the operation of relation back under section 35 (1) of the 1980 Act.

69. This leads on to a separate and important point. If a claimant applies for permission to amend and the amendment arguably adds a new claim which is statute barred, then the claimant should take steps to protect itself. The obvious step is to issue separate proceedings in respect of the new claim. This will have the advantage of stopping the limitation clock on the date of the new claim form. If permission to amend is granted, then the second action can be allowed to lapse. If permission to amend is refused, the claimant can pursue his new claim in the second action. The two actions will probably be consolidated and the question of limitation can be determined at trial.”

Comment

In summary then, where there is a dispute as to whether or not a new claim sought to be raised by amendment is statute-barred, the claimant must prove (i) that the defendant’s limitation defence is not reasonably arguable or (ii) that, in any case, the amendment falls within the provisions of rr.17.4, i.e. is one which:

  1. Raises a new claim arising out of the same facts, or substantially the same facts as an existing claim;
  2. Corrects the name of a party; or
  3. Alters the capacity in which a party is joined.

An important practice point is that a ‘new claim’ under s.35(3) of the 1980 Act is not made until the statement of case is actually amended, which, by definition, will be the date on which permission to amend is given; not the date on which the application is issued or listed. So where a claimant is intending to amend to add a new claim, and limitation is approaching, unless the new claim clearly falls within one of the three exceptions above, the claimant will be well-advised to issue fresh proceedings in respect of that new claim, rather than risk it becoming statute-barred before the application to amend is determined.

About the Author

Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.

 

All Revved Up with No Place to Go: the Curious Case of the Crystal Symphony

Spare a thought for the 300 passengers and 400 crew aboard the Crystal Symphony, which should, as we speak, be safely docked in Miami, but which is, instead, in Bimini, in the Bahamas. The owner of the vessel, Genting Hong Kong, owes over US$1.2 million in unpaid fuel bills, and the South Florida District Court has issued an arrest warrant for the vessel, rendering it liable to impoundment if it enters any port in the US. As a result, the Captain was told to divert the cruise liner and disembark passengers a two hour ferry trip from Fort Lauderdale.

This has all come about because whilst at the start of their 14 day cruise Genting appeared to be solvent, halfway through the second week of it, the company announced that it would be suspending its operations and filed for insolvency. With the vessel anticipated to dock in Miami on Saturday in order to disembark passengers at the end of their cruise, on Friday Judge Darrin Gayles granted the arrest warrant.

The incident highlights once again the plight of passengers left stranded by cruise liner insolvency; but, more acutely, the very real issues for crew, who, as well as not being paid, will now face a difficult and expensive repatriation process. Whilst passengers booking package holidays are protected against insolvency and must be provided with assistance whilst abroad pursuant to Regulation 18 of the Package Travel and Linked Travel Arrangements Regulations 2018, those passengers who have purchased cruises and flights separately may find themselves in difficulties dealing with the logistics of their return. Quite what support the crew is likely to be afforded remains to be seen, but if the experience of liner crew during the Covid-19 pandemic is anything to go by, it will be slight indeed, if not non-existent.

Given the catastrophic effect of the pandemic on some cruise operators, it may be that this distinction will prove, in the coming months, to be indefensible.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she was a member of the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists, and is a member of the Admiralty Court Users’ Committee. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.

 

…And Finally…

The 1CL webinar programme for 2022 has now begun; and what better way to spend an hour from 12pm on Thursday 27th than participating in a discussion with Sarah Prager and Andrew Spencer about the developments in the travel law world last year, together with a bit of crystal ball gazing for the coming twelve months? As always, predictions are guaranteed 100% accurate, with your money back in the unlikely event that anything unexpected happens. Sign up here for a Piece of the Action.

Written by or involving: Sarah Prager, Tom Collins

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