The Dekagram: 13th November 2023

Articles, News

13/11/2023

We woke to the news that the Icelandic authorities have warned of an imminent volcanic eruption, predicted to emanate from the Fagradalsfjall volcano, which has emitted around a thousand tremors since midnight. But those of us who remember the last European ash cloud  have no fear; if you can get to grips with pronouncing Eyjafjallajokull, as we did in 2010, you can handle anything Iceland can throw at you. Will we soon be dusting off the CJEU authorities on flight delay and cancellation in ‘super-extraordinary’ circumstances? Time will tell.

Cross Border Clinical Negligence: Assessment of Damages

As we predicted some time ago, medical negligence abroad is continuing to pepper the tabloid headlines and is gaining greater notoriety. Whilst no surgery is without its risks wherever in the world it takes place, we are seeing a greater number of cases involving poor aftercare, suboptimal outcomes, and in some instances, deaths.

The case of Roger Mann (Executor of the Estate of Denise Mann, deceased) v Towarzystwo Ubezpieczen Inter Polska S.A. (1) Noa Clinic (2) Adam Kalecinski (3) [2023] EWHC 2794 (KB) is the latest judgment in the medical negligence abroad sphere, whereby our avid readers may recognise the name of one of the parties from the seminal case of Clarke v Kalecinski [2022] EWHC 488 (QB). For those of you able to attend the APIL International Injuries Conference later this month, I will be speaking more about this topic and similar cases.

Background

This is a judgment arising from an assessment of damages hearing. The claim before the court was a claim for damages following cosmetic surgery abroad undertaken on Mrs Mann at the Noa Clinic, Poland by Dr Kalecinski in September 2013. Mrs Mann sadly passed away in February 2016, for reasons unconnected to her surgery.

By way of a brief background, Mrs Mann had undergone a successful gastric bypass procedure in 2010 on the NHS, losing more than 20 stone in weight. As a consequence of her weight loss, she was left with excess skin, which caused her severe concern and restricted her mobility. She was unsuccessful in seeking to have the excess skin removed by the NHS, and subsequently found the Noa Clinic, where Dr Kalecinski offered cosmetic surgery. In May 2013, she travelled to the Noa Clinic where she had a brief consultation and was considered to be a suitable candidate for multiple surgeries, including abdominoplasty, breast reduction, thigh lift, and liposuction. She underwent the first session of surgery but was not entirely happy with the appearance of her abdomen. She decided to return to the clinic for further surgery on her breasts and thighs at the end of September 2013. Post-surgery, her nipple turned black, and she felt a tightness over her abdominal wound. She approached Dr Kalecinski again, who informed her that her nipple would heal on its own accord. Her scars on her thighs began leaking fluid, which she was told by him was normal. She was eventually admitted to hospital with a necrotic left nipple with a wide area of superficial infection. Ultrasound and CT scans also showed abscesses in both her thighs. She subsequently required emergency surgery. She was left with large areas of scar tissue on her thighs, stomach, arms, and breasts, and had poor contouring of her thighs. She also suffered seromas and cellulitis and continued to suffer from lymphedema.

Thereafter, Mr Mann brought proceedings against the three Defendants for breach of a contract made in England and Wales for the provision of cosmetic surgery by Dr Kalecinski. Mr Mann’s case was that the governing law of the contract was that of England and Wales. Mr Mann also alleged that in tort, he was entitled to bring a claim in this jurisdiction, albeit Polish law applied.

Proceedings

Default judgment was entered against Noa Clinic’s insurers in August 2017. They applied to set that aside in April 2019, but that application was later dismissed by Master Thornett. The claim against Dr Kalecinski and the clinic were stayed, pending disposal of the claim against the insurers. At an earlier hearing, it was directed that certain allegations of breach of duty had been conclusively determined against the insurer.

The matter came before David Pittaway KC in October 2023 for an assessment of damages hearing. As part of the damages claimed, the Claimant sought reimbursement of past surgical costs on the basis that there was defective performance of the contract and consequently he was entitled to recover the sum paid for the negligent services as wasted expenditure. This however was disputed by the Defendant, who alleged that the loss did not form part of the consequential losses from the negligent surgery. The Defendant alleged that the Claimant was only entitled to recover the losses as a result of Dr Kalecinski’s breach of duty.

When determining the issue, the Judge noted that it was clearly not possible to turn the clock back and put Mrs Mann in the position she would have been in had the surgery been carried out properly. However, the Judge concluded that the cosmetic surgery performed on Mrs Mann by Dr Kalecinski was “so bad that it was valueless”. In his view, Mrs Mann derived “no benefit from it at all and only suffered as a result of it”. As such, the Defendant was not entitled to retain any remuneration for the work in question. If he was wrong about that, he referred to authority supporting the notion that the costs could be claimed as wasted expenditure. As such, the Defendant’s submissions were rejected on this issue.

Conclusion

This is certainly a case to bear in mind when considering a claim for past surgical costs arising from medical negligence abroad. There may be attempts by defendants to draw a distinction from this case and other cases that surgery was not that poor that it was ultimately valueless, but there appears to remain an argument available to claimants in any event in respect of wasted expenditure.

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.

Jurisdiction and Applicable Law in Claims against Related Companies: Clifford Chance LLP (1) Clifford Chance Europe LLP (2) v Société Générale S.A. [2023] EWHC 2682 (Comm)

This decision sets out important (though perhaps unsurprising) points relating to jurisdiction, conflict of laws, and the circumstances in which a solicitor’s firm as part of a group is retained by a client.

Background

The Defendant is a French bank and financial services company.

The First Claimant is a firm of solicitors incorporated and authorised in England and Wales. The Second Claimant is a France incorporated and authorised firm in the same global group of solicitors.

Between 2003 and 2005, the Defendant and the Second Claimant entered into a series of framework agreements that set out the terms on which the Defendant would instruct the Second Claimant from time to time.

These framework agreements set out a cap on global fees and prescribed that actual instructions would still be given on a case-by-case basis within that general framework.

In 2008, the Defendant required the services of the Second Claimant in a dispute with a Turkish company. The Defendant’s agreement with that Turkish company was subject to the jurisdiction of the English courts and governed by English law. The Second Claimant was, therefore, neither authorised nor competent to act for the Defendant. The instructions relating to the dispute with the Turkish company were therefore passed to the First Claimant.

No formal written retainer was ever entered into between the First Claimant and the Defendant, but the First Claimant undertook work and served invoices in a manner consistent with the framework agreement.

Between 2009 and 2012, the framework agreement between the Defendant and the Second Claimant, materially, included an exclusive jurisdiction clause conferring the French courts with jurisdiction for disputes arising from the framework agreement; and indicated that the Second Claimant negotiated on behalf of all of the firms comprising the group.

The dispute with the Turkish company proceeded slowly. There was an allegation of defective service of the Claim Form, and in 2016 the Defendant was eventually able to obtain an order for strike out on the basis of limitation.

In 2022, the Defendant commenced proceedings against both the First and Second Claimant in France, seeking to enforce the framework agreement, arguing that the First Claimant had adopted it by conduct, and alleging professional negligence.

The First and Second Claimant applied for an order in England and Wales declaring that they had no liability to the Defendant (in effect, challenging the jurisdiction of the French courts).

The Defendant cross-applied for an order disputing the jurisdiction of the English courts, arguing that the exclusive jurisdiction clause bound both Claimants.

Held

The English court dismissed the Defendant’s application.

  1. The First Claimant, and not the Second Claimant, had been the instructed firm of solicitors. The Defendant did not assert otherwise- one wonders why the Second Claimant was pursued at all, in such circumstances.
  2. The framework agreements bound only the Second, and not the First, Claimants. While the First Claimant’s conduct may have been consistent with the framework agreement, that did not per se make it a party to that agreement. This was contributed to by the fact that the framework agreement made specific provision for individual retainers to be negotiated, as had happened.
  3. The clause entitling the Second Claimant to negotiate on behalf of the First Claimant was a nullity, as there was no actual or apparent authority for the Second Claimant to do any such thing on behalf of the First.
  4. As such, the exclusive jurisdiction clause did not bind the First Claimant, the only Claimant who could in principle have been professionally negligent.
  5. It is wholly correct that a retainer of a firm of solicitors can be implied by conduct, and indeed this had happened- the Defendant and First Claimant were found to have entered into a retainer agreement in this way. However, given that the services were retained in England and Wales for English legal services, that was implied to be an agreement entered into in England and Wales and as such in accordance with English law.
  6. Given that the services in question concerned English law, the courts of England and Wales were manifestly the most convenient forum, not those of France. 

The author would regard these as fairly obvious and self-explanatory points of contract construction. Candidly, the case is perhaps most relevant as a salutary reminder that even large, complicated, and well advised corporate entities can, and do, make very basic negotiating errors when entering into commercial contracts of all kinds. It is (demonstrably) remarkably easy to make serious mistakes as to who exactly your client is are dealing with, and what authority they have, with often disastrous consequences.

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. 

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Robert Parkin

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