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The Weekly Roundup: The Alliterative Edition

Articles | Mon 26th Sep, 2022

As always, the team has spent this week pondering matters of international importance. We were interested to see that the Full Federal Court of Australia has allowed the cruise operator’s appeal in the Ruby Princess litigation, determining that a contractual clause waiving the right to bring a class action was not unfair, where the Claimant was a US citizen and subject to US law. The issue remains open, however, in respect of Australian Claimants. All rather unsatisfactory.

Meanwhile in Germany, the Court of Appeal Frankfurt am Main rejected a claim for general damages following the failure of an aircraft’s air conditioning system whilst passengers awaited take-off, on the basis that although the air on board had been so hot that it was difficult to breathe, no bodily injury had been sustained. It is tentatively suggested that this must be right in law, although it does seem a little on the harsh side as far as the Claimants in that case, and their two year old offspring, are concerned. Closer to home, we have had an interesting decision on the interplay between CPR Part 39 and appeals; and the Advocate General to the CJEU has given her opinion on two Covid refund claims (we had almost forgotten that The Great Refund Saga remained ongoing).

Appealing Absences

In Mabrouk v Murray [2022] EWCA Civ 960, the Court of Appeal gave guidance on CPR 39.3 and the principles that apply in adjudicating applications made under CPR 39.3(3) and (5). For ease of reference, CPR 39.3 provides:

“(1) The court may proceed with a trial in the absence of a party but—

(a) if no party attends the trial, it may strike out the whole of the proceedings;

b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and

(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).

(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant—

(a) acted promptly when he found out that the court had exercised its power to strike out(GL) or to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) has a reasonable prospect of success at the trial.”

Factual background

The underlying claim arose out of the murder of WPC Yvonne Fletcher outside the Libyan Embassy in St James Square on 17th April 1984. Mr Murray (“C”) was a friend and colleague of WPC Fletcher and was working with her on that day. As a result of the events which took place, C suffered from PTSD and a recurrent major depressive order. Mr Mabrouk (“D”) was a senior pro-Gaddafi official within the Libyan Embassy in 1984. He was under arrest at the time of the incident, but there was compelling evidence that he had been involved in the events. C issued proceedings against D on 16th November 2018 for tort and/or battery. The claim form made clear that the action was brought for vindicatory purposes.

In the interlocutory phase, D made numerous unsuccessful applications to strike out C’s claim. D’s solicitors eventually came off the record. At a directions hearing, the strike out application was ordered to stand as D’s defence. In the run up to trial, D was contacted by C’s representatives about the trial date but no response was received. The trial took place in October 2021 ([2021] EWHC 3461 (QB)) and proceeded in D’s absence. The Judge found against D on the basis that the assault and battery was part of a coordinated plan to fire on the protesters and that D had taken part in that plan: [14].

The order allowing C’s claim was dated 22nd November 2021. The time for appeal expired on 13th December 2021. D was aware of the judgment but an application for permission to appeal was not made until 30th March 2022. Considering the voluminous material advanced by both parties, the application for permission to appeal was ‘called in’ for an oral hearing. One week prior to that hearing, the Court of Appeal also brought to counsels’ attention CPR 39.3, which was, in the court’s view, “the obvious starting point for this application”.

Judgment

The Court of Appeal firstly considered the guidance in Bank of Scotland v Pereira [2011] EWCA Civ 241 as to the interplay between the appeal process and CPR 39.3. In that case, Lord Neuberger held that where a defendant was seeking a new trial on the ground that she did not attend the trial, then, even though there may be other possible grounds of appeal, the starting point would be application under CPR 39.3: see [37]. That course should be taken even where there are other grounds for appealing the decision: ibid. If a defendant seeks to appeal without making a CPR 39.3 application, in circumstances where such an application could have been made, the appellate court can still consider the appeal, but that would normally require unusual facts: ibid.  With that guidance in mind, the Court proceeded on the basis that the application for permission to appeal was an application under CPR 39.3.

CPR 39.3(5)(a): did D act promptly?

CPR 39.3(5)(a) required D to show that he acted promptly in making the application after finding out that the court had entered judgment against him. At [24] the Court noted: “Although they are not in any way prescriptive, the authorities suggest that an acceptable delay will usually be measured in weeks after the relevant judgment or order, rather than months. Thus an application to set aside made 6 weeks after trial was deemed to have been made promptly in a complex case with a good deal of documentation (Watson v Bluemoor Properties Limited [2002] EWCA Civ 1875), but in the more straightforward case of Regency Rolls, a 4 week delay meant that the application was found not to have been made promptly.”

The Court considered that D had not acted with all reasonable celerity. Firstly, whereas D had not said precisely when he found out about the judgment, the evidence was that he first found out following media coverage of the decision. The Court felt able to infer that the media coverage would have been at the time of, or very shortly after, the handing down of the judgment on 22nd November 2021. The application for permission was not made for another four months: [26]. Secondly, D had not provided any chronology to explain what occurred or what steps were taken during that four-month period: [27]. There was a suggestion that there was limited internet and electricity in Libya, but the Court attributed that little weight: [28]. Further, D was aware that proceedings were being brought against him since 2018, so it was not a case where an individual only discovers they have been sued when they see the judgment: [29]. As for the suggestion that the delay was attributable to impecuniosity and the inability to pay for legal representation, that was also rejected: “the inability to pay for legal representation cannot be regarded as providing a good reason for delay” (R (Hysaj) v Home Secretary) [2014] EWCA Civ 1633).

CPR 39.3(5)(b): did D have a good reason for not attending the trial?

As for the meaning of “good reason”, the Court noted at [33]:

“Paragraph 39.3.7.2 of Civil Procedure 2022 states that the phrase “good reason” is a sufficiently clear expression of the standard of acceptability to be met. We agree: no gloss is required. The mere assertion that a party was unaware of the hearing date is unlikely to be sufficient to constitute a good reason. The general rule is that the court must be satisfied that the inability of a litigant to be present is genuine, and the onus is on the party who did not attend to prove that: see Teinaz v Wandsworth LBC [2002] I.C.R. 1471.”

The Court was not satisfied that D was genuinely unable to participate in the trial. D contended that he could not participate in the trial because he had been excluded from the UK: [36]. However, the Court noted that D’s “article 6 rights were not infringed because there other ways in which he could properly participate in the civil trial” – namely, by way of videolink: [37]. At [40]:

“Mr Mabrouk did not have a right to attend in person (because this was a civil trial); he did not have the ability to attend in person (because he had been excluded from the UK); but he did have the right and the ability to attend by way of videolink. It was Mr Mabrouk’s choice not to take up that option.”

The Court concluded that the second limb of the test at CPR 39.3(5)(b) had not been made out.

Rule 39.3(5)(c): does D have a reasonable prospect of success at trial?

The Court gave guidance at [48] on what they would expect a litigant to show under this limb: “Mr Mabrouk is seeking to set aside a final judgment, reached after a trial, in order to have a retrial on precisely the same issues. In such circumstances, we would expect a litigant in Mr Mabrouk’s position to have worked through the judge’s judgment, so as to explain in proper detail how and why a particular finding is wrong. The court will require something more than a general assertion of error before it considers opening up a detailed judgment and ordering a retrial; in this context, “a reasonable prospect of success” must denote a real argument, usually by reference to material that was not available to the judge, that one or more of the judge’s key findings was erroneous.”

D failed to do that. There was no detailed defence in the litigation despite the acknowledgement of service and the presence of his solicitors in its early months: [50]. The defence (as contained in a document entitled “Application to strike out the claim”) was deemed to contain bare denials and assertions: [51]. In short, D “has never demonstrated how or why he has a defence to the claim, and has not begun to grapple with the detailed findings and careful analysis in the judgment which he now wishes to overturn”: [52].

Conclusion

It followed that D failed to make out any, let alone all three, of the elements of the test in CPR 39.3(5). Similarly, the Court dismissed D’s grounds of appeal: [58] – [72]. The decision is a helpful reminder of the principles that apply under CPR 39.3 and how such applications should (and should not) be prepared.

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.

Regarding Refunds

Regular readers of the Roundup will know that refunds in respect of package holidays booked during the COVID-19 pandemic have been a hot topic for some time. Recently, Advocate General Medina has given opinions in C-396/21 FTI Touristik (Voyage à forfeit aux Îles Canaries) and C-407/21 UFC, which are noteworthy for all practitioners dealing with claims in this area.

In the FTI Touristik case, the applicants had booked a 14-day holiday from Germany to the Canary Islands from 13th March 2020 to 27th March 2020. As a result of the pandemic, their trip came to an end after only seven days. The applicants returned to Germany, claiming a price reduction of 70% of the pro rata travel price for seven days. The Regional Court of Munich proceeded to ask the CJEU whether Article 14(1) of Directive 2015/2302 on package travel and linked travel arrangements entitled a traveller to a price reduction for lack of conformity with the package travel contract in circumstances where this was due to restrictions imposed to prevent the spread of an infectious disease worldwide.

In the UFC case, the applicants were French associations defending consumer interests. They contested the legality of Order No 2020-315, which was an Order adopted by the French Government which governed the conditions for termination of holiday contracts in the event of unavoidable and extraordinary circumstances or force majeure. The Order allowed travel organisers to provide a voucher instead of a refund, thus deviating from the Directive. It was argued by the French Council of State that the act adopted was designed to safeguard the solvency of service providers, as many travel and holiday operators in France were in serious difficulty when the pandemic struck and were not able to provide an immediate refund.

Advocate General Medina subsequently produced an opinion in both cases. When looking at the FTI Touristik case, she considered that the organiser was not exempt from their obligation to provide for an appropriate reduction in the price of the package. She considered that the amount of the price reduction must be appropriate, taking into account the circumstances of the case. She emphasised that the objective of the Directive was to ensure a high level of consumer protection. Although the restrictions imposed in response to the pandemic should be regarded as force majeure, unavoidable and extraordinary circumstances did not exempt an organiser from the obligation to grant a reduction.

In respect of the UFC case, she considered that a refund of payments made could not be understood as entitling an organiser to provide a deferred form of payment, such as a voucher. As the provision in the directive only covered reimbursement in cash, any alternative (including a voucher) had to be excluded. That did not, however, prevent a traveller from opting to receive a voucher after the event giving rise to a refund occurred. Notwithstanding that, Advocate General Medina considered that if a member state temporarily faced difficulties in applying a provision in a directive, it should exceptionally be entitled to plead force majeure. She opined that the pandemic may justify a temporary regulatory derogation from an organiser’s obligation to refund a traveller the full amount of any payment in 14 days, but such a derogation was justified only for the period necessary in order for the member state to resolve the difficulties which prevented it from applying the provision. It was for that member state to prove that a derogation was necessary and to verify that there was no alternative. She considered that the Order adopted by the French Government exceeded what was necessary and proportionate to address the difficulties encountered by tour operators.

The Advocate General’s opinion is of course not binding on the CJEU. It will be interesting to see whether the Court follows the Advocate General’s approach on this issue.

About the author

Ranked by the Legal 500 2021 and 2022 as a Rising Star, 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.

…And Finally…

With so many of our colleagues continuing to work from home even now that things have returned to (relatively) normal following the pandemic, we were intrigued to see that Denmark has grasped the nettle and legislated to account for the practice. Where employees work from home using a computer screen for two days or more per week, their employers must ensure that their work station is properly configured with appropriate work equipment, including adjustable furniture and lighting. In the case of work related accidents, where there is a ‘necessary and natural connection’ between the work and the incident, the employee may recover compensation under the Danish Workers’ Compensation Act 2020. In recent decisions the Social Appeals Board has found against a worker who had gone for a walk in the garden to have a think about work, but in favour of one who had tripped whilst moving from a work station to the toilet. We wonder how these sets of circumstances would play out in the courts of England and Wales; we’re sure it’s only a matter of time before we find out.

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