06
Dec
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Value Added Edition

Can a Claimant be forced to sue parties (s)he has no desire to bring into proceedings? A strange question, perhaps, but one that troubled the Court of Appeal in Pawley v Whitecross Dental Care Limited, Petrie Tucker & Partners Limited [2021] 12 WLUK 27. The Claimant had sued the Defendant dental practice as being vicariously liable for negligent treatment, but had elected not to bring proceedings against the dentists themselves, who had a potential limitation defence, at least by the time of the hearing in the Court of Appeal. In their Defence the practices denied that they were vicariously liable for any negligence on the part of the dentists, and asserted that they had a right to an indemnity from them. They did not bring them into proceedings, however, but applied under CPR Part 19 for them to be joined to the claim. The Claimant resisted the application, which succeeded before a District Judge and on appeal to a Circuit Judge. The Court of Appeal allowed the Claimant’s appeal, however, holding that where a Defendant wishes to seek an indemnity against a third party, the correct mechanism for involving the latter in proceedings is Part 20, even where (s)he is the tortfeasor. The judgment features helpful guidance as to the operation of Part 19, which the team at 1CL rather enjoy invoking from time to time as adding value to proceedings.

This week the High Court has also added still further gloss to the new rules on witness statements; and Tom Yarrow adds value to the Package Travel and Linked Travel Arrangements Regulations 2018.

 

Blue Manchester Ltd v Bug-Alu Technic GMBH [2021] EWHC 3095 (TCC): Guidance on the new rules for witness statements

A High Court Judge has ordered a defendant substantially to re-draft its witness evidence or face having it struck out. His Honour Judge Stephen Davies, sitting as a High Court Judge in the TCC, made the order in a long running dispute concerning defective cladding on Beetham Tower, Manchester.

The claimant, Blue Manchester Ltd (BML), a tenant of Beetham Tower, sought damages from Bug-Alu Technic GMBH (BUG) and Simpsonhaugh Architects Ltd (SHA), respectively, a sub-contractor and firm of architects involved in the manufacture and/or selection of the cladding.

BML applied to strike out certain parts of SHA’s witness evidence on the grounds that it breached (in particular) PD 57AC, which applies to trial witness statements signed on or after 1st April 2021 in the Business and Property Courts.

The decision

The Court took the unusual step of setting out, in granular detail, how the statements were to be re-drafted but also took the opportunity to provide more general guidance as to how parties should approach drafting their witness evidence, in the light of the new requirements of PD 57AC. Whilst the guidance strictly, only applies to trials in the Business and Property Courts, (i) it reflects many of the requirements of PD 32 and is any case good practice and (ii) the content of witness evidence is becoming an area of greater judicial focus. It is a timely reminder of the ‘dos’ and ‘don’ts’ in this critical phase of any claim.

The key practice points are the following:

  • Statements must be in the witness’s own words

A number of the witness statements contained identical or very similar statements in respect of particular issues. For example two different statements contained the following: “the Schumann Smith specification clearly defines the roles and responsibilities of each party in such an arrangement in a way that a standard NBS specification does not”.

The judge said it was difficult to see how this could ever occur if the requirements of PD57AC were complied with: ‘the fact that a legal representative is permitted to take primary responsibility for drafting a witness statement does not justify departing from the clear requirement that the witness statement should, where practicable, be in the witness’s own words’.

  • They must Identify the source of information or belief 

A number of passages in the witness statements were in the third person, and referred (for example) to “the intention from the outset” without stating whether the matters referred to were from the witness’s own knowledge (or, if not, identifying the source of information or belief).

The judge said it was difficult to see any justification for any part of any witness statement not being expressed in the first person.

Further, while it was possible to “make an educated guess” that if the witness were asked about these passages he would say they were from some combination of his own general recollection and having been referred to contemporaneous project documents, it should not be necessary to do so.

It would be sufficient in this case for the witness to have explained (for instance) that the content of his statement was based on a combination of his personal recollection of events, stating in general terms how well he recalled events overall, together with a re-reading of the contemporaneous documents, and to have identified those documents by list (see below).

  • They must list the documents referred to

Paragraph 3.2 of PD 57AC requires a witness statement to “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 the statement.

In this case SHA served a composite list of documents which failed to which documents had been referred to by which witness. The judge said it would not be sufficient for the statement merely to be accompanied by a list which was not referred to in the statement.

  • They must not contain irrelevant material

The judge considered that statements should only make reference to documents where the evidence is relevant and the reference necessary. In a number of places SHA’s witnesses referred at some length to a narrative derived from documents, and quoted extracts from them. The judge accepted that, in principle, it may be necessary to refer to documents in order to explain other evidence, but this should be no more than is necessary – for instance, if the witness had further relevant evidence to give about what they thought or said or did at the time in response to the documents.

The judge commented that lawyers need to be “prised away from the comfort blanket” of having a witness confirm a thread of correspondence “because otherwise it might in some way disappear into the ether or be ruled inadmissible at trial”. That narrative will be in evidence at trial without the need for the witness to summarise it in a witness statement.

  • They must state the strength of recollection on important factual disputes

The judge noted that the requirement at paragraph 3.7 of PD 57AC to state how well the witness recalls matters addressed in their statement, and to state whether (and if so how and when) their recollection in relation to those matters has been refreshed by reference to (identified) documents, only applies to important disputed matters of fact and is qualified by the words “if practicable”.

If, however, a witness considers it impracticable to comply, they must justify why that is the case.

Nor can a witness rely on their own subjective view of what is important to avoid compliance. The witness’s confirmation of compliance is limited to points that they “understand to be important in the case”, but the court can nevertheless intervene where a witness fails to state the strength of their recollection on an issue which, on an objective analysis, is important.

  • They must not contain unnecessary argument

The judge did not accept that a witness against whom allegations are made, whether in a professional negligence action or otherwise, is “given carte blanche to disregard PD32 or PD57AC by replying to the allegations in a way which includes argument, comment, opinion and/or extensive reference to or quotation from documents”.

Parties have numerous ways to respond to such allegations, including in their defence, opening and closing submissions, and in some cases expert evidence.

Comment

The decision comes hot on the heels of the judgment of Mrs Justice O’Farrell in Mansion Place Limited v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC) in which she expressed concern at the possibility of costly satellite litigation arising from disputes over compliance with PD 57AC, and encouraged parties to find a more efficient and cost-effective way of dealing with such disputes.

HHJ Stephen Davies, for his part, expressed the hope that, as PD57AC becomes more familiar and the principles become clearer, “such heavily contested, time-consuming and expensive applications become the exception rather than the norm”. Readers will recall the Court of Appeal expressing similar sentiments about CPR 3.9 and the relief from sanctions jurisdiction in Denton, which continues to be fertile ground for satellite litigation…

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.

 

Flight-Plus Holidays and the Package Travel and Linked Travel Arrangements Regulations 2018

As we approach three and a half years since the coming into force of the Package Travel and Linked Travel Arrangements Regulations 2018 (“PTRs 2018”), courts are likely to see a number of personal injury cases approaching limitation from holidays booked in the period shortly after 1st July 2018. Much like any post-liminal epoch following transition to a new legal order (not mentioning any names), cases with factual premises falling in this period will present a certain set of challenges to litigators.

One such will be that, despite the snailscreep by which the legislation was formed – first the years that went into the EU Package Travel Directive 2015 and then the years which followed in its implementation in the UK – the documentation provided by the actors in these dramas will inevitably have failed to keep pace. To take an example, consider a holiday booked in August 2018 through a travel agent which by its Terms and Conditions calls itself a ‘flight-plus’, and where the agent issues an ATOL certificate for ‘flight-plus’ protection. How is such a holiday now protected by the new PTRs?

As a starting point, the travel agent will have got it wrong. Here follows a brief history.

Defined in the Civil Aviation (Air Travel Organisers’ Licensing) Regulations 2012, a ‘flight-plus’ holiday was one where (most commonly) a consumer booked flights and within a 24-hour period requested accommodation to be booked by the same organiser under or in connection with the contract for the flights. Because these were not sold or offered for sale at an inclusive price, and involved contracting individually with the separate providers, they did not constitute a ‘package’ within the meaning of the Package Travel (etc.) Regulations 1992, but nevertheless certain consumer protections for the new category were added to the statute book.

The explanatory note to the 2012 Regulations gave the policy rationale for the creation of these rules as:

“Recently there have been changes in the way that holidays are sold, particularly on the internet, where it is becoming increasingly popular for agents to sell, or individuals to create for themselves, what are sometimes called ‘dynamic packages’. These are holidays consisting of individual components (such as flights and accommodation) which are available for purchase separately, but are bought together. Such holidays do not currently fit in with the definition of a ‘package’, and so do not require ATOL protection.”

‘Flight-plus’ holidays did not at that stage form any part of the EU regime governing package travel and were purely a domestic construct. However, by the passing of the 2015 Directive, the definition of a ‘package’ in EU law was significantly broadened, and in 2018 the UK accordingly changed the domestic regime for holidays booked after 1st July 2018. The UK implemented the Directive by way of the PTRs 2018, and made corresponding amendments to the ATOL regime by way of the Civil Aviation (ATOL) (Amendment) Regulations 2018. By this instrument, ‘flight-plus’ holidays ceased to exist as a separate category of holiday and all references to ‘flight-plus’ were removed from the 2012 Regulations by way of amendment. The explanatory note to the 2018 ATOL Regulations explains:

“The changes broaden the scope of traditional flight-inclusive package protection to cover modern methods of buying ‘package holidays’ by aligning with the wider definition of ‘package’ used in the 2015 Directive. […]. The separate Flight-Plus category is removed as the types of bookings it was set up to protect will now be regulated as packages or as linked travel arrangements under the PTRs [2018]” (emphasis added).

This is because in the PTRs 2018, the definition of ‘package’ was altered to overlap significantly with (if not envelop entirely) the flight-plus category, including situations where, even though separate contracts with different service providers are entered into:

holidays are charged at a total price (e.g. not just offered for sale at an inclusive price);

and/or

although not presented as a package, an agent allows the consumer to ‘create-their-own’ by picking their services at a single point of sale;

and/or

a consumer purchased the holiday through separate traders if the online booking processes are linked and the consumer’s details are passed from one trader to another and the later contracts are concluded within 24 hours of the first contract.

The PTRs 2018 also introduced the concept of a ‘linked travel arrangement’. Such occurs where at least two different types of travel service are purchased for the purpose of the same trip or holiday, but via the conclusion of separate contracts (and importantly separate payments) with the individual service providers, and where a trader only facilitates the consumer’s relationship with the other contractors.

It follows from those new definitions that the overwhelming majority of holidays which prior to July 2018 would have been called ‘flight-plus’ will now be considered to be a ‘package’. This is the legal position notwithstanding any antiques in the booking documentation referring to the old category of holiday which, like the proverbial parrot, ceased to be on 1st July 2018. Importantly, in these circumstances, Regulation 15 of the PTRs 2018, which attaches liability to the organiser for failures of service providers under the holiday contract, would bite.

As ever, there is no substitute for analysing the booking process and documentation carefully, and consumers should (regrettably) not just take the traders’ documents at their word.

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.

 

…And Finally…

We were interested to read that union leaders representing American airline workers are calling on the government and airlines to create blacklists identifying unruly and violent passengers. This follows a spike in incidents involving disruptive passengers; normally the Federal Aviation Administration would record between 100 and 150 such cases per year, but over 5,000 have been reported so far this year. Now the union representing flight attendants is pushing for airlines to share data on disruptive passengers, and airlines seem to be attracted by the idea. Where the US airlines lead, will the EU carriers follow? The creation of a blacklist raises all kinds of intriguing issues around data protection, denied boarding, and even, potentially, defamation. Equally, any refusal to identify and blacklist abusive passengers could, potentially, be seen as a breach of the airlines’ non-delegable duty to provide a safe place of work for their employees. Really, who would want to run an airline in modern times? It’s just one thing after another.

Written by or involving: Tom Collins, Thomas Yarrow

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