The Dekagram 9th January 2023

Articles, News | Mon 9th Jan, 2023

The Dekagram is back! After an all-too-brief Christmas holiday, the travel and cross border team has returned to keep our readers up to date on the activities of the courts and legislature in our field. And there is much to report. For the first time ever the FCDO has advised against travel for medical tourism; Dominique Smith gives us her views on the advisory, and asks whether it goes far enough (spoiler: she doesn’t think so, and not without reason). Meanwhile, the courts have considered an unusual application for an order for inspection of equipment involved in an accident, although Sarah Prager worries about the wisdom of over-reliance on the judgment. In other news, the government is consulting on whether or not to ratify the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague 2019, to us), to which the clear and obvious answer must be: yes, get on with it already! If you’d like to contribute to the consultation, the link is to be found here: Consultation on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague 2019) – GOV.UK (www.gov.uk), and we would encourage you to do so. And the CAA’s interim report on airport accessibility is out (CAA Airport Accessibility Interim report 1 April to 31 October 2022); we’ll give you more on that in a future edition, but for now the point to note is that it doesn’t look as if the issues around accessibility and air travel are going away any time soon.

Medical Tourism in Turkey: a Warning from the FCDO

Avid readers of the weekly Dekagram will know from our previous articles and Dekinars that medical tourism is ever growing in popularity. From daily Instagram posts of Love Island stars showing the world their ‘Turkey teeth’, or TikTok videos of influencers sharing the results of their rhinoplasties in Poland with their followers, medical tourism seems almost fashionable. It is not that common however to see or hear of the dire consequences that can arise when medical treatment abroad goes wrong. Not only are there risks with any surgery or treatment (irrespective of whether it is abroad), but the standard of care and facilities in a foreign jurisdiction may be very different to those in England. Sadly, individuals can, and have, paid the price of beauty with their lives.

The Foreign, Commonwealth and Development Office (FCDO) recently published advice regarding medical tourism in Turkey. The advice noted that 22 British nationals have died in Turkey since January 2019 following visits for medical tourism. As such, the FCDO advise British nationals to carry out their own research into treatment abroad and note that it is “unwise” to rely upon private companies that have a financial interest in arranging medical treatment abroad. The FCDO refers individuals to a website for a list of medical providers who are approved by the Turkish Ministry of Health.

Despite this advice, it is unlikely in and of itself to stop or slow down medical tourism abroad. There is certainly an arguable allure of cheap treatment and a holiday, compared to growing NHS waiting times. It is also of some concern that the FCDO’s advice attempts to deter individuals relying upon private companies that have a financial interest in arranging medical treatment abroad, without explaining to members of the public what exactly they should be looking for to detect whether their potential treatment provider is one of those such companies. How does a member of the public identify whether a private company has a financial interest in arranging treatment? What questions should they be asking? Are there any features on their website they should be looking for? Information of that nature would undoubtedly be helpful for those individuals seriously contemplating treatment abroad.

With the concerning number of deaths of British nationals following medical tourism in Turkey, the public must be better equipped with information about the risks of medical tourism and how best to identify rogue treatment providers. This guidance from the FCDO, whilst welcome, does not appear to go far enough.

About the Author

Ranked by the Legal 500 2021, 2022 and 2023 and by Chambers and Partners 2023 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.

Never Give Up: Oakes v British Engineering Services Limited

The recent decision of Dexter Dias KC in Oakes v British Engineering Services Limited [2022] 12 WLUK 360 may provide some solace to practitioners who find themselves making applications at what might be described as the last moment.

The facts

The Claimant engineering surveyor had been employed by the First Defendant. He was injured whilst working at the Second Defendant’s premises when a torque limiter failed and equipment collapsed. The cause of the failure was unknown. The Claimant brought a personal injury claim against the Defendants, which was listed for a split trial starting on 25^th February 2023.

In the meantime, the regulator seized some of the equipment in order to conduct a criminal investigation into the accident. In March 2022 the First Defendant employer wrote to the regulator asking for access to the equipment for inspection and testing. The regulator treated it as a freedom of information request and refused. A further request was also refused. The First Defendant issued an application for inspection of the equipment in September 2022, although it was not served on the regulator until October.

The legal framework

The power to order inspection of property is contained in CPR25.1, and in particular CPR25.1(c) and (j):

The court may grant the following interim remedies:..

(c) an order –

(i) for the detention, custody or preservation of relevant property;

(ii) for the inspection of relevant property;

(iii) for the taking of a sample of relevant property;

(iv) for the carrying out of an experiment on or with relevant property…

(j) an order under section 34 of the Supreme Court Act 1981or section 53 of the County Courts Act 1984 ⁽order in certain proceedings for disclosure of documents or inspection of property against a non-party)…

(2) In paragraph (1)(c) and (g), ‘relevant property’ means property (including land) which is the subject of a claim or as to which any question may arise on a claim…

The power is discretionary and the court is vested with a wide case management discretion. The judge held that authorities concerning late applications to amend were relevant to the case on inspection because they explained the approach where a late application threatened the trial date and provided useful guidance in a Part 25 application. Accordingly, the court had to evaluate the balance of prejudice on each side. The applicant had to show that the order sought was justified; and if an applicant was prejudiced by their own fault, then they would have to suffer the consequences (cf Quah v Goldman Sachs International [2015] EWHC 759 (Comm)).

The factors taken into account

The Defendant maintained that inspection and testing could be done without vacating the trial date, but that was inconsistent with the application notice, which applied for the trial to be vacated. It was not realistic that inspection, involving three expert witnesses, could be done by early 2023. Indeed, the Claimant’s expert was not available over the Christmas period. It was therefore inevitable that, if the application was granted, the trial date would be lost.

Furthermore, the Claimant and regulator maintained that testing would have negative utility as it would damage the equipment, which then could not be used in criminal proceedings. However, even inspection and non-destructive testing might provide probative evidence. There was therefore utility in granting the application. It was also necessary, as inspection and testing might provide evidence that was relevant to central issues at trial and not available by other routes.

The exercise of the court’s discretion

Dexter Dias KC concluded that he had to deal with cases justly and at proportionate cost. Looking at all the circumstances, the main factor against granting the application was that the trial would have to be vacated. In that case, the earliest it could be heard was November 2023, some nine months later. This issue was exacerbated by the fact that the Claimant would be unable to apply for interim payments until he had succeeded on liability, and he was already under financial strain. Even if the Claimant succeeded on liability, there would be further delay dealing with issues of quantum.

Applications should be made as soon as it was clear that it was necessary or desirable to make them, and that had not happened here; the First Defendant had not issued the application until the end of September and not served it on the regulator until the end of October. That was an unnecessary delay for which there had been no adequate explanation. Vacating the trial would also impact other court users.

On the other hand, all the experts agreed that inspection would be useful. The evidence might be determinative; it went towards the cause of the accident and who was responsible for it. The inspection and expert assessment were not likely to increase the length of the trial, although it would probably increase costs. Finally, although the claimant had issued the claim within the statutory time limit, it was not until three years after the incident, and the court had to attempt to balance the interest of the parties fairly. The prejudice to the First Defendant would outweigh the prejudice to the regulator and Claimant if the application was not granted. There was a heavy burden on the First Defendant to justify losing the trial date, but that burden had been met by the significant contribution that the evidence could provide. It was not a side matter but the question of why a torque limiter had failed, which went to the heart of the case. Although the application had been issued late, the First Defendant had initially asked the regulator, and had not been sitting on its hands. It would be unfair for it to take part in a trial that might be unjust, and draconian to shut it out from important evidence. The court therefore granted permission for inspection and non-destructive testing of the equipment, and vacated the trial date.

Comment

It is never clear to an outsider why an application of this nature is made very late in the day; and so it is in this case. Nevertheless, the decision is an indication that some judges are more concerned about getting to the justice of a claim than they are about holding trial dates, although it will readily be appreciated that the outcome could have been different had the application been heard by a different judge. It just goes to show: where there’s a crucial item of evidence, whether or not a party has failed to obtain it until shortly before the trial it may well be possible to undo any delay there has been. The author would not recommend over-reliance on the court’s leniency in such circumstances, however.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She will be appointed a KC in March 2023.