15
Feb
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Positions of Power Edition

This week brought another interesting development in gastric illness claims; an inventive attempt to fix a single joint expert with the Defendant’s costs of successfully defending a claim was resoundingly rejected, leaving tour operators facing the tricky decision of whether to continue to defend this type of claim, even in the face of the effects of qualified one way costs shifting. And speaking of costs, the group data protection action against British Airways, Weaver & others v British Airways [2021] 2 WLUK 104, was budgeted this week. The parties agreed to an extension of the time period for entry on the group register to 3rd April 2021; when we bear in mind that about 22,230 claimants have already signed up to the litigation, and it is anticipated that a further 20,000 will sign up before the cut-off point, the scale of the thing becomes apparent. Saini J was asked to approve a £1million advertising budget to enable the claimants’ solicitors to publicise the group action, but declined to do so as a matter of principle; the costs claimed, which related to such publicity as television advertising, went far beyond anything needed to publicise the GLO, and were to be seen, instead, as part of the claimants’ solicitors’ costs associated with generating business. We at 1CL have slight Costs Budget Envy; if only all our costs budgets could afford to drop a million pounds here, a million pounds there, CCMCs would be a lot more fun.

 

The Position of the Expert Witness: the (usual but not inevitable) duty to warn the expert in advance of trial

In Walker v TUI UK Limited [2021] 1 WLUK 398 a single joint expert gastroenterologist had attended trial, been cross examined by the defendant, and was criticised by the judge for not dealing with the claimants’ medical records. The judge rejected the claimants’ witness evidence and the claims were dismissed. The defendant tour operator then applied to join the expert as a defendant to proceedings for a costs order pursuant to CPR 46.2.

The test to join an expert for costs purposes

In her judgment District Judge Obodai examined the test for joinder under CPR 46.2. She concluded that the threshold test was that set out in Phillips v Symes [2004] EWHC 2330 (Ch) in which Peter Smith J held that a high level of proof would be needed to establish gross dereliction of duty or recklessness: “Experts can sometimes breach their duties to the court and can also be criticised by the court, but if every time either occurred, the test was ‘no more than outside the ordinary run of cases’ then that has the potential to lead to satellite litigation and perhaps a plethora of applications for joinder for s51 costs. That cannot be right or what was intended by the use of the word ‘exceptional’”.

Considering whether the evidence submitted in support of the defendant’s application met that high test the judge noted that the present claims had failed primarily because she had not accepted the evidence of the claimants as to how they had fallen ill whilst on holiday. The judge did “not see it as the role of the expert to interrogate a claimant at length”. The fact that the claimants’ evidence had been rejected could not be laid at the door of the expert.

The duty to warn the expert of what is coming

Further to this primary point of causation, the judge noted the guidance from Dyson LJ in Popek v NatWest Bank Plc [2002] CPLR 370 that “It is obviously sensible that if a single joint expert is (unusually) to be subject to cross-examination, then he or she should know in advance what topics are to be covered, and where fresh material is to be adduced for his or her consideration, and this should be done in advance of the hearing”.

The judge reviewed the correspondence between the gastroenterologist and the defendant and concluded that the expert had “most likely assumed that he was simply attending the trial to assist the court by clarifying matters in his single joint expert’s report rather than to be extensively cross-examined on it.” Whilst the authorities are clear that giving a warning is not an absolute requirement, on the facts of the present case (particularly as he was a single joint expert) the judge found that the expert should have been warned.

Wasted costs orders distinguished

The judge also distinguished the court’s wasted costs jurisdiction on the basis that “an expert is […] in a very different position to a legal advisor […] legal advisors advance the case on behalf of a client and have the ability to take tactical decisions in furtherance of their objective”. As experts are not in that position “the threshold [for joinder] must be higher than that for a wasted costs order”

Analysis

The judgment is a reminder that as tempting as it is to blame experts, the primary weaknesses in holiday sickness claims usually lie with lay witness evidence. Even where this is not the case, the courts will be wary of satellite litigation. It will only be in cases of a flagrant reckless disregard of CPR 35 duties to the court that an expert will be held liable for costs. Where a party thinks that it has such a case, it will usually be advisable to warn the expert expressly in question of its plans to cross examine on this point.

About the Author

Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.

 

Powering Through the Mountain: update on service of pre-Brexit claims

A couple of weeks ago we delivered the (dare we say, critically acclaimed) 1 Chancery Lane webinar on cross-border litigation after the end of the Brexit transition period. During the webinar there was a lively discussion on the various vagaries of service in and out of the jurisdiction and exactly when permission of the court might be required. In particular, there were questions about the one-off regime covering claims which were instituted before 31st December but not yet served on the defendant. Since that date, the Commentary in the White Book has been updated, and has given at least a partial answer.

We discussed the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019 during the webinar, but the Government, in their wisdom, have also slipped in under the radar a set of bonus ‘amendment to the amendment’ regulations – the Civil, Criminal and Family Justice (Amendment) (EU Exit) Regulations 2020. These 2020 regulations add in a new paragraph ‘(3A)’ to Regulation 18 of the 2019 Regulations – which we discussed briefly as it has various saving provisions for serving on an EU/EEA lawyer. The new paragraph (3A) reads:

Where a claim to which rule 6.33(2) applies is issued before IP completion day but the claim form has not been served by IP completion day, rules 6.33 and 6.35 apply on and after IP completion day in relation to service of the claim form and to the period for responding to the claim form as if the changes made by these Regulations had not been made.

What does that tell us? Well, the old 6.33(2) (which still awaits its updates on justice.gov.uk) says permission of the court is not required for cases caught by the Judgments Regulation – i.e. Brussels recast. So the new regulation 18(3A) means that permission of the court will not be required for service of the claim form out of the jurisdiction where a Brussels claim form were issued before the end of transition but not yet served.

Of course, this is not a complete answer to the problem, because it says nothing about 6.33(1) – Lugano – and it unhelpfully uses the language of issuing, rather than instituting, which as discussed in the webinar may have a slightly different meaning in this particular context – the latter referring to when papers were lodged with the court and not necessarily when the court got round to formally kicking-off the proceedings.

It may therefore be that the safety net catch-all of 6.33(3) will still be important. This provision sets out that permission is not required where the court has ‘power’ (i.e. jurisdiction) to determine the claim and so could well bite for the Lugano cases and for those few where the papers arrived on time but there was a delay in issue, which will fall within the winding down of the Brussels regime, and therefore the court will continue to the have power to determine under the long tail of the Withdrawal Agreement.

About the Author

Tom Yarrow was called in 2018. Before joining chambers Tom was a civil servant working in various government departments, including as a policy advisor on the UK-EU Withdrawal Agreement at the Department for Exiting the European Union. During pupillage he worked with the Government Legal Department, practising in public law in the fields of public international law, justice and security, human rights and immigration. He has regularly appeared in judicial review proceedings for the Secretary of State for the Home Department, and as a member of the Attorney General’s ‘junior junior’ scheme, he is able to take instructions directly from government clients. He now practises in all of chambers’ practice areas and is an enthusiastic and valued member of the travel team.

 

Abusing its Position of Power? Booking.com and unilateral alteration to contractual terms

Attentive readers will recall that in Wikingerhof GmbH & Co. KG v Booking.com BV, Case C-59/19 the Court of Justice of the European Union considered the relationship between Booking.com and its hoteliers. Briefly, the German hotelier had entered into a contract with Booking.com, a Dutch company, on the latter’s standard terms and conditions. These were subsequently altered on a number of occasions. The hotelier contended that it had no choice but to accept these unilateral variations, due to the booking platform’s dominant position in the marketplace for intermediary services and accommodation reservation portals, even though, it alleged, the variations were unfair and in breach of competition law.

The hotelier eventually became so fed up with Booking.com’s variations that it brought proceedings in its home court, the Regional Court of Kiel, in Germany, seeking an injunction to prevent the platform from:

(i) affixing to the price specified by Wikingerhof, without the latter’s consent, the indication ‘preferential price’ or ‘discounted price’ on the accommodation reservation platform;

(ii) withholding the contact information provided by its contracting partners on that platform; and

(iii) making the placement of its hotel in search requests dependent on the granting of commission in excess of 15%.

The CJEU concluded that, subject to verification by the referring court, the action brought by the hotelier, in so far as it was based on the legal obligation to refrain from any abuse of a dominant position, was a matter relating to tort, delict or quasi-delict within the meaning of Article 7(2) of recast Brussels; an exclusive jurisdiction clause contained in the contract, and on which Booking.com relied, was of no application (and even had it been, it had not been validly concluded within the provisions of recast Brussels).

This week the UK Bed & Breakfast Association has complained to the Competition and Markets Authority alleging unfair business practices and anti-competitive behaviour on the part of the online platform. It appears that Booking.com have not been deterred by hoteliers’ complaints regarding unilateral alteration to the terms on which accommodation owners trade via the platform, and have simplified its policies on payment of deposits and on cancellation fees, reducing the number of options from 600 to 70. The Association points out that the reduction in options will have a knock on effect on businesses’ ability to manage risk and cashflow. Booking.com say that the changes will benefit consumers, who will have a less bewildering array of different terms and conditions to consider when using the platform.

The Association has previously described the relationship between the major online travel agents and the accommodation providers who use their platforms as ‘verging on the abusive’, and Booking.com’s stance that providers who don’t accept their unilateral contractual variations are free not to use the platform does seem an over simplification of the position; their dominance of the marketplace is such that providers are left with little choice but to sign up to whatever variations in contractual terms are imposed on them.

It remains to be seen what the CMA makes of it all, but in the opinion of the author if the CJEU is asked to determine the imbalance of power between the behemoth online platforms and their providers, the former have reason to be concerned; by analogy, the recent decision in Ryanair v DelayFix, Case C-519/19 suggests that they will consider the issue with more sympathy for the providers than for the platforms.

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. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury.

 

…And Finally…

We at 1CL have seen a lot of cosmetic surgery in our time. Professionally, you understand, not personally (although did you really believe we look this great naturally?). But even we were surprised to read of a 34 year old American waitress who’s midway through a course of procedures designed to make her look like a vampire. She says that when she first approached her dentist asking for enhanced canines he “admitted he’d never done anything like this before, but I was just so happy he would give it a go”. Whilst admiring his Can Do attitude, we suspect we would not have been reassured by his inexperience. Nevertheless, he sensibly advised in favour of starting small and operating what his patient describes as a ‘trial and error approach’ thereafter. Coincidentally we at 1CL were considering this week the case of a patient who travelled abroad for dental surgery and whose treating dentist was only too pleased to apply veneers to almost all of her teeth on the same occasion, resulting in irreversible pulpitis to a number of them. As with all of these cross border clinical negligence claims, the case raises interesting and potentially difficult issues of jurisdiction, applicable law, local clinical standards, and evidence and procedure; issues dealt with by Andrew Spencer and Dominique Smith in their excellent webinar on the topic, available to view here:

 

Written by or involving: Sarah Prager, Conor Kennedy, Thomas Yarrow

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