14
Feb
22
Articles, Travel & Cross Border Claims
The Weekly Roundup: The Russian Edition

Russia has been much in the news lately, what with the new Kingsman film featuring Rasputin, surely the most resilient monk in history, and although we’ve yet to hold a chambers’ private screening, we’re looking forward to it as a bit of knockabout fun. In a similar vein, we were intrigued to see another cancellation refund claim working its way through the courts, this one involving the recoverability of refunds under the Package Travel and Linked Travel Arrangements Regulations 2018 in an educational setting. Look out for Tom Yarrow’s review of the case later this week. In the meantime, we present Robbie Parkin on the new Queen’s Bench Division guide and Henk Soede on jurisdiction and forum non conveniens.

 

From the Queen’s Bench Division with Love

Practitioners in the Queen’s Bench Division (“QBD”) in the Royal Courts of Justice (“RCJ”) in particular are very strongly encouraged to have regard to the updated version of The Queen’s Bench Guide[1].

The Guide attempts to “provide a general explanation of the work and practice of the Queen’s Bench Division” and “it must be read with the Civil Procedure Rules (“CPR”) and the supporting Practice Directions (“PD”)”. The latter, perhaps, reinforces the author’s impression that the workings of the QBD have disquietingly little grounding in the CPR, and perhaps vindicates the need for guidance.

The Guide runs to 193 pages, 27 chapters, and 12 annexes and a detailed summary is far beyond the scope of this article. What is offered here is an attempt to provide a very broad summary of the novel topics covered, and what important themes can be identified.

The work likely to find its way into the QBD (as opposed, say, to the Chancery or Family divisions) is described in the introductory paragraphs. The Guide will, for example, apply to claims for personal injury reaching the High Court; just as it will to Administrative judicial reviews. Guidance is provided for the various specialist courts, opening times, contact details, and the judges of the QBD.

The second chapter aims to assist litigants in person. In summary “the Court will have regard to the fact a party is unrepresented (see CPR 3.1A) but it will not usually apply a lower standard of compliance with rules, PDs or orders of the court (see Barton v Wright Hassall LLP [2018] UKSC 12”– a distinction well worth remembering in submissions and advice.

The third chapter deals with electronic filing via CE-File. This is a mandatory electronic working system for represented parties. This is a fairly user-friendly system which is surprisingly easy to grasp and does not present the barrier to entry which it may at first appear. The importance of CE-Filing, and its usage, permeates the rest of the guidance. Practitioners in this court will need to be very familiar with it.

Chapters four through to eight deal with areas without significant departure from the corresponding provisions of the CPR, and may be of less use to practitioners already familiar with more general civil litigation.

Chapter nine, however, deals with practices for listing hearings. This contains an absolutely vast range of information about the judge who will hear particular kinds of list, when they will be heard, and by what means. While a full summary would be impossible to cover briefly, this is an area which should be considered carefully, if situationally.

Chapter ten deals with a wide range of case management topics, though by far the most relevant, and most commonly breached, are the guidance provisions for electronic bundles. A reasonably comprehensive guide is at paragraph 10.20.

Chapters eleven to fourteen again deal with relatively familiar material unlikely to be surprising to most practitioners.

Chapter fifteen deals with orders, and the guidance is most likely to be relevant, and helpful, to practitioners with carriage of an order. The rules are subtly different for different kinds of judge -see paragraphs 15.2 and 15.8. Paragraph 15.20- the requirements for a valid Tomlin order- is also worth reading.

Chapters sixteen and seventeen deal with unusual areas most likely to reach the QBD- applications for extended and general civil restrain orders; and the Media and Communication list (defamation, mostly). Plainly these will be of situational relevance if dealing with this kind of material.

Chapter eighteen to twenty-one again deal with matters which should, generally, be familiar to practitioners involved in general litigation.

Chapters twenty-two and twenty-five deal with the enforcement powers of the QBD. There are, of course, circumstances in which it is advantageous to transfer to the QBD for enforcement, many of which may well not be readily familiar. Chapter twenty-five deals with enforcement of foreign judgments, alongside annex ten.

Chapters twenty-three and twenty-four deal with applications for committal. Such orders are particularly likely to reach the QBD. Rather disappointingly, the guide makes no mention of the RCJ as the last surviving institution in the country with a non-ceremonial tipstaff- a member of court staff, rather than a police officer, will take a person committed for contempt into custody if that order is made within the precincts of the RCJ.

Chapters twenty-six (and annexes eleven and twelve) and twenty-seven deal, again, with unusual areas- applications to change name by deed poll and election petitions. In the relatively improbable circumstances that a practitioner is required to deal with these, this guidance will be well worth reading.

Annexes one and two provide a plan for the RCJ (a labyrinthine building in which most practitioners will, at some point, have been lost) and contact information.

Annexes three to five and seven to nine provide useful precedent material and practice notes not fitting elsewhere in the guidance.

Annex six is by far the most important, providing guidance for the filing and service of skeleton arguments, a requirement it is all too easy to breach inadvertently.

It is appreciated that this is something of a whistle-stop tour through the QBD guidance, but it may perhaps assist in flagging up important areas not particularly outlined elsewhere- the expected practice for CE-Filing, skeleton arguments, hearing attendance, carriage of orders, and enforcement will not necessarily be adequately understood by most practitioners- the author includes himself in the latter.

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.

 

Roads to Moscow (or San Marino?)

In Denisov v Delvecchio (unreported, 8 February 2022), Judge Pelling QC was asked to consider an application for permission to serve out of the jurisdiction in a claim concerning foreign nationals and a property deal gone wrong. The decision addresses CPR 6B para 3.1(15) and is yet another case in which the thorny issue of forum (non) conveniens posed problems for a claimant.

Background

The claimant (C), a Russian national domiciled in Russia, instructed the first (D1) and second (D2) defendants, both of whom were domiciled in San Marino, to advise him about a property transaction. It was alleged by C that D1 and D2 had told him that the purchase price for the property was €8.85 million and that the seller required €2.85 million to be paid to a non-Italian bank account controlled by a third party company (G). G’s purported role was to hold the sum and pay it to the seller on completion. The money was transferred from C’s Swiss account to an English bank account held by G. The English bank account had been set up by an English company on G’s instruction. C alleged that the true price of the property was 6 million and that the €2.85 million had been withdrawn by D2, which controlled G. C made a Norwich Pharmacal application against the English bank and this showed that the €2.85million had been dissipated, in part as legitimate fees to the bank and the agent, with the remainder sent to a Swiss bank account. C’s case was that (a) D1 and D2 were liable in deceit in respect of the property’s sale price; (b) the sum in the English account had been subject to a constructive trust; (c) D2 had dishonestly assisted G to breach the constructive trust; and (d) all of the defendants were liable for an unlawful means conspiracy.

Gateway

C sought to rely on CPR 6B para 3.1(15), which provides:

the claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where — … a claim is made against the defendant as constructive trustee, or as trustee of a resulting trust, where the claim arises out of acts committed or events occurring within the jurisdiction or relates to assets within the jurisdiction”.

The issue for C was that, for the purposes of this gateway, the assets had to be in the jurisdiction as at the date of service for the application and the assets had previously been transferred to a Swiss bank account. The better argument related to the requirement that the claim arises out of “events occurring within the jurisdiction”, as those events could be historical. The events giving rise to the claim included the dissipation of assets from the English bank account. The Judge was prepared to accept that a constructive trust had come into existence as soon as the funds were in the English bank account as a result of the deceit: Halley v Law Society [2003] EWCA Civ 97 considered. Although these events had been orchestrated by D2 from outside of the jurisdiction, the Judge accepted that the transfer of funds to the English bank account and the subsequent constructive trust constitute an event in the jurisdiction. The gateway was accordingly available to C on that limited basis.

Forum (non) conveniens

C was also required to show that in all the circumstances England was clearly the most appropriate forum for the claim and that the court should therefore exercise its discretion to permit service out. The Judge considered, however, that England was not the most appropriate forum for the claim. The factors relied on were as follows: all of the parties were domiciled abroad; the funds which were the subject of the dispute had originated in one Swiss bank account, briefly sat in an English account, and were then transferred to another Swiss bank account; the false representations said to constitute the deceit had been made outside of the jurisdiction; the English agent was not a party to the dispute and there were no allegations of wrongdoing against it; none of C’s assets remained in England; and there was no evidence to suggest that the proposed causes of action would not be available in San Marino.

Conclusion

Accordingly, the Judge refused to grant permission to serve out on the Defendants in San Marino on grounds of forum (non) conveniens. The decision is a healthy reminder that, even if there is a good case in relation to the gateway requirement, the forum conveniens requirement will be a difficult hurdle to overcome where neither party are domiciled within the jurisdiction and the key events giving rise to the claim happened abroad.

About the Author

Henk Soede was called to the Bar in 2019. Since April 2020, he has been instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims. He is eager to build on his experience in these areas​, but accepts briefs in all chambers’ areas of work.

 

…And Finally…

In a further sign that things are returning to normal, at least in the English courts, our attention was drawn this week to another of those English tourists who pop up from time to time complaining that Abroad is full of Foreigners. On this occasion the complaint was that the Spanish hotel at which the complainant was accommodated was ‘full of Spanish holidaymakers’; other claims we have seen made have involved Foreign Food being served to unsuspecting English hotel guests, as well as holidaymakers of Other Nationalities being accommodated at the same hotel as English People. We hesitate to offer unsolicited advice to the latest disgruntled holidaymaker, but in our experience such outrages invariably go unpunished, the courts tending to take the view that these horrors are only to be expected when people choose to travel outside the jurisdiction.

[1] https://www.judiciary.uk/wp-content/uploads/2022/02/Queens-Bench-Division-Guide-2022.pdf

Written by or involving: Robert Parkin, Henk Soede

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