26
Jul
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: The Olympic Edition

Regular readers are aware that 1CL is a chambers of Winners; so what could be more appropriate than an Olympic Edition of the Weekly Roundup, to mark the sporting event that sees the team glued to the 1CL telly for a fortnight, unable to move from the chambers sofa for fear of missing the horse dancing? One or two of us have glanced away from the medal action for long enough to note the decision in the travel industry’s judicial review of the travel traffic light system and a brace of jurisdictional challenges, and we see with interest that the decision of the Supreme Court in X v Kuoni is due to be handed down next Friday, at which point it is to be devoutly hoped that Mrs X’s eleven year ordeal, much of it at the hands of courts low and high, will come to an end. We will of course keep our readers updated on the decision and any wider implications it may have; if, that is, we can tear ourselves away from the trampolining final, which we find strangely mesmerising.

Not Playing by the Rules: Failure to Make Full and Frank Disclosure in ex parte Applications

A recent decision by the Admiralty Judge, Andrew Baker J, illustrates the need for parties to make full and frank disclosure when making applications without notice to the other side.

The Claimant in Tither v B.A.I. S.A. [2021] 7 WLUK 302 claimed that on 16th March 2018 she had been assaulted whilst on a cross-Channel ferry operated by the French domiciled Defendant; liability for the assault was denied by the Defendant ferry operator. Her claim was governed by the Athens Convention, of course, and so limitation expired in March 2020. Her solicitors duly issued the claim on 14th February 2020, shortly before the expiry of the limitation period. On 8th April 2020 they sent a copy of the claim form to solicitors for the Defendant ‘for information only’, but it was not until June 2020 that they enquired whether they were nominated to accept service; they received no immediate reply.

On 3rd June 2020, some 3½ months after the claim form was issued, solicitors for the Claimant applied for an extension of time for service of the Particulars of Claim, but, perhaps oddly, not for service of the claim form. At that time no efforts had been made to serve proceedings. Nevertheless, an extension of time for service of the Particulars of Claim was granted to 14th December 2020.

Meanwhile, on 23rd July 2020 the Claimant’s solicitors made contact with the Foreign Process Section and with specialist agents enquiring as to how long it might take to serve proceedings. They were reassured by the agents that they would be able to effect service before the expiry of the lifetime of the claim form on 14th August 2020.

It turned out, however, that the agents had been too sanguine. On 4th August 2020 they contacted the Claimant’s solicitors informing them that all of the local Huissiers (court bailiffs, to you and me) were on holiday and that an out-of-area Huissier had indicated that he would charge some £2,000 to effect service, an offer the agents had rejected. It was, so the agents concluded, impossible to effect service before the expiry of the lifetime of the claim form.

The Claimant’s solicitors then acted promptly. That day they made an application for an extension of the lifetime of the claim form to 14th December 2020 (the same date by which the accompanying documents were to be served). They relied on the following admirably brief but alarmingly incomplete evidence:

‘There was a delay in obtaining relevant medical records and arranging a medical examination as a result of the covid-19 pandemic. This has now been obtained and disclosed to the Defendants. It had been hoped that service of the claim form on the Defendants would be possible before 14th August 2020.

Unfortunately, due to judicial vacations all the Huissiers contacted in the area in relation to service are on holiday and it is therefore unlikely that service will be possible before 14th August 2020.’

On 5th August 2020 Admiralty Registrar Davison duly made the order as requested. The proceedings were then served on the Defendant at its offices in France on 11th December 2020.

The Defendant applied for an order setting aside the extension of time granted on 5th August 2020, which would invalidate service and lead to the claim, by now time barred, being struck out. It prayed in aid the fact that the evidence on which the order was granted was misleading; the claim form could have been served in time, but the Claimant’s solicitors had chosen not to do so, and the fact that the limitation period under the Athens Convention had expired had not been drawn to the Registrar’s attention.

At first instance Registrar Davison dismissed the application on the grounds that:

  • the claim form had been sent to the Defendant’s solicitors on 8th April 2020, within its primary lifetime;
  • the medical report had been sent to the Defendant’s solicitors on 22nd July 2020, within the primary lifetime of the claim form;
  • although the Claimant’s solicitors only began to attempt service three weeks before the expiry of the lifetime of the claim form, this should have been enough time in normal circumstances;
  • the balance of hardship favoured the Claimant;
  • the Registrar himself was aware of the limitation period and its expiry, therefore any non-disclosure on the face on the application did not affect his consideration of whether to grant it.

The Defendant appealed on the grounds that the Registrar had not given sufficient weight to the fact that the Claimant’s solicitors had made no meaningful attempt to serve the claim form for 5½ months after it was issued, and had then (by their agents) refused an offer to effect service on economic grounds. Furthermore, the fact that the limitation period, which is a non-extendable one, had expired, had not been drawn to the attention of the Registrar and had not been given proper prominence in his consideration of the balance of hardship. Essentially, in serving the claim form when they did the Claimant’s solicitors had extended the non-extendable limitation period under the Convention by a period of some nine months, over a third of the allotted period.

Andrew Baker J allowed the appeal. In an at times excoriating judgment he found that the order extending time for service had been founded on ‘wholly inadequate’ and ‘seriously misleading’ evidence; and the assertion that the Defendant could not be served because the French court bailiffs were on holiday was at best a ‘half truth’. On the evidence available to him it would not have occurred to Registrar Davison, so the judge held, that an out-of-area Huissier could have served proceedings within time had he been so instructed.

Whilst disavowing any intention of making new law, the Admiralty Judge distilled the following principles from the existing authorities:

  • there are no preconditions to the exercise of judicial discretion under CPR7.6(2), although the rule has to be exercised in accordance with the overriding objective;
  • however, it is necessary to evaluate the reason (if there is one) why an extension is required, because dealing with cases justly includes not allowing procedural deadlines to be missed for no good reason;
  • the weaker the reason, the less just it would be to extend time;
  • the time limit for service is regarded as generous, particularly where, as here, the time allowed is six months by reason of the fact that the proceedings are to be served outside the jurisdiction;
  • the fact that the claim has become time-barred between the issue of the claim form and the application for an extension is an important factor. It would generally be unjust to extend time where doing so would deprive the defendant of an accrued limitation defence without powerfully good reasons as to why the claim form could not be served in time.

It was relevant in this case that the limitation period under the Athens Convention is non-extendable save in the most particular of circumstances; it might be inferred from this that applications to extend time for service of proceedings in claims to which the Convention applies will need to be supported by a particularly good reason why service cannot be effected within the lifetime of the claim form. Here the fact that the claim form could have been served, albeit at additional cost, combined with the Claimant’s solicitors’ ‘lack of prudence’ in ‘waiting until the last minute’ to begin considering service ought to have been fatal to the application.

Comment

The advent of Exit Day brought with it a flurry of claims. Although it was not one of the claims issued in order to take advantage of the dying days of Regulation (EU) No.1215/2012 (‘recast Brussels’), Tither will still be of interest to practitioners dealing with these claims. Many have still not been served as a result of the sheer number of claims issued in November and December last year, the backlog at the FPS and (in some cases) lack of judicial cooperation on the part of some foreign courts. Those acting for Claimants will by now have made applications for extensions of time for service; those acting for foreign Defendants will be keen to scrutinise such applications when proceedings are finally served. It is suggested that, as with the loss of the limitation period under the Athens Convention, the jurisdictional provisions under recast Brussels will hang heavy in the balance of fairness between a late-serving Claimant and a Defendant who might have a legitimate expectation that it would have been served with all Odenbreit claims by 31st June 2021. And woe betide any representative of a Claimant who did not make full and frank disclosure of this alteration in the jurisdictional landscape when making an ex parte application for an extension of time for service. Nobody wants to end up being written about in the prestigious 1CL Weekly Round-Up in the terms set out above – and there’s also the small matter of the Claimant losing his or her claim entirely as a result.

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 has recently been invited to join the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists and the Admiralty Court Users’ Committee.

Challenging Jurisdiction not a Team Sport: Abu Dhabi Commercial Bank PJSC v Shetty [2021] 7 WLUK 313

Another cautionary tale about challenging the jurisdiction of the courts of England and Wales. The Claimant bank brought claims against six Defendants alleging fraud causing significant financial loss. The Fifth Defendant filed and served an Acknowledgement of Service indicating that he did not challenge English jurisdiction; the other Defendants, however, entered Acknowledgements of Service indicating an intention to challenge the court’s jurisdiction. On discovering this, the Fifth Defendant indicated that he did wish to challenge jurisdiction after all, and applied for permission to withdraw his Acknowledgment of Service under CPR PD10 para.5.4.

The Fifth Defendant maintained that on case management grounds it would be better if there was a level playing field so that he was able to challenge jurisdiction together with the other Defendants. He also referred to criminal proceedings in the UAE and a risk of inconsistent findings of fact. The Claimant, however, argued that in the circumstances the Fifth Defendant had waived his right to challenge the jurisdiction of the court, and that a change of mind was not a sufficient reason to allow the withdrawal of an Acknowledgment of Service.

The court accepted that it had a discretion to permit withdrawal of an Acknowledgment of Service, but that discretion had to be exercised in accordance with established principles which permitted withdrawal in cases of mistake or lack of authority (cf in this respect the leading case of Somportex v Philadelphia Chewing Gum Corp [1968] 3 All E.R. 26). The decision to file an Acknowledgment of Service and challenge jurisdiction was not a decision which defendants took jointly. It was a decision which each defendant exercised for himself. The Fifth Defendant had taken that decision, and later simply had a change of heart. Even if it could be said that it might be sensible on case management grounds if all the defendants were challenging the jurisdiction, it was not appropriate to decide the issue on case management grounds. Following Somportex, a change of heart was not a good reason for permitting the withdrawal of an Acknowledgment of Service. The Fifth Defendant was therefore fixed with his original submission to the jurisdiction.

This decision of Sir Nigel Teare in the Commercial Court underlines the importance of giving due consideration to the completion of the Acknowledgment of Service. Oftentimes, where information enabling a Defendant to challenge jurisdiction only comes to light after the completion of the Acknowledgement of Service, a court will be prepared to allow a late challenge; but in the absence of some good reason for a ‘change of heart’, a Defendant will be held to its election in the Acknowledgement. It is certainly not a good reason that all the other Defendants are challenging jurisdiction, so it may be prudent to liaise with the other parties, or if they are uncooperative, to leave filing the Acknowledgement to the last minute, so as to gauge the collective appetite for mounting a jurisdictional challenge.

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 has recently been invited to join the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists and the Admiralty Court Users’ Committee.

Travel Industry DNF: JR not a Runner

A judicial review brought by travel industry leaders (Manchester Airports Group with Ryanair, BA parent IAG, Virgin Atlantic, TUI UK and EasyJet as Interested Parties) to challenge the decision behind amendments to the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 (“the International Travel Regulations”) has failed. The amendments were made by the Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (No. 2) Regulations 2021 (“the Amendment Regulations”). They had the effect of moving Portugal from the green to the amber list, and Afghanistan, Bahrain, Costa Rica, Egypt, Sri Lanka, Sudan and Trinidad and Tobago to the red list. The Claimant argued that the decision was taken without proper reasons being given and without proper notice of the criteria applied when deciding that countries should move from one list to another.

At a rolled up hearing the Claimant was given permission to apply for judicial review on four grounds, only the first of which was successful.

Ground 1

The first ground was that regulation 24, which provides “The Secretary of State must review the need for the requirements imposed by these Regulations by 14 June 2021 and at least once every 28 days thereafter”, encompasses reconsideration of whether countries should stay where they are on the traffic light lists or move from one list to another. The court accepted that submission. However, when exercising the regulation 24 review power to date, the Secretary of State had in fact reviewed the contents of the green, amber and red lists and accordingly carried out the review in a lawful manner.

Ground 2

The rest of the Claimant’s grounds were directed at an alleged failure to comply with a legal obligation to publish reasons for the decision, along with the criteria that were applied, and the data relied on, when taking the decision.

Ground 2 rested on an alleged general common law obligation to give reasons for administrative decisions, unless there is a proper justification for not doing so. The court held that the target of the Claimant’s challenge was not an administrative decision, but the Amendment Regulations. Neither the International Travel Regulations, nor the Public Health (Control of Disease) Act 1984 pursuant to which they were made, contained any express statutory obligation to give reasons for amending regulations. It is well established that where secondary legislation is challenged on grounds of alleged procedural error not arising from any procedure prescribed in the enabling power in primary legislation, the common law will not ordinarily intervene.

Even if wrong about that, the court concluded that what the Secretary of State said when making his announcement on 3 June 2021 was sufficient to discharge any obligation to give reasons that could arise at common law.

Further, the Claimant’s contention that reasons should be given as to why countries remained on the amber list and had not been moved to the green list would impose unrealistic burdens on the Secretary of State. The default position is that all countries are on the amber list unless there is specific evidence to satisfy the Secretary of State that circumstances in a particular country present only a low risk to public health in the United Kingdom. It would be unreasonable to require the Secretary of State to give the reasons not only for any changes, but also for decisions that a particular country should stay in its place in the traffic light lists, at each 28 day review required by regulation 24.

Ground 3

The Claimant’s third ground was that the Secretary of State is required by reason of a legitimate expectation to publish all information relating to decisions contained in the Amendment Regulations, and all information explaining why countries on the amber list did not move from that list. The legitimate expectation was said to arise from an answer given by the Secretary of State to a question during a Downing Street press conference on 7 May 2010. This was the press conference at which the traffic light system was announced. The Secretary of State was asked:

Is it realistic to think that this year we will see the return of mass travel to Spain, to France and other really popular destinations as opposed to this tiny list of many islands?

The Claimant relied upon his reply that:

This year it’s about not just about the prevalence of cases; it’s about the variants of concern; it’s about the ability of the country to test the quality of their data; how good their genome sequencing is and I think reassuringly, Paul, all of that is going to be published this year, both the methodology and the data, so people can see themselves why the particular countries and territories that are being included at the moment are in there and I think that will be helpful for everyone.

It was common ground that in a claim based on legitimate expectation, a claimant must identify a relevant representation that is clear, unambiguous, and devoid of any relevant qualification. Further, the circumstances in which the representation was made and the subject matter and nature of the representation itself must be such that it is reasonable for the representation to be relied on as giving rise to a legal obligation.

The court did not consider that the Claimant had established that a representation was made which was capable of founding a claim to a legitimate expectation. The reference to people seeing how and why particular countries and territories are included was a reference to countries which would be on the green list. There was no promise to provide, for example, information on why countries on the amber list remained on that list.

Further, the court considered that particular circumstances will be required before “off-the-cuff comments” (distinguished from the prepared remarks), might be held to give rise to legitimate expectations enforceable at law. Rejecting the Claimant’s submission that press conferences have been the Government’s preferred means of communicating with the public during the pandemic and that therefore anything said at them should be capable at least in principle of giving rise to a legal obligation, the court did not consider that there was anything exceptional about the answers given at this press conference, or the circumstances in which they were given.

Finally, the court considered that statements on matters of general policy affecting the public at large will often not be matters capable of being enforced as a legal obligation through the mechanism of legitimate expectation.

Ground 4

The Claimant’s final ground was that the decisions contained in the Amendment Regulations are a control of use, which interferes with property within the protection provided by article 1 of Protocol 1. In the absence of published criteria by which decisions were made as to whether countries move from or stay on a particular traffic light list, that control of use was said not be “provided for by law” in the sense required by article 1 of Protocol 1.

The court accepted for the sake of argument that variations made by the Amendment Regulations amounted to a form of control of use. However, the fourth ground failed for a number of reasons. In particular, the Claimant had failed to provide evidence that the measures put in place by the Amendment Regulations had affected property. It is well established that article 1 of Protocol 1 does not extend to protect “rights” to the prospect of income in the future. Further, it was noted that the European Court of Human Rights has always applied the “provided by/in accordance with the law” requirement purposively and pragmatically. The court considered that in the circumstances of the pandemic, the precautionary approach applied to determine the contents of the amber list – i.e., to apply amber list requirements to all countries save where there was positive evidence either that no such requirement was necessary or that stricter red list provision was required – was (and remains) appropriate.

Conclusion

The result, while perhaps not surprising, will be another disappointment to an industry hoping for recovery this summer. Further, it reinforces that the courts are likely to be unwilling to interfere in Government decision making in the context of the pandemic “and the shifting threat it presents to public health in the United Kingdom”, except in the clearest of cases.

About the Author

Ella Davis was called to the Bar in 2013. She undertakes work in the cross border field on behalf of both Claimants and Defendants. She has particular expertise in claims involving allegations of fundamental dishonesty and has a good deal of experience in conducting trials around the issues which arise from such allegations.


…And Finally…

1CL’s Sarah Prager has been co-opted to the Admiralty Court Users’ Committee as a representative of the personal injury Bar. Sarah, who is joined by 3 Hare Court’s Asela Wijeyaratne and Linda Nelson of 9 Gough Chambers, will be liaising with the Users’ Committee and PIBA on behalf of personal injury practitioners issuing proceedings out of the Admiralty Court. She is, as ever, receptive to any concerns, gripes or comments readers may have in relation to the workings of the Court; and indeed any other courts (she’s an Olympic standard provider of tea and sympathy, as regular readers will be aware).

Written by or involving: Sarah Prager, Ella Davis

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