The Dekagram: 10th November 2025

This week’s Dekagram covers the court system from top to bottom, domestically and internationally. Sarah Prager KC examines two recent decisions of the Court of Justice of the European Union relating to air travel, a decision considering the enforcement jurisdiction of the County Court, and a Court of Appeal judgment reiterating the importance of precise and properly particularised pleading.

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Readers will no doubt be familiar with the phrase Properly Particularised Pleadings Prevent aPpallingly Poor Performance. The Court of Appeal in Wilson & Another v HB (SWA) Limited [2025] EWCA Civ 1360 has recently re-emphasised the point.

The appeal arose from an order striking out most of the claimants’ Schedule of Loss. Mr Wilson, who had been acting as a litigant in person at the time the Schedule was struck out, appealed the order to the Court of Appeal on the basis that any defect in the Schedule was capable of rectification by way of amendment. Coulson LJ noted at paragraph [9] of the judgment:

I acknowledge at the outset that the Schedule of Loss was drafted personally by the Wilsons, and not by counsel. Even though Mr Wilson is a solicitor, the court cannot expect him to produce the same sort of document that a barrister would. That said, I consider that it must have been apparent to Mr Wilson that his Schedule of Loss was over-complicated, unclear, and lacking in even the basic information necessary to identify and support the disputed heads of loss.

It is often said, and not exclusively by barristers, that a lawyer who represents himself has a fool for a client.

The Court of Appeal endorsed the approach taken by the judge at first instance, His Honour Judge Keyser KC, sitting as a High Court Judge. His summary of the relevant principles is repeated with approval at paragraph [17]:

Summary judgment will be given against a claimant on a claim or issue only if the court is satisfied that the claim or issue has no real, as opposed to fanciful, prospect of success; a claim or issue that is merely arguable but carries no degree of conviction will not have a real prospect of success. The court will not conduct a mini-trial and, where necessary, will bear in mind that full disclosure has not yet taken place and that there might be more evidence to come. Accordingly, where there are disputed questions of fact, it will not generally attempt to determine where the probabilities lie. However, the court ought to carry out a critical examination of the available material and is not bound to accept the mere say-so of anybody; where it is clear that a factual case is self-contradictory or inherently incredible or where it is contradicted by the contemporaneous documents, the court, after careful consideration of the evidence that is currently before it and having regard to the nature of such further evidence as might reasonably be expected to be available at trial, is entitled to reject that case even on a summary basis. The court will not be dissuaded from giving judgment by mere Micawberism—the unsubstantiated hope that “something might turn up”. Importantly, where the claim turns on a point of law that can properly be determined on the available evidence, the court is entitled to go ahead and determine it. The complexity of litigation is not itself a reason for refusing summary judgment: the circumstances may be such that determination of the case is impossible without a trial; on the other hand, it might be possible to analyse the case sufficiently at an early stage and thereby avoid the unnecessary time and expense of the continuation of litigation until trial. In all cases, r. 24.2(b) falls to be considered in principle.

The Schedule was defective in that some of the heads of loss pleaded were not supported by the facts pleaded in the Particulars of Claim; they were, in the words of the Court of Appeal ‘not set up in the parent pleading’ (a turn of phrase which calls to the mind of the author an adorable image of a mother duck followed by baby duck schedules). It is, as the Court noted, impermissible for damages to be claimed in a schedule of loss where the basis of the claim is not explained or even referred to in the statement of claim. Indeed, some of the heads of loss were so underparticularised that even the Schedule did not reference their underpinnings, making them impossible to understand or to plead to.

The Court acknowledged that in cases where a defective pleading might be rectified by way of amendment it might not be proportionate to strike out the claim, but noted that the claimants had had the opportunity to produce an amended Schedule but had not done so, either before the Judge or on appeal. This was held to be an important point of distinction between the case at hand and other authorities relied on by counsel for the claimants. There was simply nothing before the court to indicate whether a coherently pleaded claim might be put forward on the part of the claimants, and the Judge was therefore right to have struck out the Schedule of Loss.

Comment

In the course of its judgment the Court of Appeal made plain that the decision to strike out some of the deficiently pleaded heads of loss within the Schedule of Loss was a case management one which fell within the wide discretion available to the judge. In some instances the pleading defects were so great that the heads of loss had to be struck out; but in others it might have been possible to rectify them. What disinclined the Court to interfere with the judge’s robust approach was the inability of newly instructed counsel for the claimants to point to any amended pleading as showing what the Schedule would look like if an amendment were to be allowed. This underlines the point repeatedly made by judges at all levels, and indeed by the author: almost no mistake is irremediable, if action is taken at the first possible opportunity, but as time goes on an error which might once have seemed relatively insignificant can become intractable as the patience of the court is exhausted.

Can the County Court Recognise and Enforce Foreign Judgments? Spoiler: No

In what readers may regard as a slightly bizarre case, in Field Industrial Supplies WLL (a company incorporated under the laws of Qatar) v Thomas [2025] EWCC 59 the Nothampton County Court was called upon to consider whether it had the power to recognise and enforce a judgment of the Qatari court. Perhaps unsurprisingly in the light of the procedural framework, there was no decided authority on the point; there is now.

The facts may be briefly stated. On 31^st March 2022 the Qatari Court of First Instance gave final judgment for the claimant and against the defendant in the sum of QR243,303. The claimant subsequently issued proceedings out of the County Court of England and Wales seeking to enforce that judgment. Those proceedings were served on the defendant on 7^th November 2023. A Defence was filed on 4^th December 2023. The matter proceeded to trial on 6^th August and 3^rd September 2-25; judgment was reserved.

The State of Qatar is not a signatory of the Hague Convention, nor can a judgment of a Qatari court be recognised or directly enforced by the High Court or the County Court pursuant to any UK legislation. The claim was therefore brought under the common law. This had the effect that CPR 74, requiring certain applications to enforce judgments of foreign courts to be made in the High Court, did not apply.

The County Court, however, is a creature of statute, as Recorder Neville pointed out. Its jurisdiction has been mandated by Parliament, and in no statute does there appear any jurisdiction to recognise or enforce a foreign judgment.

The principal source of the County Court’s jurisdiction is Part II of the County Courts Act 1984, the only provisions of which that could conceivably have assisted the Claimant being ss.15 and 23, which state:

15 General jurisdiction in actions of contract and tort.

(1) Subject to subsection (2), the county court shall have jurisdiction to hear and determine any action founded on contract or tort.

[…]

23 Equity jurisdiction.

The county court shall have all the jurisdiction of the High Court to hear and determine—

[…]

(g) proceedings for relief against fraud or mistake, where the damage sustained or the estate or fund in respect of which relief is sought does not exceed in amount or value the county court limit.

The problem for the claimant in this case will be immediately apparent to our readers. The claim was founded on a foreign judgment; it was not a claim in contract or tort or proceedings for relief against fraud or mistake (whatever the characterisation of the Qatari proceedings might originally have been). Nevertheless, counsel for both the claimant and the defendant agreed that the County Court did have jurisdiction; the judge did not agree, and took the point of his own volition. Respectfully, it is suggested that he was right to do so and to find that the Court did not have jurisdiction to recognise and enforce the foreign judgment.

The reason is that where a party has obtained judgment, that judgment acts to extinguish the original cause of action, which no longer exists. Furthermore, as a result of the way in which the claim was pleaded the judge had no evidence before him as to Qatari law which might enable him to make any determination as to the nature or classification of the proceedings which had preceded the judgment in the Qatari courts.

The fact that the defendant had submitted to the court’s jurisdiction by failing to take the point pursuant to the provisions of CPR Part 11 meant only that the defendant was debarred from taking the point; the Court retained its power and duty to police its own jurisdiction. Recorder Neville noted at paragraph [23] of the judgment:

In the present case, and if my preceding analysis is correct, the cause of action pursued by the Claimant has been recognised for over a century as falling outside those founded on contract or tort. Yet Parliament has never taken the opportunity to include it within the County Court’s jurisdiction, and I note that CPR 47 reserves proceedings with a statutory underpinning to the High Court. One can well imagine why this should be so for claims involving issues of international private law and that might findings concerning the institutions of other states…In this case, the parties’ failure to properly and timeously consider jurisdiction provides poor justification for the County Court to act outside the jurisdiction conferred upon it by Parliament. I reject that CPR 11 should operate to do so here.

The judge had some sympathy for the claimant’s representatives; they had in fact attempted to issue the claim out of the King’s Bench Division on two occasions but had been rebuffed on the basis that the value of the claim (£52,046.80 at time of issue) fell below the threshold for issuing out of the High Court (£100,000). But although the High Court was wrong to refuse to issue the claim in circumstances in which the County Court did not have jurisdiction, this fact was never drawn to its attention. Nor was any application made to transfer the claim from the County Court and into the High Court upon issue.

Recorder Neville considered whether the claim should be transferred to the High Court rather than being struck out (cf s.42 of the County Court Act 1981 in this respect). He concluded that it should be struck out because the claimant’s representatives ought to have known that it could only be brought in the High Court, notwithstanding the latter’s refusal to issue it. As he observed at paragraph [27]:

I find that issuing the claim without having identified the source of the County Court’s jurisdiction was a serious default, for which there was no good reason. I turn to evaluate all the circumstances of the case to enable me to deal justly with the matter. If the issue had been canvassed at the start of proceedings, before the parties and the Court had been put to the expense of a full trial, beyond question the correct decision would be to transfer the proceedings to the High Court. Fault for that lies with both parties, but the Defendant’s contribution can be recognised (if appropriate) when deciding the issue of costs. Having heard the parties’ submissions and evidence in full, it would be wholly contrary to the overriding objective to now require the High Court to repeat the entire exercise…Furthermore, this this is one of the rare cases where the underlying merits of the claim are so very weak as to factor into the exercise of discretion at stage 3…The claim on the Judgment is struck out under CPR 3.4 as disclosing no reasonable grounds for bringing the claim.

Recorder Neville went on to find that the judgment was unenforceable in the English courts in any event, completing a full house of woe for the claimant.

Comment

This judgment is a reminder that where recognition and enforcement of a judgment is likely to be sought internationally the claimant should always issue out of the High Court. Regular readers will no doubt be weary of hearing about failures such as that in this case and of being reminded that cases with a foreign element always repay careful procedural consideration pre-issue, and ideally at as early a stage as possible. This goes for both claimants’ and defendants’ representatives, of course; by the time the Recorder was able to turn his attention to the matter the case had been listed for trial and significant costs had already been incurred. It will be interesting to see what costs order he makes in the circumstances.

Pets as Baggage and Lighting as Extraordinary Circumstances: Two Recent Decisions of the Court of Justice of the European Union

In a judgment which will send shockwaves through the animal-loving UK legal community, the Court of Justice of the European Union has recently determined that for the purposes of the Montreal Convention pets are not passengers and are not excluded from the concept of ‘baggage’.

The facts in Iberia Felicísima vLíneas Aéreas de España, Case C-218/24 were as tragic as could be, from the point of view of a pet owner. On 22^nd October 2019 a passenger travelled with her mother and her pet  dog on a flight from Buenos Aires to Barcelona. Due to its size and weight the dog was to travel in a pet carrier in the hold of the aircraft. The passenger did not make a special declaration of interest in delivery at destination concerning the dog within the meaning of the Convention. Sadly the dog escaped while being carried to the plane, and could not be recovered. The passenger claimed compensation in the amount of €5 000 for the non-material damage suffered following the loss of her dog. Iberia accepted liability for the loss of the dog and the passenger’s entitlement to compensation, but sought to apply the limit laid down in the Convention for checked baggage. The Spanish court examining the claim for compensation decided to refer a question to the Court of Justice in order to determine whether the concept of ‘baggage’ within the meaning of the Montreal Convention excluded pets travelling with passengers.

The Court held that it did not; even though the ordinary meaning of the word ‘baggage’ refers to objects, this alone did not lead to the conclusion that pets fall outside that concept. The Convention differentiates between ‘persons’ and ‘baggage’, and pets are more analogous to the latter than the former, therefore for the purposes of air travel, a pet falls within the concept of ‘baggage’, and the compensation for the damage resulting from the loss of a pet is subject to the liability rules for baggage and not to the rules governing carriage of passengers. In the absence of any special declaration of interest in delivery at destination, the limit on an air carrier’s liability for the loss of baggage includes non-material damage as well as material damage. If a passenger considers that that limit is insufficient, a special declaration of interest in delivery at destination allows him or her to increase the limit, subject to approval by the air carrier and to the payment of a supplementary sum if the case so requires; failure to do so places the risk of incurring loss exceeding the limit firmly onto the passenger.

Comment

The case raises some interesting questions: would the result have been any different had the dog been a service dog or companion animal rather than a pet? Should an animal carried in the cabin of the aircraft rather than the hold be treated differently? Is there any logical distinction to be made as between animals, with higher apes being subject to a different regime? Fascinating though these questions may be to the pet owning lawyer, the author suspects that all must be answered in the negative, pending further clarification from the CJEU.

In the second of the aviation related decisions handed down by the CJEU on 16^th October, AirHelp v Austrian Airlines, Case C-399/24, the Court determined that for the purposes of Regulation (EC) No.261/2004 (known to you and me as the Denied Boarding Regulations) a lightning strike on an aircraft may constitute an extraordinary circumstance so as to enable an airline to avoid paying passengers compensation for long delay or cancellation caused by the need to undertake mandatory safety inspections prior to returning the aircraft to service.

The facts were relatively quotidien: shortly before landing in Iași an Austrian Airlines aircraft was struck by lightning. Due to the mandatory safety inspections that followed, that aircraft was unable to operate the subsequent flight to Vienna as planned. A passenger who was supposed to take that flight eventually arrived in Vienna on a replacement flight over seven hours late. He assigned the potential claim arising from that delay to AirHelp, which claimed compensation of €400 from Austrian Airlines before the Austrian courts. Austrian Airlines argued that the lightning strike, followed by mandatory safety inspections, constituted an extraordinary circumstance relieving it of its obligation to compensate the passenger. Moreover, it had, in its view, taken all reasonable measures to remedy the delay. The Austrian court hearing the case referred the question to the Court of Justice.

The Court reminded itself that the Regulations include within the Recitals meteorological conditions incompatible with the operation of the flight concerned – including the risk of the aircraft being struck by lightning – in the concept of ‘extraordinary circumstances’. It found that a lightning strike, after which the aircraft must undergo mandatory safety inspections, is not intrinsically linked to the airline’s operating system. It is, therefore, not inherent in the normal exercise of the activity of the airline concerned and is beyond the airline’s actual control. That conclusion made it possible to guarantee the objective of passenger safety by preventing airlines from being encouraged not to undertake the mandatory safety checks but rather to prioritise punctuality over that objective of safety.

In order to be released from the obligation to pay compensation to the affected passengers, of course, the airline must still show that it took all reasonable measures to avoid the extraordinary circumstances and their consequences. The Court remitted that aspect of the case to the Austrian court for future determination.

Comment

In the author’s view this decision is a welcome rebalancing on the part of the Court, which does seem to have driven a coach and horses through the wording of the Denied Boarding Regulations almost since their inception. Quite where the weight placed on the Recital leaves the UK courts in the aftermath of the decision in DHV v Motor Insurers’ Bureau [2025] EWHC 2002 (KB), however, is anyone’s guess.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories in travel law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last few decades. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases, including serious sexual assault and cases involving children.