The Dekagram: 4th November 2024

This week on Halloween we scared ourselves by reading judges’ comments on the late provision of skeleton arguments and on when and if remote hearings are appropriate; and considered a case involving Thomas Cook Airlines, reaching out from beyond the grave and seeking orders concerning a claimant’s social media postings. Spooky!

Late skeletons could lead to a fright

In Corfield v Howard [2024] EWHC 2727 (Comm) the Defendant sought declaratory relief regarding the meaning and enforcement of a settlement made in a Tomlin Order. This was in relation to a number of properties that had been owned by the Claimant and Defendant, who had been a couple at the time they were purchased.

HHJ Davis-White KC was critical of neither side providing skeleton arguments by 10am one clear day before the hearing.

The Judge said:

“There still seems to be a prevalent view that skeleton arguments can be lodged late, as long as they are received by the Court in advance of a hearing and with a period between delivery that the relevant party’s legal advisers consider sufficient. As has been pointed out by many Judges, the delivery of skeleton arguments in accordance with guidance or court order is essential for the efficient running of the courts. If skeleton arguments are not delivered when required, staff and judicial time can unnecessarily be taken up in chasing for them and hearings can be elongated. This can be to the detriment of other litigants. Both the Judge and the other side need time to consider skeleton arguments which are lodged and served. Further, it cannot be assumed that a Judge is able to devote all the time required solely to one case at the time that a party would like this to be done, for example in this case, Monday morning of the hearing or that this gives the other side time to prepare and react accordingly to legal arguments and authorities that may be relied upon in the late skeleton argument.”

The Judge went further, warning that if directions for skeletons were not adhered to, hearings may be adjourned at the cost of a party in default. We have all been warned.

Coming to the issue of the Tomlin Order itself, the Court referred to Ali Gurgur v Amanda Rees [2021] EWHC 2181 (Ch) in that the stay that arises from a Tomlin Order operates except for the purpose of carrying into effect the terms of the settlement agreement. This allows for the parties to apply for a declaration in seeking to resolve a dispute as to the effect of one of the provisions of the settlement agreement.

The Court then referred to the principles of contractual interpretation, including as set out in Network Rail Infrastructure Ltd v ABC Electrification Ltd [2020] EWCA Civ 1645. It was also set out that the general rule is that evidence of conduct subsequent to the making of a contract is not admissible for the purpose of interpreting the contract.

The terms of the Tomlin Order in this case were found to include an “acceleration clause” to ensure that the Claimant received the promised amount of £400,000 by a certain date.

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.

Remote Hearings: When, and Why? Perseus Ventures Ltd v Foskett [2024] 10 WLUK 246

On 15^th October 2024 Judge Pearce KC gave an extempore judgment on whether an application for disclosure was to be held remotely and discussed the factors to be considered in determining such an application.

Receivers had obtained possession of and sold a property owned by the claimant company. The claimant contended that the defendants, including the receivers and solicitors, had acted fraudulently and/or negligently. The claimant made an unsuccessful application for specific disclosure in December 2023, followed by a further unsuccessful application to vary that order and for an interim injunction.

The claimant company’s sole shareholder and director had been permitted to represent the claimant company. He was based in Hong Kong. He had made allegations of bias, including claiming that he had seen a judge wearing an earpiece. He sought a remote hearing for a disclosure application but gave no reasons for the request, despite having been asked to provide reasons in writing on numerous occasions. He emailed the court again on the morning of the hearing to request remote attendance. 

The judge considered the following issues:

• Practical issues – factors affecting the effectiveness and efficiency of the hearing. In this case not all relevant documents were in the director’s bundle, which would have rendered a remote hearing potentially inefficient.
• The integrity of the hearing – it being more difficult to ascertain the identity of the parties attending and, for example, whether anyone might be surreptitiously recording the hearing if the parties were remote. The court cited an example of an AI bot attempting to join and record a hearing. Although there was no evidence to suggest that the director would behave in a way which would disrupt the hearing’s integrity, it was a theoretical possibility.
• Confidence in the legal system – it is more difficult for observers such as journalists or, in particular, members of the public to attend hearings which are held remotely, and the judge raised the issue of the effectiveness of dealing with witness evidence and submissions remotely. The court had significant concerns in this respect. The director had made allegations about the independence of the judiciary and bias, so the judge thought it better that members of the public be able to attend the hearing with ease simply by walking in and out of an in-person hearing.

The judge refused the application, finding that the director had no right to a remote hearing. He was not required to attend on behalf of the claimant company and could have secured legal representation instead. When considering the question of convenience, the court should look at the claimant company’s interests, rather than those of the director himself. It was not consistent with the overriding objective to hear the case remotely. The court adjourned the application to the upcoming CMC, which was to be in person, as some of the issues overlapped.

CPR PD 23A 6.1-3 provides that hearings to deal with allocation or listing or with a time estimate of two hours or less may be conducted remotely, depending on the normal practice at a particular court. As a general principle, the decision as to whether to conduct a hearing remotely is a matter for the judge who will be conducting the hearing.

Open justice is a fundamental principle, and civil and criminal hearings in England and Wales are generally held in public. It is now permitted for journalists or members of the public to observe hearings remotely, whether those are remote, hybrid or in-person hearings – so in this case, it would have been possible for the court to permit access even if the hearing had been remote. However, the court must be satisfied that it is in the interests of justice to permit remote observation. The 2022 Regulations and Practice Guidance set out guidance for judges to consider when determining whether to permit remote attendance by journalists or the public, including the risk of breaching of court orders or recording the proceedings from a remote location.

There has also been a move to increase transparency in hearings in the Family Courts and Court of Protection. The family court TIG Reporting Pilot creates a presumption in cases at participating court centres that accredited media may report on family cases, subject to strict rules of anonymity.  This is done through a Transparency Order setting out the rules of what can and cannot be reported. In the Court of Protection, the Transparency PD explains how the court decides whether the matter should be held in private and how to identify the subject of the proceedings, with the default position being that hearings are public with reporting restrictions in place through Transparency Orders.

About the Author

Madeleine Miller was called in 2019 and now undertakes work across all of chambers’ practice areas, in particular in personal injury claims and in representing the police and other public bodies in applications for civil orders.

Harper v Thomas Cook Airlines Ltd (in liquidation) [2024] 10 WLUK 444

A judgment of the High Court was handed down last week which made two unusual interim orders in a personal injury case: an injunction to recover Instagram posts, and an order for specific disclosure of two years’ worth of WhatsApp messages.

This was a Montreal Convention claim arising out of an emergency evacuation of a Thomas Cook aircraft in 2017.  The claim form was duly issued in July 2019, not long before the embattled airline sadly collapsed.  Despite the airline’s liquidation the Claimant’s lawyers managed, it is imagined deploying no little skill and effort, to maintain the claim against the snappily-named “All Insurers subscribing to Policy B0509AVNAL1600131 (including the main Policy and its amendments).”

Liability was admitted and the Claimant was put to proof of her injuries.  She alleged that she had sustained a soft tissue injury and a psychological injury.  This, she said, left her with chronic pain and mobility problems.  She claimed damages for care and assistance, loss of earnings and pain management. 

In 2022-2023 the Defendants gathered surveillance evidence on the Claimant.  In 2023 they put a request for further information asking about the effects of the injuries on her life.  The Claimant answered it.  In 2024 the Defendants put another request for further information.  Again, she answered it.  Whereupon the Defendants served the surveillance evidence.

The Claimant then (the Defendants alleged) permanently deleted a post from her Instagram account.  That led to the judgment last week.  The High Court made an order requiring the Claimant to:

• take certain steps by midnight the following day to try to recover the Instagram post;
• make a statement about any steps she took and the results;
• preserve any relevant posts until the end of the trial (in January);
• search for and provide a list of relevant Instagram and facebook posts; and
• give specific disclosure of all photos and videos, with attached messages, from her WhatsApp between June 2022 and May 2024, excluding events taking place in any domestic premises.

As this case shows, disclosure in the age of the digital footprint is not easy.  Our lives are more documented than those of any who lived before us.  Every message, photograph and post we make is a document, and the obligation to conduct a search potentially bites on it.  But legal practice is still catching up.  The current form N265 lists “PCs, databases, back-up tapes, mobile phones, notebooks, PDA devices, portable data storage media, servers, off-site storage, laptops, handheld devices.”  It’s actually hilarious.  It’s like reading PC World Magazine in about 1995.  And yes, reading PC World Magazine is what I used to do in 1995.  But anyway, if you young people will put your whole lives on Insta, expect it to be disclosable if you hurt yourself coming down a bouncy slide out of a burning aeroplane.

About the Author

Ben Rodgers was called in 2007 and now specialises in personal injury work with an emphasis on accidents abroad, including maritime accidents (he is himself an excellent sailor). He is listed for personal injury in the Legal 500, where he is said to be ‘go-to counsel for complex liability disputes; calm and composed, but will fight ferociously when required.’ He is not as ancient as this article suggests.