31
Jan
22
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Wilde Edition

According to Oscar Wilde, we are all in the gutter, but some of us are looking at the stars. The team finds this apercu encouraging, particularly when, as this week, we have spent quite a lot of time examining judgments many and varied. Amongst the stars we noted were the publication of the Advocate General’s Opinion in Ligue des Droits Humains v Conseil des Ministres, Case C0817/19, in which the AG considered the transfer and processing of Passenger Name Record data, and opined that the transfer and the generalised and undifferentiated automated processing of PNR data are compatible with the fundamental rights to respect for private life and to the protection of personal data. However, a generalised and undifferentiated retention of PNR data in non-anonymised form can be justified only where there is a serious, actual and present or foreseeable threat to the security of the Member State, and only on condition that the duration of such retention is limited to what is strictly necessary. Furthermore, in the AG’s opinion, the transfer of data appearing under the heading ‘General remarks’ laid down by the PNR Directive does not meet the requirements of clarity and precision required by the Charter. If the CJEU agrees, it will be necessary for Member States to review and amend their implementation of the Directive accordingly, and it will be interesting to see how this plays out both in the EU and in the UK.

In another decision of more immediate consequence to litigators, O’Grady v B15 Group Limited [2022] EWHC 67 (QB), Master Thornett came to the perhaps surprising but certainly pragmatic conclusion that the doctrine of common law mistake could apply to a Part 36 offer where a clear and obvious mistake was made, and that mistake was appreciated by the offeree at the point of acceptance. In those circumstances, the offeror could be permitted to withdraw the offer. Finally, in Buttar Construction Limited v Arshdeep [2022] PIQR P3, the Court of Appeal clarified the provisions of CPR Part 25.7 in relation to interim payments where liability is not admitted and the position as to whether the Defendant is insured is unclear.

 

The Importance of Being Expert: Radia v Marks [2022] EWHC 145 (QB)

Introduction

In 2011, the Supreme Court reversed 400 years of history in Jones v Kaney [2011] UKSC 13, and decided that expert witnesses were not immune from suit. Nevertheless, the difficulties of claiming professional negligence against an expert witness are manifold. In Radia v Marks, the High Court dismissed a claim against a medical expert who gave evidence as a joint expert in employment tribunal proceedings. This judgment also usefully reaffirms the role of expert evidence in civil litigation, and the responsibilities of expert witnesses.

Factual Background

In 2015, the Claimant submitted a claim to the Employment Tribunal, raising complaints of discrimination, harassment and victimisation against his former employer, Jeffries Ltd. The disability in question was Acute Myeloid Leukaemia (“AML”). The claim was dismissed, with the Tribunal finding that the Claimant had intentionally misled them. In particular, one discrepancy was his weight as recorded in the expert report and that recorded in his medical records.

The dismissal of judgment was followed by an application for costs, in which the Tribunal found that the Claimant had acted unreasonably by telling lies which were deliberate, serious and central to the case, concerning his weight following chemotherapy and a holiday in Mexico in May 2011 which he alleged he had been ‘forced to miss’.

The Defendant is a consultant in haematology and stem cell transplant. He was instructed in the Tribunal proceedings to report on the effects of AML and its treatment upon the Claimant’s condition following his return to work. The Claimant alleged that the Defendant misreported his chemotherapy-related weight loss and then compounded the error by not undertaking a competent review of the medical records. Had he done so, the Tribunal would not have found the Claimant to be dishonest.

Judgment

The claim was dismissed on the grounds of scope of duty, breach and causation. Judgment was given by Mrs. Justice Lambert.

Scope of Duty Question. The issue was whether the Defendant owed a duty to the Claimant to protect him from the risk of an adverse credibility finding. Mrs. Justice Lambert found conclusively that it did not. It was no part of the expert’s retainer to advise or assist on issues concerning the credibility of the Claimant. More broadly, a medicolegal expert could not give evidence about the credibility of the Claimant. The expert’s opinion is admissible only in relation to their expertise, not matters of common knowledge which the Tribunal could address for themselves.

Further, to extend the expert’s duty to protect a party from the risk of an adverse credibility finding would create a real conflict between their overriding duty to the court and their duty to the party. This was particularly so when the expert is instructed jointly by both parties.

Breach of Duty. While both parties had called experts on breach, Mrs. Justice Lambert made it clear that the issues were not matters within the expertise of a medical expert. She rejected the Claimant’s allegation that he told the Defendant that he weighed 50kg when his weight was at its nadir. This was contradicted by the contemporaneous evidence, and the fact that the Claimant did not pick up on this alleged error at any point in the proceedings. She accepted the Defendant’s evidence that he reviewed the records as studiously as he could within the time constraints. If there were errors in his report, then both parties would be able to challenge the accuracy of the report. Any failure by the Defendant to search for the records after his conclusion did not constitute a breach of duty.

Causation. The Claimant did not succeed on proving causation. Mrs. Justice Lambert noted that the finding that the Claimant was dishonest was based upon a number of factors; not just his account about his weight. Had the discrepancy been identified, the same conclusion is likely to have been reached by the Tribunal. In any event, the costs order did not purely flow from its findings of dishonesty, but also because of the sheer multitude of his claims that had no reasonable prospect of success.

Comment

There are two points which are of special interest to travel practitioners. First, this judgment is a useful reminder of the limits of expert evidence. Matters such as the credibility of a witness or the standard by which an expert should check the evidence do not require any special expertise. These are generic issues which are matters for the court. Despite both parties instructing expert witnesses, Mrs. Justice Lambert regarded their assistance as ‘marginal’.

Second, this judgment reaffirms the duties of an expert as set out in The Ikarian Reefer [1993] FSR 563. An expert witness should provide independent assistance by way of objective unbiased opinion. It is not their role to act as a hired gun for the party who has instructed them. In particular, an expert’s role is not to protect a party from the risk of an adverse credibility finding. Ultimately, a court is looking for independence and objectivity when assessing evidence from an expert witness.

About the Author

Anirudh Mandagere is a probationary tenant. He previously worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics. He looks forward to building a practice in all of chambers’ specialisms, including travel law.

 

Public Institution for Social Security v Banque Pictet & Cie SA [2022] 1 WLUK 266

Background

This case clarified and confirmed the approach to be taken to “exclusive jurisdiction clauses” (“EJCs”) under Article 23 of the Lugano Convention, and their relationship to Article 6. It concerned multiple overlapping claims arising out of alleged corruption of the former Director General of the Applicant, Mr Al Rajaan. The Applicant alleged that between 1994 and 2014, Mr Al Rajaan illegally solicited and received bribes totalling at least $847.7 million. There are 37 defendants; the claims against 22 of them will be heard in England.

In summary, the claims fell into three categories:

  1. the bribery claims, in which the relevant Respondents were alleged to have paid and/or aided and abetted bribes;
  2. the accessory claims, in which the relevant Respondents were alleged to have participated in the laundering and concealment of those bribes; and
  3. the wider accessory claims, in which the relevant Respondents are alleged to have participated in the laundering and concealment of very substantial other bribes paid by other defendants pursuant to other schemes.

The claims amounted to hundreds of millions of pounds. The Respondents included:

  • banks domiciled in Switzerland and Luxembourg (both signatories to the Lugano Convention);
  • their former employees and partners;
  • banks domiciled in the Bahamas and Singapore (not signatories to the Lugano Convention); and
  • individuals domiciled in Switzerland.

The Applicant sought to bring all the claims in England on the basis that the principal defendant, Mr Al Rajaan, is domiciled here, had submitted to the jurisdiction of the Court and is the anchor defendant for the purpose of Article 6 of the Lugano Convention.

Following applications under CPR Part 11 disputing the jurisdiction of the Court, the judge at first instance held:

  1. The Court’s jurisdiction in relation to the bribery and accessory claims against the Swiss and Luxembourg domiciled entities, and former partners of those entities, was excluded under Article 23 of the Lugano Convention.
  2. Because of this, it was not expedient for the Court to hear and determine the wider accessory claims in order to avoid the risk of irreconcilable judgments under Article 6.
  3. It was also not expedient for the Court to hear claims against individuals who could not take the benefit of any ECJ, in order to avoid the risk of irreconcilable judgments under Article 6.
  4. Because of the above, England was not the convenient forum for the claims against entities domiciled in the Bahamas and Asia.

The Applicant appealed these findings to the Court of Appeal, which dismissed the appeal in its entirety, and clarified the law relating to Articles 6 and 23 of the Lugano Convention.

The factual details that gave rise to the specific points of appeal are complex. However, from these, the Court provided clarification on some important points of law.

 

Nature of jurisdictional challenges

The Court confirmed that jurisdictional challenges should be straightforward and proportionate. They should be “resolved as swiftly and succinctly as possible, reflecting the fact that the court is not reaching any final decisions on the merits but rather determining simply where the litigation should proceed (significant though the outcome of that decision may be)” (para [14]). The Court criticised the parties in the case, which had incurred many millions of pounds worth of costs in challenging jurisdiction at the first instance. The fact that the allegations involved were serious, or that the amounts of money concerned were substantial, did not justify making a jurisdictional dispute “an extensive and essentially self-standing piece of litigation” (para [12]).

Article 23: Express reference is sufficient for incorporation

Article 23 requires that, to be effective, any EJC must be:

  1. in writing or evidenced in writing; or
  2. in a form which accords with practices which the parties have established between themselves; or
  3. in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

The Court confirmed that an EJC must therefore be the subject of a consensus which is clearly and precisely demonstrated, but that an express reference to the terms and conditions in which it is contained is sufficient. If “the text of the contract signed by both parties itself contains an express reference” to terms and conditions which include an EJC, that is sufficient (para [63]). The Court rejected the Applicant’s argument that the EJC also needed to be communicated in these circumstances. Thus, a reference to terms and conditions that include an EJC will be enough, even if those terms and conditions are never provided to the other party.

Article 23: Scope of an EJC is fact sensitive and not limited to the contractual relationship

Article 23 requires the parties to have agreed that the nominated court is to “have jurisdiction to settle any disputes which have arisen, or which may arise in connection with a particular legal relationship”. This is often referred to as “the material validity requirement”, an issue again to be determined by reference to autonomous EU legal principles.

There were challenges relating to how the issue of the material validity requirement should be approached. The Court confirmed that:

  1. it will always turn on the specific facts of the case (para [89]);
  2. it is permissible to take account of the wider context where relevant (para [86]); and
  3. the legal relationship to which an EJC applies need not be confined to the contract containing the EJC itself (para [86]).

The Judge was entitled to find that the EJC applied to the claims, as they arose from circumstances resulting from the legal relationship:

 

The Judge was not impermissibly transforming non-contractual dealings into a legal relationship: as the Amended Consolidated Particulars of Claim demonstrate and as considered in detail by the Judge, the accounts are front and centre of the relationships between the parties… The fact that the bribes did not pass through the accounts is not to the point; what matters is the context of the activities that created the stream of commissions forming the subject of the Pictet/Mirabaud bribery and accessory claims” (para [93]).

The Court also confirmed that “there is no need for the jurisdiction clause in question to make express reference to the particular type of dispute that has arisen in order for the dispute to fall within scope” (para [96]). It rejected the submission that, absent reasonable foreseeability, the relevant nexus does not exist, on the basis that such an approach would undermine the function of EJCs.

Therefore, in deciding whether the material validity requirement has been met in any particular case, judges are to look at whether the claims are sufficiently linked to the relevant contract, despite not being claims made under that contract, or having been foreseen by that contract.

Article 6: considerations can take a broad approach, including consideration of EJCs under Article 23 and claims against co-defendants in other member states

Article 6 states allows one defendant to be sued in the country where another defendant is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

The Court assessed the correct operation of Article 6 when there are overlapping claims:

  1. against the same defendant some of which must be considered in that defendant’s state of domicile pursuant to an EJC under Article 23; and
  2. connected claims against another defendant.

In relation to (i), the Court confirmed that the national court considering expediency under Article 6 can take account of an EJC under Article 23. It rejected the submission that doing so resulted in “exclusive jurisdiction clauses having practical effects well beyond the scope of their application, with the collateral effect of conferring on them a “gravitational pull” which is inconsistent with the proper interpretation of Article 23” (para [110]). It held the Court:

can take account of any risk created by the assumption of jurisdiction of irreconcilable judgments of the national court and the court chosen contractually by the parties through exclusive jurisdiction clauses… there is an evaluative exercise to be carried out, namely an assessment of whether the acceptance of jurisdiction under Article 6 would increase or decrease the risk of irreconcilable judgments. This is not an impermissible forum conveniens analysis by the backdoor; rather it considers the question of expediency by reference to the touchstone of the avoidance of irreconcilable judgments so far as possible. It is correct, as [the Applicant] identifies, that this approach can be said to give “gravitational pull” to Article 23. There is nothing objectionable about that, given the respect to be accorded to party autonomy” (para [131]).

In relation to (ii), it also found that it was not limited to considering the risk of irreconcilable judgments between the claim against the anchor defendant and the claim(s) against the proposed Article 6 defendant(s). Where relevant, the court can consider the risk of irreconcilable judgments between the claims sought to be made against the proposed defendant and other claims in other member states:

An approach which permits a person to be sued as a co-defendant in one member state on certain claims, in circumstances where that person must be sued in another member state on claims with a close factual connection to them, offends [the objective of Article 6]. [The Applicant’s] construction, which requires the national court to ignore the other claims to be brought in another member state, can be said to frustrate, rather than accomplish, the legislative purpose: it creates a risk of inconsistent factual findings in relation to the same defendant in different member states (para [119]).

Conclusion

Therefore, the Court of Appeal confirmed (at para [145]):

Article 23(1)(a): as a matter of EU law, there is no requirement of actual communication of an exclusive jurisdiction clause where the counterparty has signed a contract that includes express reference (and hence agreement) to general business conditions which contain the clause. “Real consent” for the purpose of Article 23 does not necessarily require actual communication of a particular term; express agreement to incorporation can be enough. There is in any event no sufficient basis on which to depart from well-established English appellate authority to this effect.

Article 6: in circumstances where a claimant is required (by Article 23) to sue a defendant in an overseas jurisdiction but seeks to pursue in this jurisdiction connected claims against the same defendant, the court’s consideration is not limited to a consideration of the risk of irreconcilable judgments between the claim against the anchor defendant and the claim(s) against the proposed Article 6 defendant(s). Rather, where relevant, the court can consider the risk of irreconcilable judgments between the claims sought to be made against the proposed defendant and other claims in other member states. This is consistent with the policy objectives of Article 6, namely to facilitate the sound administration of justice, to minimise the possibility of concurrent proceedings and thus to avoid irreconcilable outcomes if cases are decided separately.

About the Author

Kerry Nicholson is a probationary tenant. She undertook pupillage with the Government Legal Department and on secondment at Henderson Chambers and is looking forward to working within the team at 1CL on travel related and other claims.

 

…And Finally…

We were intrigued to read this week that aircraft infestation by insects caused two take-offs to be abandoned at Heathrow last summer. It seems that, as with so many travel-related issues, the pandemic is to blame; aircraft remaining on the ground for longer periods than normal between flights created an ‘attractive opportunity’ for wasps and bees to nest in the probes used to measure the speed of the planes, which, according to the Air Accidents Investigation Branch, are ‘ideal construction sites for nests’. As we understand it, one minute you’re hurtling down the runway as usual, and the next your cockpit display speed readings are all over the place, creating a serious hazard and forcing you to abort take-off. And the AAIB thinks we could be in for more of the same; the high level of insect activity last year could lead to a larger number of insects emerging in the spring of 2022, so the risk of more probe blockages ‘could be significant’. We wonder what the Court of Justice of the European Union and the domestic courts of the UK will make of the inevitable claims under the Denied Boarding Regulations; could insects bring about the divergence of English law from that of the EU for which we’ve all been waiting since Exit Day?

 

Written by or involving: Kerry Nicholson, Anirudh Mandagere

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