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Articles | Mon 9th Nov, 2020
This week we learned that the Court of Appeal has declined permission to appeal in Swift v Carpenter  10 WLUK 74, but that the Supreme Court has managed to find time in its busy schedule to hear the leapfrog appeal in the FCA business interruption insurance litigation, which will be heard from 16th November this year. In less rarefied circles, County Courts up and down the country have been grappling with the consequences of the recent decision in Griffiths v TUI  EWHC 2268 (QB), whilst the Great Refund Saga rumbles on, apparently without end. It’s too early to say who the winners and losers will be in any of these cases; thankfully we at 1CL, and our readers, are renowned for our patient forbearance.
The Great Refund Saga: how much money are consumers actually owed in refunds?
According to consumer group Which? the answer is more than £1 billion – a figure which will only rise over the next few weeks as holidays and flights are cancelled because overseas holidays are not permitted during Lockdown 2. The figure may not rise quite as much as expected, though, given one airline has announced it is not cancelling flights during lockdown, arguing that absent a cancellation there is no entitlement to a refund.
It is worth looking beyond the headline figure, however. It may not be correct to say that consumers are owed as much as £1 billion that should have been repaid within 14 days. Other sources say that this figure, striking though it is, actually includes sums owed to people who have accepted credit notes – and, in respect of ATOL-protected bookings, these credit notes are ATOL-protected when issued after 10th March 2020. This means that, ultimately, these credit notes are protected by the government until September 2021. In the meantime, customers are able to use them to re-book or request a refund. The scheme has recently been extended and now applies to credit notes issued until the end of the year.
ATOL protection will hopefully mean that many people due to go on package holidays in the next few weeks will opt for credit notes, rather than insisting on refunds, safe in the knowledge that their money is protected – and that way, mitigating at least some of the harm being caused to the travel industry.
It would be helpful, however, if Which? were to make clear the distinction between those holidaymakers still owed refunds, and those who have accepted credit notes and vouchers. Blurring the lines between these categories risks undermining the industry’s efforts to rebuild the consumer confidence which is the key to reinvigorating the sector.
About the Author
Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited  11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.
Case management post-Griffiths v TUI: where do we go from here?
When Griffiths v TUI  EWHC 2268 (QB) was handed down earlier this year, it was seen by many as a victory for claimants. Since the Court of Appeal’s decision in Wood v TUI  2 WLR 1051, defendants have successfully fought gastric illness claims by challenging the expert evidence provided. If an expert failed to adequately exclude alternative causes of illness when considering causation, or if it could be demonstrated that the factual basis for the expert’s opinion was incorrect, judges were often persuaded to, and did, dismiss these claims and place little weight on the expert’s report. Consequently, claimants faced an uphill battle when bringing gastric illness claims, particularly if they had become unwell, with no pathogen identified.
Griffiths paved the way for a change in approach. Where expert evidence is CPR compliant and uncontroverted, in that there is no evidence to challenge or undermine the factual basis of the report, nor is there any cross-examination of the expert, Griffiths provides that the expert evidence must be accepted by the court. As such, in low value claims where only expert evidence from the claimant is permitted, claimants are more likely to succeed.
What Mr Justice Martin Spencer does not appear to have considered, however, was the impact that his judgment in Griffiths would have on the case management of gastric illness claims. Unsurprisingly, defendants now wish to seek their own expert evidence in these claims, regardless of their value, as well as for the experts to be cross-examined at trial. Courts can expect defendants to raise such issues in their directions questionnaires, on the basis that to permit the defendant to obtain their own evidence or to cross-examine the claimant’s expert/s will allow them to properly defend the claim. In those cases where trial is imminent or forthcoming, applications seeking the above are currently being made by defendants, some of which have already been heard by the courts.
The success of applications for defendants to have their own expert evidence, or indeed to cross-examine a claimant’s expert/s at trial, appears to be dependent upon a number of factors. The overriding objective and proportionality are two of those factors. In fast track claims, particularly those with a low value, it seems unlikely that a court will consider it proportionate for a defendant to obtain their own expert evidence, as the costs of instructing the expert could be similar to, or indeed exceed, the value of the claim. In those cases which are fast track matters of a higher value, there may be more scope for a defendant to argue that it is proportionate for them to obtain their own expert evidence. Nonetheless, if the matter is close to trial, such an order permitting the same would seem unlikely, particularly if it would result in a trial date being vacated. In addition, the court will also have to consider whether additional expert evidence from the defendant would be reasonably required to resolve the proceedings, pursuant to CPR 35.1. Given the significance of Griffiths, it remains to be seen whether it will have an impact on the assessment of what is “reasonably required”.
However, whether the courts will permit a defendant to cross-examine a claimant’s expert/s is another matter. There is a real likelihood of fast track gastric illness claims being reallocated to the multi-track if experts are called to give oral evidence. To call experts to give oral evidence will likely result in trial time estimates of one day being exceeded, which could cause the claim to be reallocated to the multi-track. Despite this, some applications to call a claimant’s expert to trial have been successful. Should a defendant make such a successful application, claimant lawyers will no doubt be concerned about the costs of calling the expert to trial and the recoverability of those costs.
As an example of the approach the courts have taken, in one case known to the author, a gastric illness trial had been vacated due to Covid-19, prior to Griffiths being handed down. Following the judgment in Griffiths, and before the trial in this case had been relisted, the defendant made an application to call the claimant’s expert to be cross-examined. Even though the calling of the claimant’s expert would lead the case to be reallocated to the multi-track, the court granted the defendant’s application. The parties were additionally ordered to provide costs budgets, in spite of the fact they had incurred all costs up to the trial phase. Whilst this seems an unusual judgment, particularly given the proximity to trial, it demonstrates that the courts are sympathetic to the difficulties a defendant has in defending gastric claims post-Griffiths. Had the trial been relisted at the time the application was heard, however, it seems likely the court would have taken a different approach.
In light of the above, some lawyers may wonder where they go from here. Should claimant lawyers be agreeing to applications to call expert evidence, or for experts to be cross-examined? Should defendants make urgent applications for the same, in the hope that this gives them a better chance of defending the claim? At this stage, it is too early to say how the courts are universally approaching this issue. Given that these are case management decisions, it is anticipated that judges will vary in their approach to this issue. One thing, however, seems certain post-Griffiths: both parties are likely to incur additional costs in dealing with gastric illness claims.
About the author
Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.
It surely goes without saying that we at 1CL are all high fliers, so we were interested to learn that the president-elect of the United States of America ranked 76th out of 85 in his year as a law graduate. We’re sure this tells us something about lawyers and politicians, but we’re not sure what.
Speaking of high fliers, we were reminded this week that 1CL are the reigning champions of the Great Legal Quiz. We’ve even got a shield to prove it, currently standing in pride of place in the 1CL trophy cabinet. We had assumed that in the light of the current restrictions the quiz would not take place this year, and we would be able to hold onto our title for another twelve months, but no! The nationwide Great Legal Quiz will be held remotely on 25th November, and Quizmasters Extraordinaire Richard Cherry and Ian Stebbings will be hosting the 1CL version, which is sure to be educational and informative, as well as featuring some of your favourite members of chambers behaving in the measured and dignified way you’ve come to expect from us during quizzes. And all for an excellent charity. If you would like to participate, either as an individual, or fielding a team of colleagues, and be in with a chance of winning this magnificent trophy, please let Emma Williams know at firstname.lastname@example.org.