The Dekagram: 7 April 2025

Last month saw an additional twist in the litigation currently under way in the English courts between pilots and their employers resulting from what the pilots claim to have been exposure to toxic fumes in aircraft cockpits. The trial in the case is expected to take place next year, but in an interesting hostage to fortune the Scottish courts have (albeit implicitly) assessed the pilots’ prospects of success at 40%. How did this come about? In Gough v Cannon’s Law Practice (2025) CSOH 28 the Court of Session (Outer House) was asked to determine claims brought by two pilots against their erstwhile solicitors for the latter’s failure to advise them to join the collective group action or to take any other steps to preserve their claims. The firm admitted breach of duty but (as always) contended that the claims would have had poor (only 20%) prospects of success even if they had been brought within time; the pilots contended for damages based on an 80% chance of success. In the end, and having heard nine witnesses of fact and twelve expert witnesses, the Court decided that the pilots had a 40% prospect of success had the claim been brought timeously, and awarded damages against their former solicitors on that basis. In doing so Lord Richardson made a number of findings of fact and law which it will be interesting to review when the collective claim comes to an end, either by way of trial or settlement.

The pilots’ claims could have been brought in the courts of England and Wales as being the most appropriate jurisdiction in which to hear them, of course; but what of consumer claims? In this week’s Dekagram Andrew Spencer examines the jurisdictional issues around cross border consumer contracts, whilst new tenant Julia Brechtelsbauer considers an alternative to bringing proceedings against service providers themselves.  

Give s.75 of the Consumer Credit Act 1974 some Credit: Credit Cards and Clinical Negligence Abroad

Readers who attended the “Accidents and Deaths Abroad” Conference hosted by Deka Chambers on 13^th February 2025 will recall the striking analysis of Fulvio Urso-Baiarda on the quality of plastic surgery offered abroad. Coincidentally, on 14^th to 15^th February 2025 there was a “Health Tourism Exposition” for Turkey’s 80 hospitals and clinics to the general public in London, advertising “affordable word-class healthcare”. Health tourism truly has come to the fore, and consumers are going aboard to receive treatment, often for “optional” healthcare, whether that be plastic surgery, hair transplants or dental veneers.

Whilst wider consumer choice and affordability is a positive development, as Fulvio Urso-Baiarda explained, the standards simply may not be up to scratch in comparison to UK-based treatment. At the conference, this was mainly discussed in the context of package holidays, protected under the Package Travel and Linked Travel Arrangements Regulations 2018. This Dekagram considers an alternative avenue to claiming for clinical negligence which may also assist where the Claimant has received medical treatment abroad – s.75 of the Consumer Credit Act 1974.

How does s.75 work?

s.75(1) Consumer Credit Act 1974 reads as follows:

If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.

In our context this means, if a Claimant has paid via credit card, they can sue their credit card issuer, as well as or instead of the “supplier” of the medical treatment. They must still however demonstrate a misrepresentation or breach of contract by the “supplier”.

“Finance” is defined in s.189 of the Consumer Credit Act 1974 as meaning wholly or partly. Therefore, it would apply to a transaction where the Claimant has paid for some of the treatment “up-front”, and the rest on the credit card. Further, the financial limits of the Consumer Credit Act 1974 are within the range likely for medical treatment, particularly those advertised to be “affordable”. S.75(3)(b) sets the prima facie scope applicable as more than £100 but less than £30,000.

Further, although it may be practically desirable due to the necessity to show breach of contract, there is no requirement that the supplier must also be a defendant to the claim, or that judgment must be obtained first against the supplier.

So how far can s.75 of the Consumer Credit Act 1974 stretch?

It has been confirmed that s.75 applies to transactions completed abroad and indeed, it has been utilised in the past to avoid the long arduous process of suing defendants in foreign courts.

In Office of Fair Trading v Lloyds TSB Bank Plc [2007] UKHL 48it was confirmed that the only limitation on the territorial scope of the Consumer Credit Act 1974, s.74 (1) was that the credit agreement had to be a UK credit agreement. The House of Lords rejected the bank’s submissions that it did not extend to use of credit cards in relation to foreign transactions. S.74(2) provides the bank with an indemnity against the supplier. Therefore, as Lord Mance highlighted (paragraph 36) “the appellants own case involves a disconnection, since it seeks to derive, from an indemnity provision capable on its face of applying to all creditor-supplier relationships subject to UK law, a limitation in the scope of liability under section 75(1) based on characteristics relating to the supply-debtor transaction which have no necessary connection with the creditor-supplier relationship.” All that s.74(2) did was recognise a trite restitutionary right in English common law, which may well be recognised in other developed legal systems. Therefore, s.75 applies equally to transactions carried out abroad.

How does this work in practice?

In Bailey v (1) Biljani (2) MBNA Ltd [2025] EWHC 175 (KB)the Claimant had paid for private dental treatment on credit card. When it went wrong, she sued both the dentist and the credit card issuer. The credit card issuer would be jointly and severally liable for any misrepresentation or breach of contract by the supplier by virtue of s.75 of the Consumer Credit Act 1974. The Claimant’s treatment was having a bridge replaced with an implant. The implant subsequently needed to be removed, with considerable bone loss to her jaw, and resulting in her losing two adjacent teeth. Had the First Defendant conducted a proper assessment, he would have concluded that the Claimant was not a suitable candidate for an implant at all. As the Claimant was not advised of her unsuitability, there was a failure to obtain informed consent. Further, the implant was placed incorrectly. D1 was found to be negligent, and D2 jointly and severally liable. The case serves as a useful reminder that there may be alternative route to recovery in the case of private treatment paid through credit card. This is particularly useful where there may be issues with indemnity and being able to recover the full extent of the claim.

A further example of how the Consumer Credit Act can assist with foreign litigation is the infamous PIP scandal. The PIP scandal involved women, including British women, receiving breast implants manufactured by a French firm which were filled with cheap, industrial-grade silicone not cleared for human use. The implants were certified as safe by a German firm. The women who paid for the implants with a credit card, were able to settle their case with said credit card issuer, as opposed to pursuing litigation in the French courts. A vivid demonstration of the impact this can have is as follows:

• In 2013 those representing the women who had paid on credit card were able to reach an agreement with Lloyds for settlement of the claims.
• The women who did not pay on credit card only received confirmation of their compensation after a Paris appeal court ruling in 2021.

Conclusion

Therefore, s.75 is highly beneficial to Claimants and ought to be utilised by practitioners, particularly in the era of “Turkey Teeth”. The act provides an identifiable, likely solvent and English-domiciled Defendant, the benefit of which cannot be under-stated. For the Claimants in the PIP litigation, it led to their just compensation 8 years earlier than their non-credit-card counterparts.

About the Author

Julia Brechtelsbauer gained tenancy having completed pupillage at Deka Chambers. Before coming to the Bar, she took an LLM in Comparative Private Law at the University of Edinburgh, and during this time she also tutored tort and EU law privately at undergraduate level. Studying Law with Spanish Law at the University of Oxford, Julia came first in her cohort in EU Law and Comparative Private Law, placing 5th overall. She has also been published by the Oxford University Undergraduate Law Journal, focusing on the defence of illegality in tort law. She has already been led by Sarah Prager KC in a paraplegia case involving complex issues around assumption of responsibility and is developing a thriving practice in international work.

Conveniens for Consumers

An essential issue to consider in any case involving plastic surgery abroad is jurisdiction.

A further advantage of bringing a claim under s.75 of the Consumer Credit Act 1974 is that the defendant (the credit card company) is likely to be based in this jurisdiction so can be sued here without difficulty.

In contrast, if the defendant is an overseas surgeon or clinic, it is likely to be necessary to serve out. It is worth considering whether the “consumer contract” provisions in Sections 15A – 15B of the Civil Jurisdiction and Judgments Act 1982 apply. When they apply, the claimant is able to serve out in reliance on them, without the need for permission.

For these provisions to apply, there has to be a consumer contract. This means that the claimant concludes the contract for a purpose outside their trade or profession (section 15E(1)) – so may well exclude (say) an actor who has plastic surgery to improve their career.

A further requirement is that the defendant “pursues commercial or professional activities” in the part of the UK where the Claimant is based, or “by any means” directs such activities to that place, and the contract falls within the scope of these activities. Section 15E(2) requires the court interpreting these provisions to have regard to pre-Brexit principles from the CJEU.

The CJEU considered this in Pammer v Reederei Karl Schlüter GmbH (C-585/08). The question is whether it is apparent from the trader’s overall activity that they envisaged doing business with consumers in the place of the Claimant’s domicile. In some cases, this will be straightforward to establish: for example, where a surgeon or hospital advertise in his jurisdiction, including at an “open day”, or where an overseas surgeon consults with potential clients here. In other cases there may only be a website which is accessible in the place where the Claimant is based. Of itself this is not sufficient. But where there is a website, the following are relevant:-

1. An activity of an international nature;
2. Mention of people travelling from the place where the Claimant is based to the Defendant’s location;
3. Use of a language or currency other than that used in the Defendant’s location;
4. Use of telephone numbers with an international code;
5. The Defendant using an internet referencing service to direct the page to people in other places;
6. Mention of an international clientele.

These matters are not, however, conclusive – similar factors were not sufficient to make out this test in Roach v Vallarta Adventure [2023] EWHC 2674 (KB) where a Mexican company directed its services primarily at North American, rather than UK-based, customers.

The final issue to be aware of is forum non conveniens. If proceedings are served out, without the need for permission, the Defendant can still argue that England and Wales is not the correct forum and that proceedings should be brought elsewhere. Section 49 of the 1982 Act says, in terms, that nothing in the Act (i.e. including Sections 15A – E) prevents a court from saying proceedings on forum non conveniens grounds. The fact that the 1982 Act specifically entitles consumers to bring claims here must (it is submitted) be a relevant factor as to whether this forum is “conveniens”. Watch this space to see how the courts interpret the interaction between consumer provisions permitting service out without permission, and the retained ability for the Defendant to challenge jurisdiction.

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.