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Articles | Mon 21st Mar, 2022
It’s been another busy week for cross border practitioners. In a cosmetic surgery claim, the facts of which will be all too familiar to those of us practising in the area, Forster J considered the standard to which the surgeon should be held, coming down firmly on the side of the consumer. Meanwhile, over in the Supreme Court, Bott & Co eventually succeeded in their long running dispute against Ryanair, which the court also appears to have considered to be a good result for consumers. Meanwhile, in other good news for Claimants, in Lambert v MIB  3 WLUK 208 the Claimant, a motorcyclist injured in the course of a track day in Spain, succeeded in his claim against the MIB (albeit with a reduction of 25% on account of contributory negligence). The judgment contains a handy guide to the Spanish law on assumption of responsibility. And in potentially worrying news for practitioners, in Greencastle v Payne  1 WLUK 478 permission for a Claimant to rely on witness statements was withdrawn due to the statements’ failure to comply with the requirements of Practice Direction 57AC; the Claimant was, however, granted permission to rely on replacement statements subject to compliance. This is the latest in a string of cases emphasising the importance of drafting compliant witness statements: you have been warned.
Local Standards in Cosmetic Surgery Cases: does the Rule in Lougheed Apply?
In Clarke v Kalecinski & Ors  EWHC 488 (QB) the High Court was asked to determine a claim for personal injury suffered a result of cosmetic surgery undertaken in Poland. The Claimant brought actions in contract (to which English law applied) and tort (to which Polish law applied) against the operating surgeon (“D1”); the clinic where the operations were carried out and where the Claimant received pre- and post-operative treatment (“D2”); and the insurer of the clinic (“D3”). The decision is a must-read for those involved with claims concerning medical negligence abroad.
In or around the summer of 2014, the Claimant sought breast augmentation and uplift and thigh liposuction procedures. She conducted internet research and found europesurgery.uk.com, which advertised consultations in England followed by surgery in Poland provided by UK-trained, UK-registered surgeons, most prominent among them, D1: . The Claimant’s evidence was that she was reassured by the suggestion that D1 used to practice in the NHS and was registered with the GMC: . The contract was agreed with the agents of D2, who were based in England:  and . There was an initial consultation in London with D1 and the Claimant subsequently travelled to Poland to undertake the surgery.
After the surgery, the Claimant reported symptoms indicative of sepsis. The Claimant attended the clinic a number of times about these symptoms but she was not provided with adequate post-operative care: see  –  for further detail. The Claimant attended the clinic again with a fever and agonising pain and ultimately D1 removed the implants and drains were put in. After the remedial surgery, however, the Claimant’s symptoms persisted, and she was unable to contact the emergency numbers that were given to her. The Claimant decided she needed to go back to the UK despite her the fact that her condition was increasingly severe. Upon her arrival, the Claimant’s mother took her immediately to A&E, where she was diagnosed with severe and potentially life-threatening sepsis. The Claimant underwent immediate surgery to clean the wounds and further surgeries thereafter to remove the necrotic and infected tissue. The Claimant later underwent reconstructive breast surgery.
The Claimant brought actions against D1, D2 and D3 in both contract and tort. English law applied to the claim in contract pursuant to Article 6(1) of Rome II, whereas Polish law applied to the claim in tort pursuant to Article 4(1) of Rome II. There was no dispute as to whether the Courts of England and Wales had jurisdiction over the Defendants. Whilst a Defence was filed on behalf of D1 and D2, they did not otherwise engage in the proceedings. It was common ground that D2’s policy with D3 included an indemnity cap of approximately £38,500.
D3, in a skeleton argument filed shortly before trial, submitted that the Claimant’s pleading failed to properly particularise the provisions of Polish law on which they relied, with the consequence being that the law of the tortious claim was English law by default: . Forster J agreed that there was some uncertainty in the pleading in that it was “nowhere expressly pleaded that Polish law applied to the claim in tort, or what Polish law was”: . Whilst a request for further particulars was made in the Defence, no clarification had been provided. At any rate, the parties had proceeded on the basis that Polish law applied and the Claimant was given permission to rely on a Polish law report:  – .
The issue was resolved by permitting the Claimant to amend the Particulars of Claim so as to plead the relevant provisions of Polish law. The justifications for permitting the amendment were: (1) the Particulars of Claim were not clearly pleaded but it was implicit that Polish law applied to the tortious claim; (2) although particulars and clarification were requested by D3, the parties had proceeded on the basis that Polish law applied; (3) there was no measurable prejudice to D3 – it could not be said that D3 was taken by surprise (see ).
Expert medical evidence
The Claimant relied upon three expert medical reports, two of which were from Mr Urso-Baiarda, a plastic surgeon whose practice includes the management of life-threatening soft-tissue infections. Mr Urso-Baiarda considered that the treatment provided to the Claimant pre-operatively was inadequate: see . It was also Mr Urso-Baiarda’s strongly held opinion that the Claimant’s post-operative symptoms provided an ample basis for an urgent return to theatre with a suspected infection at her first post-operative attendance; that these issues were amplified with each subsequent attendance; and that the treatment provided by D1 and D2 fell far below an acceptable standard: . Mr Urso-Baiarda observed that D1 did not in fact have the experience of an NHS consultant and that (as far as he could see) D1 had no specialist training in plastic surgery nor relevant qualifications: .
The contractual position
So far as the existence of a contract was concerned, D1 and D2 accepted in their Defence that they were contractually bound to the Claimant in respect of the surgery, the consequent care and the clinic services provided to her: . Forster J considered that this also represented the legal position as gleaned from the evidence. It was found that the representations made on the website were incorporated as terms into the contract and that this was one contract involving both D1 and D2: . The incorporated terms were (1) that D1 would carry out the surgery and carry it out to the standard to be expected of a GMC registered surgeon proficient in plastic surgery and (2) the service provided would include a consultation with D1 and all requisite clinical nursing or specialist care required: ibid. The Judge rejected the submission that the representations as to the standing and experience of D1, as set out on the website, were ‘mere puffs’: .
It was also held that D1 and D2 had jointly promised to provide a package of surgery and care and were jointly and severally making promises to do that: . The contract imposed joint and several liability upon D1 and D2 given the shareholding position, the payment mechanisms and D1’s role in the provision of the surgical services: . D3 sought to argue, in spite of the pleadings, that D2 was not a contracting party but this was rejected by the Judge: see .
An issue raised by D3 at the trial was that it was not possible to be critical of D1 or D2 in this case because an English standard of care – that is, the standard identified in the Claimant’s expert reports – could not be transposed to an alleged breach of duty in a foreign location. This argument drew on the requirement for local standards evidence in package travel cases: see, for exp., Evans v Kosmar Villa Holidays  EWCA CIv 1003 and Lougheed v On The Beach  EWCA Civ 1538. Forster J concluded that there was nothing in this submission. The key findings were: (1) it was a term of the contract that D1 would operate to the same standard as a UK surgeon registered with the GMC and, therefore, this was the standard which should be applied to the activities in issue; and (2), even if that was wrong, the expert’s findings were couched in such stringent terms that it could be safely determined that there would be a breach whether the standard was English or Polish. In respect of (2), the Claimant’s counsel noted that in Lougheed reference was made to egregious, blatant and life-threatening situations where evidence as to local standards was irrelevant. Forster J held that the instant case was an example of such a scenario: . Otherwise, however, the Judge made no decisive finding as to “the applicability of the tour operators case to the concepts arising in medical negligence”, though it was stated that she would be inclined “to the view that they are inapplicable in such a context given the notion of a package holiday, and the policy reasons behind the case law that has been discussed”: see . It seems there was extensive argument on these points, though the Judge felt that it was “unnecessary to go further here” (ibid).
Conclusions on liability
Forster J found that the Claimant had proved her case in contract as well as tort: . Mr Urso-Baiarda’s report identified significant failings in both the pre- and post-operative care. These failings fell ‘far below an acceptable standard’ and there was ample evidence on which to conclude that the standard of care applicable to the tortious obligation under Polish law and/or the contractual obligation under English law had been breached. Accordingly, there was judgment for the Claimant for the sums sought, save that D3’s liability was capped at the sum specified in D2’s policy.
1CL’s Matthew Chapman acted for the Claimant in this important case, instructed by Irwin Mitchell.
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.
Solicitors’ Liens: Does a Lien Arise Pre-Proceedings?
In a much anticipated recent judgment, Bott & Co Solicitors Ltd (Appellant) v Ryanair DAC (Respondent)  UKSC 8, the Supreme Court decided, by a majority of three to two, that no dispute is required in order for a solicitors’ equitable lien to arise over monies paid in compensation to its clients.
Many claims are made against Ryanair each year in respect of flight cancellations and delays. The regime for such claims was laid down in Regulation (EC) No 261/2004 (now enjoying the status of retained law following the United Kingdom’s exit from the European Union). A significant number of those claims are handled by Bott & Co Solicitors Ltd on a “no win, no fee” basis. Before 2016, Ryanair was content to deal with Bott & Co acting as representatives of their clients, and, upon payment of compensation, would make payment into Bott’s client account. This would enable Bott to deduct sums owed to it under any conditional fee arrangement before paying the balance over to the individual client. In early 2016, however, Ryanair changed its practice and began making compensation payments to Bott’s clients directly. This prevented Bott from deducting its fees upon payment of compensation, and meant, instead that it was required to pursue its clients for non-payment through the courts.
Following Ryanair’s change of practice, Bott brought proceedings against Ryanair in which it asserted an equitable lien over compensation in respect of its costs and an injunction restraining Ryanair from paying compensation directly to Bott’s clients when on notice of Bott’s interest.
At first instance the High Court, ruling in favour of Ryanair, felt it was bound by authority to hold that a solicitor’s equitable lien could only arise once proceedings had actually begun, so that no such lien could exist in respect of compensation paid over before that point. Prior to the matter coming before the Court of Appeal, the law in this area was altered by the case of Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd  UKSC 21 which decided that a solicitor’s equitable lien could indeed arise where no proceedings had been commenced. Despite this, the Court of Appeal still dismissed Bott’s appeal on the basis that unless there is a dispute over a claim for compensation, Bott, and Solicitors in Bott’s position, are not truly providing a litigation service.
The question before the Supreme Court, therefore, was precisely how far the doctrine of solicitors’ equitable lien should extend. It seems to have been common ground that it is with a view to maximising access to justice that the scope of such liens should be framed. Lord Burrows, in the majority, took that view that Gavin Edmondson supported a clear and straight-forward test that does not turn on whether or not a dispute has arisen, since in that case the solicitors who claimed the lien had done nothing substantive beyond entering a claim on to an online portal. He set out the relevant test in the following terms at :
“…the appropriate test for a solicitor’s equitable lien is whether a solicitor provides services (within the scope of the retainer with its client) in relation to the making of a client’s claim (with or without legal proceedings) which significantly contribute to the successful recovery of a fund by the client…one might add, lest there be any doubt, that by “claim” one is referring to a claim asserting a legal entitlement or, as one can also describe it, a legal claim.”
As such, he found that Bott was entitled to the benefit of an equitable lien over compensation for its costs and that its appeal should be allowed. In so doing, he emphasised that this conclusion promotes access to justice because the opportunity for individuals to bring claims is likely to be greater if solicitors are able to rely upon a lien to recover their fees. In her concurring judgment, Lady Arden agreed with Lord Burrows and expressed the view that purely transactional work could be distinguished by applying the claim-based test he articulates.
For the minority, Lord Leggatt and Lady Rose, agreeing with the Court of Appeal, were of the view that the scope of a solicitor’s equitable lien should not be extended beyond the scope of an actual or reasonably anticipated dispute since the test based on whether an individual is “making a claim” is sufficiently uncertain to cover at least some transactional work which all agree is not desirable.
The consequences of the Supreme Court’s decision in Bott will take time to filter through. Clearly, the justices felt that it threw up a number of finely balanced questions which required them to consider the impact of the answers they reached from a broad systemic perspective. In the various judgments there is clear recognition of the mass-compensation model to which this sector has become increasingly accustomed. There is no real criticism of that model, nor of the principle that it should be weighted in favour of consumer/claimant accessibility. The question at the heart of this case appears to have been more one of how that may best be achieved in practice.
About the Author
Dr Russell Wilcox was called to the Bar in 2000, and before joining chambers enjoyed an illustrious career in academia. He was an associate member of McNair Chambers in Qatar, where he worked on a number of large-scale cross-jurisdictional commercial disputes and on international arbitral proceedings, and acted as disclosure counsel in Athenasios Sophocleus & Others v Secretaries of State for Foreign and Commonwealth Affairs and Defence, relating to the actions of the Colonial Administration in Cyprus during the Cyprus Emergency of 1956 to 1959. He now accepts the full range of work undertaken by the travel team at 1 Chancery Lane.
A couple of weeks ago we told you of a witness who had been criticised for attempting to give evidence whilst driving a van. This week we learnt of a Deputy District Judge who conducted a hearing from his car. He has been issued with a formal warning. We have some sympathy for the judge in question, who had been called away unexpectedly on a personal matter, and who would surely have been more attentive to the hearing than those judges known to us in the past who used to have a little nap after lunchtime, often having to be woken by the simple expedient of dropping the White Book. We’re sure the Bar Standards Board would be equally sympathetic to any barrister caught doing the same thing.