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The Dekagram 15th May 2023

Articles, News | Mon 15th May, 2023

We trust our readers enjoyed the Eurovision on Saturday every bit as much as we did; with the Deka Chambers Eurovision Sweepstake Shield up for grabs, there could hardly have been more to play for. Similarly, in a recent case Master Thornett struck out a claim in quite unusual circumstances; we consider the judgment below. We were also interested to read of an Israeli case on the operation of Article 31 of the Montreal Convention – it’s not binding, of course, but it is an interesting signpost to how the courts of other signatories to the Convention might approach a similar set of facts.

Mr Tomasz Danielewicz (A Protected Party Proceeding By His Litigation Friend Miss Justyna Kosinska) v Miss Jessica Cannon, Motor Insurers’ Bureau [2023] EWHC 948 (KB)

Under CPR 38.7(1) a Claimant who discontinues a claim needs the permission of the Court to make another claim against the same Defendant in certain circumstances. These being (a) they discontinued the claim after the Defendant filed a defence or, in a Part 8 claim, filed an acknowledgment of service or written evidence; and (b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

This case, heard by Master Thornett, considered the applicable test the Court should have in mind when considering whether to grant permission under CPR 38.7.

This claim, or more accurately, claims, had a rather protracted procedural timeline. By the time Master Thornett considered this case under CPR 38.7 the Claimant had issued two previous claims which had been discontinued and the Court was then considering the third claim issued by the Claimant arising out of the same road traffic accident.

In short, the Claimant was a pedestrian injured in a road traffic accident.

The first claim was issued initially against the First Defendant driver only. It later sought to add the purported road traffic insurer as the Second Defendant. Procedural errors on the Claimant’s part, including using an inapplicable address to purportedly serve the driver, led him to discontinue those proceedings.

There then followed a second claim. This claim was issued against three defendants, the Defendant driver, the purported road traffic insurer and the MIB. No permission under CPR 38.7 was sought at the time of issue or service of the second claim. For reasons unknown, the same inapplicable address was used to attempt service via first class post on the First Defendant. This was raised by the Second Defendant in its defence to the second claim.

There was an application to strike out the Claimant’s second claim. There followed an application by the Claimant for permission to make the claim under CPR 38.7. This application was not issued until 10th November 2021. This being approximately ten months after service, over twelve months after issue and so over eighteen months after the First Claim had been discontinued.

The Claimant’s CPR 38.7 Application never proceeded to the hearing listed for 7th January 2022, neither the Second Defendant’s strike out application. The claim was discontinued on 21st December 2021 against all three defendants.

We arrive then at the third claim issued by the Claimant. The claim was issued against the Defendant Driver and the MIB.

The Claimant did make a CPR 38.7 application for permission. An initial question considered by the Court was whether the application had been made at the correct time. It was acknowledged that Rule 38.7 is silent on how or when a Claimant should seek permission and that the notes in the White Book refer to conflicting views as to whether the Application has to be concluded before issue in order for any issued proceedings to be valid. However, the Defendants did not take the point that the Application had been made too late and therefore it was not an issue determined at this hearing.

Master Thornett moved on to consider the key issue raised by the parties as part of the CPR 38.7 application, that being the operation of CPR 38.7 and the applicable test or considerations to be applied when considering whether to grant permission.

The Claimant sought to refine the criteria for permission by relying on dicta in Western Power Distribution (South Wales) Plc v South West Water Ltd [2020] EWHC 3747 (TCC), [2020] 2 WLUK 430 as to the appropriate approach, namely that:

• the burden was on the defendant to establish why bringing the claim was “manifestly unfair”;

• the court would not lightly shut out a party from pursuing a genuine claim unless abuse of process could clearly be made out; and

• the court should approach the matter by taking a “broad merits-based” approach.

The Second Defendant disputed that CPR 38.7 amounts to a test of manifest unfairness and distinguished the facts and circumstances of Western Power. It was submitted on behalf of the Second Defendant that it was clear from other authorities, particularly from the Court of Appeal, that the ambit of discretion and consideration by the court is far wider and ultimately guided by the fundamental requirement of explanation for the previous error(s) or default as gave rise to the discontinuance.

Master Thornett concluded that the Court had to look at matters in the round and balance the various factors. He emphasised that no one factor is conclusive, but the most significant factors have to be the circumstances in which two sets of proceedings for the same cause of action were discontinued. He went on to state that explanation is key, whether as seen specifically in the context of CPR 38.7 or in the added context of Denton considerations. On the latter test, it was openly conceded by the Claimant that the breaches were serious and significant, not trivial.

He was unpersuaded by the suggestion that the Claimant theoretically could still continue to bring claims owing to limitation still running by way of the Claimant’s protected party status.

Master Thornett noted that whilst the authorities are careful to draw distinctions in analogies between the operation and considerations of CPR 38.7 to those in abuse of process Applications, it appeared that the repeated issue of claims arising from precisely the same cause of action would amount to an abuse of process in its own right.

Either way, however, the submission had little appeal in seeking the exercise of discretion in this third claim.

Similarly, he was not persuaded by the argument raised on behalf of the Claimant that the absence of evidential prejudice in a claim whereby the Claimant is acknowledged in principle to be entitled to receive certain damages is sufficient to justify the continued engagement of resources by either the court or the defendant(s).

Having regard to the resources which had already been taken up in dealing with this claim, the overriding objective and the Court’s natural disinclination to permit repeated litigation without convincing explanation and justification, the Application was dismissed, and the claim struck out.

About the Author

Lucy Lodewyke was called in 2018 and undertakes work across all of chambers’ practice areas. Prior to coming to the Bar she worked as a paralegal at Stewarts in the Personal Injury Department, and then as a paralegal to a barrister specialising in personal injury and clinical negligence work. This invaluable experience has given her an insight into the profession from another perspective, with knowledge beyond her call.

Harel Insurance Company v DHL Global Forwarding, 21650-06-19

The Tel Aviv Magistrates Court has recently had cause to grapple with Article 31 of the Montreal Convention, which reads:

1.  Receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by the other means referred to in paragraph 2 of Article 3 and paragraph 2 of Article 4.

2.  In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.

3.  Every complaint must be made in writing and given or dispatched within the times aforesaid.

4.  If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part.

The facts of the case are, it is to be hoped, unusual. The Claimant’s insured entrusted a cargo of medical equipment to the Defendant, but the equipment was damaged in transit. The Claimant compensated its insured in accordance with its obligations under the insurance contract, and brought a subrogated claim against DHL for the damage to the cargo under the Montreal Convention. The insured had understood that the cargo would be flown directly from Sweden to Israel, whereas in fact it turned out that (for reasons which remain opaque) it was taken by road from Sweden to Belgium and then by air to Israel via Norway. The damage occurred during the transportation by land and not during carriage by air.

The Defendant was not notified of the Claimant’s claim within 14 days of receipt of the cargo, and therefore offended the notification provisions of Article 31. When the claim was brought, therefore, it applied for it to be dismissed pursuant to Article 31(4).

The Claimant responded that the damage had not occurred whilst the cargo was being carried by air and the Convention therefore did not apply at all – and furthermore that DHL had fraudulently said that it would carry it by air, when it had no intention of doing so, so they should be precluded from relying on Article 31 by reference to Article 31(4).

The difficulty with the first argument was that pursuant to Article 18(4) of the Convention transportation by another means of transport is deemed to be carriage by air in these circumstances:

The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If, however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to be carriage by air, such carriage by another mode of transport is deemed to be within the period of carriage by air.

It is worth noting of course that as far as the insured was concerned, the cargo was to be transported exclusively by air, and therefore it was to be expected that any notification of damage would have to comply with Article 31; the fact that it was not so transported was something of a windfall insofar as the notification provision was concerned.

In addition, DHL argued that Article 31(4) relates to fraudulent concealment of damage and not to substitution of one mode of transport for another, appearing as it does in the article dealing with opportunity to identify damage.

The court held that the wording of Article 18 was clear; the Convention was engaged, even though part of the carriage was by land. However, it went on to reject DHL’s interpretation of Article 31.4, holding that the fraud provision was wide enough to encompass all fraud in connection with the carriage, and not just fraudulent concealment of damage. As a result, the strict time limit for notification was not applicable.  


Although the claim in this case was made by an insurer, the outcome may be regarded as a further indication that internationally courts are increasingly willing to interpret the Convention in a way which protects the interests of consumers; it will be interesting to see whether the English courts are inclined to follow suit.

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 was appointed a KC in March 2023.

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