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Articles | Tue 30th Aug, 2022
This week the team has been thinking about some of the more esoteric questions raised by cross border work; whether the standard of proof is a procedural or substantive matter, and whether orders for provisional damages are capable of outliving the Claimants to whose claims they related. Admittedly these are not questions which arise every day – but when they do occur, it’s as well to be prepared. And the decision on provisional damages in particular raises some intriguing questions around whether an application for damages of that nature is in itself made procedurally or substantively.
Standard of proof – Procedural or Substantive?
Swiss law provides for strict liability for accidents caused by vehicles in operation, unless the defendant can make out a defence. If the case were litigated in Switzerland, the court would require “strict proof” – a significantly higher standard than the balance of probabilities – for the defence to be made out. So, the defendant would be liable unless it proved, to the standard of “strict proof”, that it had a defence.
But what happens were a Swiss law case is litigated in England? If the court only required the defendant to prove the defence on the balance of probabilities, would this not (in effect) be widening what Swiss law provides to be a narrow defence?
This is just what arose in Bristow v Vaudoise Generale, which came to trial last week.
The judge considered the Rome II regulation, noting that it does not apply to evidence and procedure (Article 1(3)), with the exclusion that presumptions of law and the burden of proof are governed by the applicable law, rather than the law of the forum (Article 22(1)). This did not specifically extend to the standard of proof. Furthermore, in Marshall v MIB  EWHC 3421 (QB) Dingemans J (as he then was) held that the standard of proof was a matter for the forum, for “very good reasons”, given that the manner in which matters are proved may be very different in different jurisdictions. The judge agreed with the reasoning in Marshall, which was in any event binding in the County Court. Whilst the judge accepted this might well lead to a different result if the case were litigated in England rather than Switzerland, the judge observed that courts in England applying foreign law are not mandated to reach the same result as the foreign court would and it was inevitable that there might be differences.
However, there was an argument that Swiss substantive law provided for a limited defence requiring a high standard of proof to be made out. The judge considered this question in light of the specific provisions of Swiss law concerned. The evidence was that the standard of proof was a matter of general Swiss law, rather than a specific requirement set out in the relevant legislation for the defence to be made out. As such, the judge held it was a matter of procedure and that the court should apply the English standard. However, if the standard of proof had been a specific part of the defence, then the court may well have applied the Swiss standard of proof as a matter of substantive law.
This case suggests that whilst, in general, the standard of proof will be a matter of procedure for the law of the forum, there may be cases where the standard of proof is a matter of substantive law. So watch this space…!
Postscript: the judge found – on the balance of probabilities – that the defence was not made out, so the claim was successful.
Andrew Spencer, instructed by Mike Hagan of Fletchers solicitors, acted for the successful claimant.
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.
Life after Death: Provisional Damages Orders Live On after the Claimant’s Death
In Power v Bernard Hastie & Company Ltd & Ors  EWHC 1927 (QB) the court confirmed that the entitlement to claim further damages under a provisional damages order (“PDO”) passes to the claimant’s estate on their death, and an application may be made by the executor. It rejected arguments advanced by the respondents that the right to make an application was limited to the injured person, either by the statutory framework, or by the wording of the PDO.
Mr Hammacott (deceased) had been employed by each of the defendants. Each exposed him to asbestos and asbestos dust during his employment, and he later developed asymptomatic pleural plaques and early asbestosis. He brought a claim against the defendants, and they admitted liability. Mr Hammacott sought an award of provisional damages under Order 37 Rule 10 of the Rules of the Supreme Court (“RSC”). On 19th October 1992, the court ordered the defendants to pay damages of £5,000 with interest of £233 on the assumption that Mr Hammacott would not (as a result of the acts and omissions giving rise to his claim) develop certain identified conditions. Those included a serious deterioration of his asbestosis or asbestos related benign pleural effusion or asbestos related pleural thickening, in each case resulting in his inability to continue in any form of employment.
The order included the following paragraphs:
“3. The Plaintiff do have leave to apply (without time limit) for further damages pursuant to Order 37 Rule 10 if he does develop the aforesaid conditions or diseases or any of them.
4. The documents referred to in the schedule to this Judgment shall be produced to the Court by the Plaintiff’s solicitors so that those documents maybe preserved as material for any further assessment and the said documents will comprise the case file.”
The documents identified in the schedule to the order included an agreed statement of facts. That statement (which forms part of the same document as the order itself) included the following:
“3. It is agreed between the parties that the Plaintiff will be at liberty to apply for further damages pursuant to Order 37 Rule 10 of the Rules of the Supreme Court in the event of him developing [the conditions that are specified in the order].
4. It is also agreed between the parties that the Plaintiff can apply for further damages at any time during his life.”
Mr Hammacott died in October 2017. The executor of Mr Hammacott’s estate, his nephew, said that Mr Hammacott died from asbestosis and/or disabling asbestos related pleural effusions and/or disabling asbestos related diffuse pleural thickening. He applied for an order to be substituted as the claimant, in his capacity as executor of the estate. It was common ground between the parties that it was the CPR that now applied to the claim, not the RSC.
The court granted the application, and substituted the applicant as the claimant so that he could pursue an application for further damages under the PDO. In reaching that decision, it held that:
The statutory framework did not limit the right to claim further damages to the injured person.
When judgment was entered, the original cause of action was extinguished. The provision to apply for further damages gave rise to a new cause of action which allowed the injured person to make an application. There was nothing in the statutory framework that prevented an application being made by someone who had validly acquired that right.
The wording of the Order did not limit the right to apply to the injured person by stating “the Plaintiff” may apply.
The court rejected that this meant that the application had to be made personally, and found that the executor could also make such an application. It also rejected that the statement of facts, which referred to an application being brought within Mr Hammcott’s lifetime, meant that the right was meant to be Mr Hammcott’s personally.
There was no time limit to bring an application that expired on Mr Hammacott’s death.
The court also rejected that the specification in the statement of facts that the parties had agreed the claimant could apply for further damages at any time during his life imposed a time limit. The wording of the order specified that an application could be made “without time limit”, and the court did not consider that the statement of facts enabled it to read a time limit when the order specifically stated that there was no limitation in time.
Even if there had been a time limit, the court would have had the power to grant a retrospective extension.
The court held that there was nothing in the CPR or the order itself which prevented the court from making an extension of time, and from doing so retrospectively.
The applicant had acquired the right to apply for further damages.
The parties agreed the only way in which the applicant might have acquired the right to pursue an application for further damages was by operation of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934. Once judgment was given for provisional damages, Mr Hammacott had a continuing residual right to seek further damages in accordance with the PDO and rules of court, which itself amounted to a continuing cause of action. This was a right that was vested in Mr Hammacott which therefore transferred to the applicant by operation of section 1 of the 1934 Act.
The applicant should be substituted.
Having found the right was not personal to Mr Hammacott, and that there had been no expiration of a time limit, the court held that it was necessary to substitute Mr Hammacott for the applicant, as there were matters that remained in dispute in the proceedings – the applicant wished to apply for further damages.
The court made it clear that a new cause of action arises under a PDO, and the right to make an application passes to their estate upon their death. It also made it clear that any restrictions or limitation on that right will need to be stated expressly in the body of the order.
About the Author
Kerry Nicholson takes instructions across all of chambers’ core areas. Prior to joining 1CL Kerry worked for the Government Legal Department working across a variety of departments in both litigation and advisory roles. She is now enjoys working within the team on travel related and other claims.
Now that we’re all back from our hols (even if only temporarily, before jetting off to the PEOPIL conference in Copenhagen in a couple of weeks’ time), we need something to cheer us up. And happily we have just the thing! This Thursday Sarah Prager and Tom Yarrow will be discussing breach of contract claims in a holiday law context. Register here to avoid disappointment: 1CL Webinar: Contractual Liability in Holiday Claims – 1 Chancery Lane.
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