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The Dekagram: 26th June 2023

Articles, News | Mon 26th Jun, 2023

This week the team’s been glued to the telly, and in particular SupremeCourtTV, following the progress of Griffiths v TUI as it wends towards its conclusion. Truth be told, we’ve been mildly surprised by the lack of fanfare around the hearing, given that the decision will affect all cases involving expert evidence, whether arising in a travel law context or not. This set us to musing on all the travel and cross border cases which have developed the law and procedure of England and Wales – and then another one came along. The decision in Abbott and others will be of importance to all practitioners working with groups of litigants; Max Melsa gives us the lowdown. Meanwhile, the corporate lawyers, in Blacklion, may have a thing or two to tell us about pleading points and – more generally – what the civil justice system is for: “Litigation’s overriding object is to do justice between parties, and form should not override substance.” Words which ought to be embossed on the Bench of every courtroom in the land.

All Aboard the Omnibus

The appeal in Abbott and others v Ministry of Defence [2023] EWHC 1475 (KB) concerned the claims of about 3,500 Claimants (for context, the average attendance at Fleetwood Town or Colchester United home games last season) and whether each of those Claimants required their own Claim Forms to be issued.

The Claimants were military personal who claim to have suffered noise induced hearing loss. There were key traits within each claim that were common between them. The parties had agreed that there should be trials for lead cases and common issues by the time the case came to Master Davison in July 2022. At that CMC however, the Master questioned whether separate Claim Forms needed to be issued for each Claimant, and in finding that this was the case, directed for each of the Claimants to issue their own Claim Forms within 6 months or be struck out.

In the appeal, the Court considered the wording of CPR 7.3:

A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.

In granting the appeal, three determinations were made:

  1. It was not disputed by the parties that being “disposed of” means the claims finally determined, not just case managed [51];
  2. The test of convenience is only that common disposal be convenient; it does not require common disposal to be the only possible or reasonable way of determining the set of claims in question, or that separate disposal would be inconvenient [52]; and
  3. “Convenient” is an ordinary word which means possible and helpful or useful, nothing more [53].

The Master’s error was to equate ‘the same proceedings’ with ‘a single trial’ which is not what CPR 7.3 requires [55].

In concluding, Baker J set out at [71]:

“The governing principle, therefore, is not whether there is a large number of claimants and / or causes of action.  Rather, it is the convenience of disposing of the issues arising between the parties in a single set of proceedings. The degree of commonality between the causes of action, including as part of that the significance for each individual claim of any common issues of fact or law, will generally be the most important factor in determining whether it would, or would not, be convenient to dispose of them all in a single set of proceedings.”

The reality of what was set in motion from the Master’s judgment was the Claimants’ firm being required, within 6 months, to ask each Claimant to provide a Help with Fees Form if appropriate; submit any returned forms to the Fees Office; file a signed Claim Form; and then pay any issue fee required. It was as if Fleetwood Town or Colchester United had to provide season tickets to each person attending a home game, but also pay for them to attend.

Significant issues arose with Claimants being charged incorrect issue fees, the difference needing to be covered by the Claimants’ firm. The Court Office was also understandably overwhelmed.

The appeal judgment is therefore of great assistance to any firm dealing with large numbers of Claimants, reduces pressure upon the Court system, and is a victory for access to justice.

About the Author

Prior to being called to the Bar in 2015, Max Melsa worked with Gerard McDermott KC on all aspects of high-value cases arising from catastrophic personal injury, in particular involving travel and cross border claims of significant value and complexity. He now maintains a mixed practice of civil and family work, alongside representing interested parties at inquests.

Thank you to Jatinder Paul of Irwin Mitchell for taking time out of the hearing in the Supreme Court in Griffiths v TUI to bring this case to our attention.

Corporate law – Director Procuring Breach of Contract: Digest of a Judgment Handed Down on 15th June 2023 

Blacklion Law LLP v Amira Nature Foods Ltd [2023] EWCA Civ 663 

Blacklion was engaged by Amira on a retainer for the purpose of the issue of high-yield bonds in the company. The trial judge found as a fact that more than 90% of the work required under the retainer had been performed by Blacklion. The retainer encompassed a fixed fee for the work of £300,000 payable either in cash or transfer of shares, subject to completion of the matter by 31st May 2017.  

In the event, Amira elected to pay by transfer of shares, but those shares were unsaleable without an accompanying US legal opinion certifying the transfer, and were therefore effectively worthless. It is hard to understand how Amira thought the failure to remunerate Blacklion at all for this work was a reasonable stance to take, effectively evading any payment for the significant services rendered. Blacklion sued both Amira and its chairman, director, majority shareholder and thus controlling mind. 

At first instance the judge concluded that “business common sense” meant that the construction of the retainer advocated by Blacklion, that payment of their fixed fee was not conditional on completion of the project by the stipulated 31st May 2017 deadline, was correct. The Court of Appeal agreed. The ‘completion date’ set the parameters for the work that was covered by the fixed fee – work done after the date would be charged for in addition. 

On the issue of the second defendant procuring a breach of contract, the trial judge was satisfied that he (D2) knew that shares issued to Blacklion could not be sold without certification by the first defendant Amira. He had not authorised the company’s US lawyer to produce the necessary opinion certifying the shares. Thus, is not obtaining the requisite opinion and concurrently refusing to pay the fixed fee, D2 had caused D1 to breach its contract with Blacklion. 

Amongst its grounds of appeal, Amira argued that the judge was wrong in holding that there was an implied term of the retainer that Amira was obliged to do all such things as were reasonably necessary to enable the sale of the Shares issued to Blacklion on the open market and that Amira was in breach of such an implied term or any term. Furthermore the judge was wrong to hold that D2 was liable in tort for procuring a breach of the Retainer. 

It had been the trial judge who implied into the retainer – as a matter of business efficacy – a term that Amira would do all such things as were reasonably necessary to enable sale of the shares on the open market. This had not been pleaded nor was it advanced as a line of argument by Blacklion at trial 

Lady Justice Asplin considered that failure to plead the point was not fatal where no prejudice arose. Litigation’s overriding object is to do justice between parties, and form should not override substance. Here, the issue of the manner in which the restriction on the shares could be lifted was raised in the Defence and joined by the Claimant in the Reply. Thus, the parties were well of aware of the issue as to whose obligation it was to provide the relevant opinion in order to lift the restriction on the shares. Moreover, no objection was taken before or at trial to the failure to plead the implied term. There was no suggestion different evidence would have been called at trial, nor that the case would have been conducted differently.  

On the question of D2’s liability, his counsel submitted that the necessary ingredients of the tort of inducing breach of contract were not pleaded. There was no reference to the leading authority on director’s liability in this regard, nor to the requirements identified in that authority, and the judge therefore failed to make findings on these issues.  

Lady Justice Asplin found that the court has a discretion in relation to whether to allow a new point to be taken on appeal, even if the point is a pure point of law. It is also clear that the court will allow a new point to be taken where it goes to the jurisdiction of the court. However, none of the authorities suggest that it follows inexorably from the failure to plead an element of a claim and the consequent failure to address that element in the judgment, that the new point must be allowed to be taken and the judgment set aside. “In the end, we must consider the overall balance of justice. The question of whether it is just to admit the new point depends upon the analysis of all the relevant factors.” 

About the Author

Giles Bedloe was called in 2001 and now specialises in fraud and financial crime, commercial dispute resolution and business regulation. He is ranked in the Legal 500 for Business & Regulatory Crime and for Fraud including money laundering and asset forfeiture. He is appointed to the CPS Specialist Fraud Panel and the Attorney General’s Panel of Specialist Regulatory Counsel. As part of his commercial defence practice, Giles regularly advises and represents individuals before the professional and disciplinary tribunals, and businesses before their regulators. Giles has particular expertise in matters involving the pensions and financial services ombudsmen.

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