The Weekly Roundup: the Procedural Edition

Articles | Mon 8th Feb, 2021

It never rains but it pours. No sooner had we got straight in our minds the slew of Brexit regulations enacted last year than a bunch of amendments to the Civil Procedure Rules landed on our desks. Happily they don’t come into force until 6^th April, so there’s plenty of time to prepare; this week’s Roundup features two of the most important changes, as well as a thought-provoking discussion of the dangers of ‘greenwashing’. We’ve also been keeping our eye on the Court of Appeal, which has just granted the Defendant in Griffiths v TUI [2019] 9 WLUK 576 permission to renew its appeal, with potentially far-reaching consequences for the treatment of expert reports not only in gastric claims, but in all claims involving expert evidence. And then, at the end of the week, Master Davison took the unusual step in Jamieson v Wurttemburgische Versicherung AG & Anor [2021] EWHC 178 (QB) of making a reference under Article 29(2) of Regulation (EU) No. 1215/2012 (recast Brussels) to a foreign court seeking confirmation of when that court was seised for the purposes of the Regulation. Rest assured, we’ll keep our readers updated on all the news as it breaks.

Interest on Part 36 Offers

With effect from 6^th April 2021, a provision specifically clarifying the position of interest in any Part 36 offer will be added to CPR 36.5. The rule, which mostly concerns the formal requirements of an offer, will now read as follows with emphasis added to the new CPR 36.5(5):

(1) A Part 36 offer must—

(a) be in writing;

(b) make clear that it is made pursuant to Part 36;

(c) specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with rule 36.13 or 36.20 if the offer is accepted;

(d) state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and

(e) state whether it takes into account any counterclaim.

(Rule 36.7 makes provision for when a Part 36 offer is made.)

(2) Paragraph (1)(c) does not apply if the offer is made less than 21 days before the start of a trial.

(3) In appropriate cases, a Part 36 offer must contain such further information as is required by rule 36.18 (personal injury claims for future pecuniary loss), rule 36.19 (offer to settle a claim for provisional damages), and rule 36.22 (deduction of benefits).

(4) A Part 36 offer which offers to pay or offers to accept a sum of money will be treated as inclusive of all interest until—

(a) the date on which the period specified under rule 36.5(1)(c) expires; or

(b) if rule 36.5(2) applies, a date 21 days after the date the offer was made.

(5) A Part 36 offer to accept a sum of money may make provision for accrual of interest on such sum after the date specified in paragraph (4). If such an offer does not make any such provision, it shall be treated as inclusive of all interest up to the date of acceptance if it is later accepted.

What’s the Difference?

Under the old rules, a Part 36 Offer was deemed automatically to be inclusive of all interest until the last date for acceptance of the offer. It made no specific provision for interest accruing after that date; and the clear implication was that no such interest could be included while benefiting from the Part 36 cost provisions. The new provisions specifically allow for this possibility; and impose no restrictions as to the terms on which such interest may be offered. The only restraint is that the interest clause must be expressly stated and cannot be implied in the offer.

It is hard to imagine that there will be many situations where this sort of interest will make much of a difference- a round sum offer will normally be more attractive- but it does create some opportunities for situational but potentially interesting uses:

1. Traditionally, it has been good practice to set a tight window for acceptance (generally a minimum of 21 days) as this maximises the possibility of the costs penalties applying if it is not accepted in time. An alternative for a claimant is now to keep the offer open but to impose severe interest penalties for the late acceptance. This may be attractive where a claimant lacks confidence in the claim but believes that the defendant will eventually pay them off to be rid of the claim rather than risk trial.
2. An offer anticipates monthly instalment payments over a year rather than a lump sum. A claimant could offer to accept such instalments, but on condition of payment of substantial interest. If that were rejected by the Defendant, but the Defendant was then ordered to pay a larger sum forthwith at trial, the costs penalties would apply.

What’s Still the Same?

Everything else. The offer must still be in writing and indicate specifically that it is made pursuant to Part 36 (there is no good reason not to use N242A). It must normally specify a period for acceptance which must normally not be less than 21 days. There remain very significant cost consequences for failing to beat a Part 36 Offer, which should be taken advantage of in full.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus.

Drafting Witness Statements

In the latest update to the CPR, the new Practice Direction (PD) 57AC contains significant changes affecting the preparation of trial witness statements in the Business and Property Courts from 6^th April 2021.

The update is a helpful reminder of what witness statements should contain (and be limited to), being:

1. factual witness evidence on disputed issues that stand to be resolved at the trial; and
2. only the evidence in chief the witness could and would be allowed to give at trial if the witness statement were not being taken as their evidence in chief.

All witness statements in the Business and Property Courts signed after that date will need to comply with the new PD. The most significant requirements are outlined below:

Certificates of Compliance

The PD introduces new requirements, designed to focus the minds of parties and their representatives when producing trial witness statements. Trial witness statements will need to be endorsed by certificates of compliance in the form set out in the PD which are signed by the witness and legal representative.

In addition to the statement of truth, the witness statement must include the following wording:

“I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.

I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case.

This witness statement sets out only my personal knowledge and recollection, in my own words.

On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when.

I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge.”

The statement must also be endorsed with a certificate of compliance signed by the legal representative which reads:

“I hereby certify that:

1. I am the relevant legal representative within the meaning of Practice Direction 57AC.
2. I am satisfied that the purpose and proper content of trial witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 57AC, have been discussed with and explained to [name of witness].
3. I believe this trial witness statement complies with Practice Direction 57AC and paragraphs 18.1 and 18.2 of Practice Direction 32, and that it has been prepared in accordance with the Statement of Best Practice contained in the Appendix to Practice Direction 57AC.”

There is also a specific requirement in Paragraph 3.2 of the PD in respect of documents:

“A trial witness statement must set out only matters of fact of which the witness has personal knowledge that are relevant to the case, and must identify by list what documents, if any, the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement. The requirement to identify documents the witness has referred to or been referred to does not affect any privilege that may exist in relation to any of those documents.”

Documents which are privileged can be referred to by “category or general description” rather than identified individually.

Appendix and Statement of Best Practice

There is a detailed statement of best practice which follows as an Appendix to the PD. This formalises many of the things which parties producing witness statements should have been doing already.

It reminds parties that:

• A witness should refer to documents, if at all, only where necessary. Statements should not quote at any length from any document to which reference is made.
• The evidence of the witness should be obtained through an interview and notes of that interview should be produced, dated and retained by the party’s legal representative in a “durable format”.
• Leading questions should be avoided when proofing a witness and should not be used at all in relation to important contentious matters.
• Trial witness statements should not seek to argue the case, generally or on particular points.
• On important disputed matters of fact, a trial witness statement should, if practicable:

1. state in the witness’s own words how well they recall the matters addressed,
2. state whether, and if so how and when, the witness’s recollection in relation to those matters has been refreshed by reference to documents, identifying those documents.

• If a trial witness statement is not based upon evidence obtained by means of an interview or interviews, that should be stated at the beginning of the statement and the process used instead should be described (to the extent possible without waiver of privilege).

The changes signal a significant attempt at changing the culture of trial witness statements in the Business and Property Courts and a move away from lengthy, argumentative statements. The update will also require solicitors to think carefully about how they go about proofing a witness ahead of producing their statement, particularly in respect of what documents they take the witness too when asking about events which often took place years before. And where the Business and Property Courts lead, it surely won’t be long before these provisions become best practice, and then mandatory, in the rest of the civil justice system.

About the Author

Chris Pask was called in 2013. He undertakes work arising out of contractual disputes, including cases involving sale of goods and supply of services, and in particular claims raising issues of fundamental dishonesty. Chris accepts instructions by way of Direct Public Access.

Greenwashing and the Travel Industry

A recent International Consumer Protection Enforcement Network sweep, led by the Competition and Markets Authority, looked at the issue of misleading environmental claims. In a review of almost 500 websites promoting products and services across a range of sectors, 4 in 10 websites were found to be using tactics that could be considered misleading, and could therefore be breaking consumer law. The findings included vague claims in unclear language, for example the use of terms such as “eco”, “sustainable” or “natural products”. Companies were also found to be using own brand eco logos and labels not associated with any accredited organisation and to be hiding or omitting information such as a product’s pollution levels. This sweep also coincided with one carried out by the European Commission focussing on “greenwashing”. This found that 42% of green claims were exaggerated, false or deceptive.

With growing awareness of the environmental impact of international travel, what might this mean for the travel industry? Before the pandemic “no fly” holidays were growing in popularity and it is easy to understand why travel companies would want to emphasise their green credentials. However, claims which cannot be substantiated clearly risk the attention of consumer authorities. Could there also be private remedies for individual consumers?

Misrepresentation

A claim in misrepresentation based on a green representation which is not a term of the contract would require the consumer to prove that they were induced by such a representation. While the representation need not be the sole inducement, it must have operated on the mind of the consumer when deciding whether to enter the contract. Further, generally a consumer will not have a remedy without proving that they would not have entered the contract but for the misrepresentation. Inducement and causation may be difficult to prove, bearing in mind all of the factors which induce a consumer to choose a particular holiday (location, price, amenities etc.). Would they be able to demonstrate that they both noticed and were induced by, for example, an unsubstantiated green logo? Travel companies may also be able to argue that very vague green claims constitute “mere puff” and are not actionable misrepresentations at all.

Breach of contract

Consumers will therefore want to be able to demonstrate that the green claim was a term of the contract, enabling them to sue for breach of contract. The Package Travel and Linked Travel Arrangements Regulations 2018 specify, at paragraphs 1 to 10, 12 to 14, and 16 of Schedule 1, certain information which must be given to the consumer. Per Regulation 6(1) that information “forms an integral part of the package travel contract” and must not be altered unless the traveller expressly agrees otherwise. Compliance with Regulation 6 is an implied condition of the package travel contract. Therefore if the information given pursuant to Schedule 1 is incorrect, the consumer will have a claim in breach of contract. The difficulty would be showing that the green claim related to the information to be given under Schedule 1. Since none of the paragraphs to Schedule 1 expressly deal with the environmental impact of the holiday, this will require close reading of the specific green claim and Schedule 1.

In respect of non-package holidays, section 50 of the Consumer Rights Act 2015 provides that:

“(1)  Every contract to supply a service is to be treated as including as a term of the contract anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service, if—

• it is taken into account by the consumer when deciding to enter into the contract, or
• it is taken into account by the consumer when making any decision about the service after entering into the contract.”

Therefore a consumer may have a claim for breach of contract where a false representation has been made about the service, but only if it is taken into account by the consumer. This appears not to put the consumer in a substantially better position than they would be in a misrepresentation claim. They must still show that that the green claim was relevant to their decision making.

Proving loss

A final issue with any private remedy is that false green claims are generally unlikely to be causative of any significant loss. It is difficult to see how the value of the holiday contract could be substantially diminished by a false green claim. The peace of mind that their holiday is having a minimal environmental impact may be of sufficient importance to some consumers that they could show a modest loss of enjoyment, but it is still hard to see a route to recovery of any significant damages.

Conclusion

Nevertheless, even if they are not threatened with a raft of individual claims, travel companies will need to be wary of making false claims. These sweeps are part of an international effort to combat “greenwashing” and the CMA is due to publish guidance for UK businesses later this year to help them support the transition to a low carbon economy whilst ensuring that consumers get the information they need.

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…

For those who’ve been missing Matthew Chapman QC, Russell Wilcox and Ella Davis, we have a treat for you; they will be presenting the TATLA Case Law Update on Friday 26^th February at 4.30pm.  You will note that the time and day have been carefully selected to allow us to have a guilt-free glass of wine after (or during) the webinar, and with a fair number of friends already registered, we’re sure to have a lively discussion about the cases from last year. We look forward to seeing you all there.