The Dekagram: 12th June 2023

We were interested to see this week the results of a survey undertaken by the Chartered Trading Standards Institute, which found that the vast majority of the general public doesn’t know what a linked travel arrangement is or does – and 18% of them thought that they gained greater protection from booking an LTA than they would from booking a package. Even after they were given the definition of an LTA, just over 73% of respondents said that they still found the difference between that and a package holiday ‘a bit confusing’, or that they ‘didn’t understand it at all’. We sympathise; LTA and package organisers also expressed confusion about the status of the products they’re selling. The CTSI wants the government to act to simplify the legal framework relating to LTAs and packages and to the provision of information to consumers, and we would certainly support the former, given that from their inception LTAs have been nothing but trouble for consumers, organisers and lawyers alike. We would, though, point to another result of the survey; consumers don’t actually read organisers’ terms and conditions, which they say is because “too much information is provided and it puts consumers off; they are too complicated; consumers don’t have time; all terms and conditions are more or less the same; and finally that consumers have been on plenty of holidays without needing to read them”. Might it be time to cut back on the amount of information provided, or at least to simplify it? And if so, can LTAs survive at all, given the amount of information required to understand them properly?

Lawyers and Limitation

Murithi & Ors v AVH Legal LLP (t/a Tandem Law) & Ors [2023] EWHC 1245 (KB)^[1] is the latest round of litigation relating to the Kenyan Emergency of the 1950s; but is of greater interest to lawyers in respect of legal representatives’ duties, s.33 of the Limitation Act 1980, and the role of witness statement evidence.

Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB)^[2] was a claim in tort brought by some 40,000 Kenyan citizens against the FCO (as it then was) relating to alleged human rights abuses by the UK’s government of the then colony of Kenya in the lead up to independence.

Perhaps unsurprisingly, given that this was litigation in the 2010s relating to events in the 1950s, limitation was engaged and Kimathi was determined following, allegedly, the longest application under s.33 of the Limitation Act 1980 (i.e. for an order disapplying the applicable limitation period) in legal history. The application was dismissed and the whole of the claim failed.

Dissatisfied, a number of the claimants in the Kimathi action sued their former legal representatives, including both solicitors and counsel. In summary, they contended that:

1. Witness statements on their behalf had been prepared which gave inadequate explanation for the length of the delay in bringing the claims and the reasons for that delay.
2. The witness statements had failed to adequately set out the degree of promptness with which the Claimants had acted upon identifying the FCO as a potential defendant and/or seeking legal advice.
3. The witness statements had failed to make a number of submissions of law, to make assertions as to the strength of the Claimants’ case, or to set out factual matters from sources other than the Claimant’s knowledge, such as the conduct of the FCO after the cause of action arose or development of recent historical scholarship.

The lawyer-Defendants sought, and were granted, reverse summary judgment in respect of all of those claims. In fact, the court had relatively little difficulty in disposing of most of the allegations.

The third group of allegations were simply wrong. This was not material which could be included in a witness statement under CPR 32.4 and, had it been, the Claimants would have likely faced much of that evidence being struck out, or the witness statements not being admitted, in the manner that occurred in Cumbria Zoo Company Ltd v The Zoo Investment Company Ltd [2022] EWHC 3379 (Ch)^[3].

The second group of allegations, while highly material, were adequately dealt with in the documents supporting the claim and there had been no breach.

The first allegation – that there was no adequate evidence explaining the degree of delay (apparently in the order of 56 years) – was, however, forceful. The court accepted that there was no such evidence and that this was clearly required. However:

1. There remained no evidence adequately explaining the delay at the date of the summary judgment hearing. On a summary judgment application, a court can look “[116] not only the evidence actually placed before it, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital National Health Service Trust v Hammond & Ors [2001] EWCA Civ 550^[4]”, yet “[131] the Claimants do not even plead… what they say could have been said by the Claimants…if only they had been asked. On the pleaded case, there is… no averment at all as to precisely what could or would have been adduced, or what will be adduced in the present proceedings, on the issue”. The conclusion, understandably, was that no such evidence was realistically obtainable (and so there could have been no breach, or if there was, no causation of loss).
2. Even if such evidence had been given, it would have made no difference to the application; as the court regarded the application in Kimathi as essentially bound to fail – “[141] In essence, it was the Judge’s view that whatever the reasons for the delay, its effect on the FCO’s ability to defend itself was so profound that no fair trial was possible and that comfortably outweighed the prejudice to the Test Claimants in the Kimathi litigation”.
3. The possibility of a fair trial was not necessarily determinative of a s.33 application, but if a fair trial was not obtainable, it was very unlikely that the application would succeed- Ellam v Ellam [2015] EWCA Civ 287^[5] cited.
4. What is meant by a “fair trial” in that context? “[463] the strong probability is that the Defendant would have been in a very substantially better position to defend the core allegations well into the mid-1960s. As time has passed, so the ability to defend has diminished, such that it is now essentially impossible for the Defendant to have any proper opportunity to find documentary or witness evidence with real relevance to the core allegations.”

Quite a diverse range of good practice points arise:

1. A reasonable explanation for any delay is likely to be crucial to an application under s.33 of the Limitation Act 1980. In the absence of good explanation, that application will likely fail.
2. The availability of a fair trial is a necessary but not sufficient requirement for a s.33 of the Limitation Act 1980 application; where a “fair trial” really refers to the ability of a litigant to adequately advance its own case and the effect the passage of time has had on the same.
3. On a summary judgment application, while a court will not expect all of the evidence to be adequately presented, it will want at least an indication of the evidence the litigant is likely to be able to obtain.
4. A witness statement is not the correct forum for advancing legal argument or setting out matters beyond the knowledge of the witness.

[1] https://www.bailii.org/ew/cases/EWHC/KB/2023/1245.html

[2] https://www.bailii.org/ew/cases/EWHC/QB/2018/2066.html

[3] https://www.bailii.org/ew/cases/EWHC/Ch/2022/3379.html

[4] https://www.bailii.org/ew/cases/EWCA/Civ/2001/550.html

[5] https://www.bailii.org/ew/cases/EWCA/Civ/2015/287.html

About the Author
Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus. 

Court Errors and Consequences

When dealing with litigation, it is not entirely unusual for there to be some issues with the cogs in the court system. Throughout our years of practice, we have all witnessed some mishap somewhere along the line, where an error at the court’s end has impacted one of our cases. The Court of Appeal’s decision in Walton v Pickerings Solicitors (1) F Brophy (2) [2023] EWCA Civ 602 (CA) is particularly interesting, as the Court grappled with a series of unfortunate events, arising from the court office losing a claim form.

Factual background

The Claimant, Mr Walton, wished to issue a claim form. He was acting as a litigant in person, with some occasional assistance from counsel. He attended the fees office at the Royal Courts of Justice on 20^th July 2020 with five copies of the claim form and paid a £10,000 issue fee. One copy of the claim form was retained by the person he dealt with, who said it would be passed to the relevant office to be issued that day. The Claimant wished to serve the claim form himself, and on that basis, the remaining four copies were returned to him with one form endorsed with a receipt for the £10,000, timed 1.28pm on 20^th July 2020. The Claimant subsequently emailed the Defendants notifying them of the fact that he had issued a claim and that it would be served once counsel had drafted the Particulars of Claim.

The Particulars were settled by 13^th November 2020. However, the Claimant had not received an issued claim form from the court. He served the Defendants with an unsealed copy of the claim form that same month. A sealed claim form was requested by one of the Defendants, who relayed to the Claimant that the court said they had no record of the claim. The Claimant attended the RCJ on 25^th November 2020 and was also told there was no record of the claim.

On 26^th November 2020, the Claimant spoke to a manager at the court, Mr Musa, and sent him a copy of the claim form, the receipt for the issue fee, and the Particulars of Claim. Mr Musa informed the Claimant on 30^th November 2020 that he had used the wrong Form N1 and that he would email him the correct form to return to the office. The Claimant completed this and returned it that same day at 5.30pm. A sealed claim form was then received on 7^th December 2020. The date of the seal was 20^th July 2020. The following day, when served with hard copies of the sealed claim form, both Defendants objected that service was out of time.

On 17^th December 2020, the Claimant brought an application under CPR r3.10 to extend time for service of the claim form. Cross-applications were made by the Defendants, who sought to have the proceedings dismissed.

The applications came before the Deputy Master on 28^th June 2021. He treated the Claimant’s application as an application under CPR r7.6 to extend time or service (rather than CPR r3.10) and found that the preconditions for the exercise of the powers in the rule were not satisfied in this case, leading to the dismissal of the application. The Deputy Master considered that he had no discretion in any event, and even if he had, he would not have exercised it in the Claimant’s favour.

The Claimant appealed the order and the appeal came before the Deputy Judge. Contrary to the decision of the Deputy Master, he held that the Claimant did meet the precondition in CPR r7.6(b) as this only required him to take all reasonable steps to comply with r7.5 once the sealed claim form was in his possession, which he had done. Despite that, he upheld the decision that if there was a discretion it should be exercised against granting an extension of time. An application by the Claimant under CPR r6.15 was also rejected.

The matter came before the Court of Appeal, who considered the first ground of appeal raised by the Claimant, namely that the court had no power to backdate the date of issue of the claim form. Nugee J, delivering the judgment, considered that there was no power to seal the claim form with a date other than the date on which it is in fact sealed. The court accepted that the very purpose of the seal was to indicate that a claim form had been issued by the court. Until the claim form was marked with a seal, the document had not been issued and the proceedings had not been started. The seal in this case could only have been placed on the claim form between 30^th November 2020 and 7^th December 2020, thus proceedings could not have been started on 20^th July 2020.

Nugee LJ considered that if there was no such power to backdate the date of issue, it did not matter why the court did it or whether this was a result of a request from the Claimant or not. The question whether the court did have such a power was a pure question of the interpretation of the rules. Consequently, the appeal was allowed.

Comment

Prior to this judgment being delivered, the decisions in the lower courts appeared harsh, with an emphasis being placed on the fact that the Claimant left service until the last minute and that he failed to take steps to obtain a sealed claim form within the four-month period. However, the Court of Appeal’s judgment provides clarity for all practitioners, and sets out a reasoned, detailed analysis of the service rules and the interplay of those rules with other provisions in the CPR, providing a welcome decision.

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.