The Dekagram: 20th April 2026

Now that Spring finally appears to have arrived, our thoughts have turned to intoxication – this week Sarah Prager KC examines the potential dangers for those serving alcohol posed by over-refreshed patrons. Meanwhile, Andrew Spencer considers a recent decision on case management in group claims.

Considering case management in multi-party claims

In the recent case of APK Communications v Vodafone, Bryan J considered and summarised some of the issues at play in a group action, and how they should be resolved. These were: whether there should be a split trial; whether there should be sample claimants for the liability trial; and (significantly) whether some of the cohort of claimants could continue to be represented by different solicitors to the other claimants.  

The 62 Claimants were former franchisees of Vodafone, having run Vodafone mobile phone stores. They made five sets of claims arising out of how Vodafone had managed the franchises, claiming over £84 million in total.

Split trial and sampling

The first issue was whether there should be a split trial. The judge noted the (non-exhaustive) checklist of factors set out by Hildyard J in Electrical Waste Recycling Group Ltd v Philips Electronics UK Ltd [2012] EWHC 38 (Ch):-

1. whether the prospective advantage of saving the costs of an investigation of quantum if liability is not established outweighs the likelihood of increased aggregate costs if liability is established and a further trial is necessary;
2. what are likely to be the advantages and disadvantages in terms of trial preparation and management;
3. whether a split trial will impose unnecessary inconvenience and strain on witnesses who may be required in both trials;
4. whether a single trial to deal with both liability and quantum will lead to excessive complexity and diffusion of issues, or place an undue burden on the Judge hearing the case;
5. whether a split may cause particular prejudice to one or other of the parties (for example by delaying any ultimate award of compensation or damages);
6. whether there are difficulties of defining an appropriate split or whether a clean split is possible;
7. what weight is to be given to the risk of duplication, delay and the disadvantage of bifurcated appellate process;
8. generally, what is perceived to offer the best course to ensure that the whole matter is adjudicated as fairly, quickly and efficiently as possible.
9. whether a split would assist or discourage mediation and/or settlement; and
10. whether an order for a split late in the day after the expenditure of time and costs might actually increase costs.

Deciding whether or not to order a split trial requires a “pragmatic balancing exercise”.

The judge noted the importance of carefully demarcating the boundaries between the two trials, and that if they cannot neatly be demarcated, that may point against a split trial.

In APK, the parties (mostly) agreed how the issues should be divided between the trials and the judge agreed that this was how the case should proceed.

The next question was as to sampling. Following Fancourt J in Lancaster v Peacock [2020] EWHC 1231 (Ch):-

The purpose of taking sample claimants is twofold. First, to ensure that issues that are common to all the claimants’ claims can be decided in such a way as to bind them all; and, second, to decide other factual and legal issues where the decision will not necessarily bind other claimants but is likely to give a very clear indication of the way that their cases too will be decided if tried, with the expected consequence that the parties will then be able to settle the remaining claims.

It is not, of course, necessary to have very many sample claimants in order to decide common issues. The purpose of a broader selection of sample claimants, beyond what is needed to try the Common Issues, is to generate sufficiently broad guidance for the likely disposal of all the other claims, whose particular facts will vary, while at the same time not overcomplicating or encumbering or significantly adding to the cost of the trial.

The parties had been able to agree the number of sample Claimants, with each party selecting eight, and if four or more of these overlap then the parties could nominate up to two further Claimants.

Representation

When the claim was issued, the Claimants were all represented by the same solicitors. However, just after service of the claim, a different firm came on the record for around half of the Claimants. The Defendant took issue with this, contending (rightly) that co-Claimants were required to have the same representation unless the court orders otherwise. The judge noted the court would rarely permit separate representation, which was a procedural irregularity, and has the potential to cause substantial prejudice in terms of additional costs, as well as (potentially) meaning the Claimants have two opening and closing speeches, and an additional opportunity to examine witnesses.

The Claimants had considered these problems and sought to mitigate them. They had put in place a steering committee instructing one set only of counsel for the trial. They agreed to be limited, if successful, to the costs that would have been incurred had there been only one firm of solicitors on the record. And the justification for the arrangement was that the Claimants could not proceed to trial without it, and that the second firm had considerably lower hourly rates.

The judge considered that the court would have been unlikely to approve this arrangement at the outset. But the claim had been underway for some time, and measures devised by the Claimants which assuaged the Defendant’s concern about it. On that basis the judge did permit separate representation, but only on terms designed to deal with the potential prejudice to the Defendant and to ensure a proper way forward. These were:-

1. An order for costs in the Claimant’s favour in these proceedings will be limited to those costs which would have been incurred if the Claimants had instructed one firm of solicitors.
2. Records needed to be kept in sufficient detail to identify what fee earners in each firm have billed costs in relation to each stage of the litigation and what for. This is to ensure there is no duplication of costs and, if there is, it can be identified.
3. One firm would be nominated as solicitors responsible for all case management matters and sole point of contact for all such matters up to and including trial. 
4. The Claimants shall identify on an ongoing basis which firm is the single point of contact in relation to each issue.
5. The Claimants confirmed, and would be held to that confirmation, that they will continue to instruct the same counsel team and that they will do so for the duration of the proceedings.

Comment

This is a very pragmatic decision, and it is significant that Vodafone adopted a neutral stance rather than opposing it, otherwise it might well have been decided the other way. The judge was at pains to say this did not mean courts would be any more willing to allow co-representation in future, and this was a decision on its own facts. Parties should be “under no illusion” that any such application should be made promptly, and a party making a late application would face an uphill task.

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.

Intoxication: do licensed premises owe a duty not to serve inebriated patrons?

The jury decision in an American case, Sanders v Carnival Plc, has been widely reported internationally this week. It appears from the reporting that during the course of an all inclusive cruise from Los Angeles to Hawaii the claimant drank ‘at least’ 14 shots of tequila in 8½ hours and proceeded to fall down a staircase, sustaining injuries as a result. She sued the cruise operator for US$250,000 on the basis that bar staff should not have continued to serve her once she was ‘visibly intoxicated’; Carnival seems to have defended the claim on the grounds that she was unable to identify which bar she’d been drinking in, although given her undisputed location aboard ship it must surely have been accepted that wherever she was drinking, she must have been served by its employees. The jury in South Florida found that Carnival was 60% responsible for the accident, and Sanders herself 40% responsible, and awarded her US$300,000, seemingly more than she was actually claiming. Carnival have indicated an intention to appeal the result, which has been the subject of much hostile commentary from armchair lawyers across the Northern hemisphere.

Would a similar claim give rise to a similar outcome if it were heard by the English courts?

The starting point when considering cases involving intoxication is the decision of the Court of Appeal in Barrett v Ministry of Defence [1995] 1 WLR 1217, in which the Court allowed a claim brought by the widow of a sailor who had asphyxiated on his own vomit after a bout of drinking (at a Hawaiian themed night – coincidence? you decide), but reduced damages by two thirds to reflect his responsibility for his own drunkenness. During the course of the judgment Beldam LJ held that:

“I can see no reason why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink. No one is better placed to judge the amount that he can safely consume or to exercise control in his own interest as well as in the interest of others. To dilute self-responsibility and to blame one adult for another’s lack of self-control is neither just nor reasonable and in the development of the law of negligence an increment too far.”

The claim ultimately succeeded, however, because when Mr Barrett was found unconscious and placed in his bunk, the Defendant assumed responsibility for his welfare and then failed either to supervise him properly or to provide him with medical attention.

The proposition that those serving alcohol do not owe a duty to those they serve, even in an employment context, was moderated somewhat by the Court of Appeal in Jebson v Ministry of Defence [2000] 1 WLR 2055, another claim involving drunken servicemen. In that case the Claimant had fallen from the tailgate of a lorry provided to transport soldiers back to barracks from a ‘recreational outing’ in Portsmouth (alas, history does not relate whether or not it was Hawaiian themed, but it seems probable). The claim succeeded on the basis that the Defendant ought to have been aware that after three hours spent in Pompey the soldiers were likely to be – in the words of one them – plastered, and ought therefore to have taken additional care to see that they didn’t engage in high jinks on the way home. For our purposes the relevant passage of the judgment of Potter LJ is as follows:

“in the ordinary way and in most situations, an adult (and these young men were adults) is not entitled to pray in aid his own drunkenness as giving rise to a duty or responsibility in others to exercise special care. However, that is not an invariable rule; nor is it one which it is fair just and reasonable to apply in circumstances where an obligation of care is assumed or impliedly undertaken in respect of a person who it is appreciated is likely to be drunk. In this case, as the judge held, in providing transport for the evening out, it was, or should have been, expressly anticipated that the participants would be returning in an inebriated state and likely to be in high spirits. Accordingly, in those circumstances, there was a particular duty to ensure that the transport “package” provided was reasonably safe to avoid the possibility of injury from rowdy behaviour in the back of the lorry.”

Damages were reduced by 75%, however, to reflect the parties’ respective responsibility for the accident.

A Northern Irish case illustrates the law outside the military context. In Joy v Newell [2000] NI 91 the Court of Appeal (Northern Ireland) dismissed a claim from a drunken patron who had fallen off a bar stool after having taken a couple of sips of the first drink served to him in that particular establishment. It was found as a fact that the bar staff had had no reason to know that he was already drunk when he entered the bar. The Court held that a positive duty to save someone from danger only arose where there had been an assumption of responsibility to ensure that person’s safety. Despite it being a criminal offence for a licensee to serve alcohol to an obviously intoxicated customer, it would be unreasonable to find that a licensee had assumed a positive duty on the basis that a customer could become so drunk that he would be unable to take care of himself.

In summary, then, it appears that the current state of the law in England and Wales and in Northern Ireland is that merely serving alcohol to a person who becomes inebriated and subsequently suffers injury is not in itself enough to give rise to a finding of breach of duty. It remains to be seen whether doing so in the context of an all inclusive offering might be considered differently, since it is notorious that English tourists find an all inclusive buffet or bar experience almost impossible to resist. Should they therefore be assisted in battling their own unlimited greed? To date the courts have not provided an answer to this question.

In Sanders, of course, the accident took place in the course of a cruise holiday, and if the law of England and Wales had applied, the Athens Convention might well have formed the legal context in which the claim would have been considered. Pursuant to Article 3(2) of the modified Convention:

“For the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, the carrier shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect shall lie with the claimant.”

 Where the English courts do not recognise a common law duty not to serve intoxicated patrons, might they be persuaded to acknowledge a duty under the Convention not to do so? It appears unlikely that such a case could be made out, given the statement of the law in Barrett, but the comments in Jebson, though obiter, could conceivably underpin such a submission. Together with the all inclusive nature of the cruise, a judge might be persuaded to find in favour of a claimant in the position of Mrs Sanders, although it appears on the face of it to be unlikely on the authorities as they currently stand, and even if her claim could succeed in the English courts, it would inevitably be much reduced on account of contributory negligence, on the authorities by well over 50%, rather than the 40% reduction the jury allowed for.

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 and Tom Yarrow, 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.