Non-Attendance on the Small Claims Track: Owen v Black Horse Ltd [2023] EWCA Civ 325 - Sebastian Bates, Temple Garden Chambers

16/04/23. CPR 27.9 governs ‘[n]on-attendance of parties at a final hearing’ on the small claims track. The question for the Court of Appeal in this case was what CPR 27.9 means by circumstances in which ‘a claimant does not attend the hearing’.

Summary

This question arose because Mr Owen was absent from the trial of his small claim, although his solicitor attended: see [5]–[18].

DDJ Sandcock struck out his claim under CPR 27.9(2) for reasons summarised at [56]–[65]. His starting point was that he had a ‘a discretion to strike out the claim’ where a claimant did not attend or give notice under CPR 27.9(1). Having concluded that Mr Owen had not given proper notice, he reasoned that there is a distinction between appearance and attendance and that, although a party might appear by a legal representative, a party could only attend by actually engaging in the proceedings. Black Horse Ltd had been prejudiced by its inability to cross-examine Mr Owen.

Mr Owen appealed. HHJ Jarman KC dismissed his appeal for reasons summarised at [66]–[80]. He acknowledged that two judgments—given by Gross and Nugee JJ and summarised at [41]–[47] and [48]–[55]—indicated that a party could attend by a legal representative in terms of CPR 39.3. He accepted that phrases across the Civil Procedure Rules ought to be interpreted consistently. However, the context to CPR 27.9 was different. CPR 27.11 enables a party ‘neither present nor represented at the hearing of the claim’, who failed to give proper notice but ‘had a good reason for not attending or being represented at the hearing or giving [such] notice’, to apply to have a judgment set aside. He considered that the otherwise-tautologous references to ‘attending’ and ‘being represented’ made clear that a party had to be personally present to attend a hearing for the purpose of CPR 27.9.

On Mr Owen’s second appeal, Elisabeth Laing LJ described (at [100]) the argument that ‘the difference in language between rule 27.9 and rule 27.11 must be deliberate, and [. . .] must be given effect to’ as Black Horse Ltd’s ‘strongest’. She nevertheless rejected it. She pointed out that it entailed that ‘the circumstances in which a party’s case can be struck out for non-attendance do not match the circumstances in which a party whose case has been struck out for non-attendance can apply for his case to be re-instated’. In her view, there was ‘no sensible practical reason for such a mismatch’.

She regarded the judgments cited by HHJ Jarman KC, as well as an earlier Court of Appeal judgment construing the County Court Rules (summarised at [39]–[40]), as supportive of Mr Owen’s appeal, on the basis that functionally similar provisions ought to be interpreted consistently: see [101]–[104].

Conclusion and Comment

The Court allowed Mr Owen’s appeal. Its interpretation of CPR 27.9 should be noted by practitioners litigating small claims.

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Whiplash reform: As settlement times rise, the OIC portal remains far from perfect - Matthew Huggett, president of CILEX

03/04/23. In 2021, the Ministry of Justice brought in reforms that increased the small-claims limit for road traffic accidents from £1,000 to £5,000, implemented fixed damages for injuries that last up to two years and asked the insurance industry to set up an online claiming system - the Official Injury Claim Service (OIC).

These changes were made amid considerable concern from across the legal profession about the potential for restricting access to justice for those making injury claims.

CILEX, which has over 4,500 members working in personal injury law, was opposed to the reforms and remains of the view that those claiming should be provided with legal advice and that the fixed tariff of damages is not necessary and overlooks the complexity of each individual case.

A recent survey of our members showed that most disagreed that the OIC had improved access to justice. The majority believed it was “not user-friendly” and felt that its complexity was deterring some people from pursuing claims.

Responding to the Justice Committee’s recent call for evidence on the impact of the reforms, we expressed concern about rising settlement times for those seeking compensation for whiplash injuries using the OIC. Concluding personal injury claims as quickly as possible is important for everyone involved but the most recent OIC quarterly data shows average settlement times steadily increasing, from 45 days in the early days of the OIC to 227 days by the end of 2022.

Whilst we appreciate that the OIC predicted the rise to this point and beyond, we are concerned that this is being seen as the norm, with average settlement times pushing closer to taking three-quarters of a year to resolve. This rise has the potential to add yet further pressure to an already strained legal system.

While the increased use of technology is to be commended, there is a real question over the ability of claimants to engage with the OIC. Our member feedback suggests claimants are not able to effectively collate the evidence required for a claim and that claims are often far too complex and intricate for the average injured person. This is why, despite the OIC being built so that injured people could run their own claims, more than 90% choose to use a lawyer to assist them.

The economics of a system, with no costs recovery – meaning clients have to pay lawyers out of their damages – means that small and medium-sized law firms are dropping out of the whiplash claims market, as the work becomes less financially viable. As the number of providers shrinks, there is a real risk of reduced consumer choice and monopolisation of the market by larger, more equipped firms.

In addition, while some CILEX members felt the OIC provided a platform for parties to focus on negotiation as well as early settlement, it was also noted that it could result in non-standard remedies being overlooked and underemployed.

To mitigate against some of these issues, there needs to be ongoing monitoring to ensure the portal is, and remains, fit for purpose. The effect on access to justice should remain under review, with the potential creation of market monopolies for those offering advice and the question of whether the complexity of the portal is preventing certain members of the public from engaging with the system, being key considerations.

There should also be work put in to create further guidance and signposting to reduce user confusion.

Almost two years on from the implementation of whiplash reforms, a significant amount of work has gone into making improvements to the portal, but the system remains far from perfect.

Access to justice for those injured in road traffic accidents must remain paramount. That means better legal education for the public, improved advice and guidance for those using the portal and ongoing monitoring to ensure that consumer choice is not being compromised.

Matthew Huggett is president of CILEX (Chartered Institute of Legal Executives)

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FREE CHAPTER from 'A Practical Guide to Cross-Border Clinical Negligence Claims' by Dominique Smith

02/03/23. In recent years, it has become increasingly common for consumers to travel abroad for cosmetic surgical and dental procedures. Consumers may be enticed to go abroad from seeing surgical packages advertised on social media, such as TikTok or Instagram, which may be cheaper than private treatment costs in the United Kingdom and may entail a stay at a luxury hotel. Unfortunately, things can and do go wrong. When consumers suffer with complications arising from their procedures or an outcome that they are dissatisfied with, it may be the case that there has been causative negligence by the foreign surgeon and/or clinic such that proceedings are contemplated.

However, cross-border clinical negligence claims can be challenging to handle and bring with them a number of issues. Unlike a standard clinical negligence claim, practitioners often face additional complexities, such as whether England and Wales is the appropriate forum to hear the claim, as well as questions as to what the applicable law of the claim is.

This book provides practical guidance to practitioners handling cross-border clinical negligence claims, covering issues including jurisdiction and applicable law, deaths abroad and inquests, applicable standards, expert evidence, and different types of claim.

CHAPTER TWO – DEATHS ABROAD AND INQUESTS

When an individual dies abroad following a cosmetic procedure, questions will naturally arise as to how the deceased came by their death. If they died during or shortly after the procedure, why did it happen? What caused their death? Were they fit and well before the procedure, or are there concerns that they were never a suitable candidate for surgery to begin with? Are there records substantiating a timeline of what happened and when? If not, why not? These are undoubtedly questions that will be in the forefront of any family’s mind.

To begin with, investigations will need to be undertaken to establish as clearly as possible the circumstances surrounding the deceased’s death. The investigations and their outcomes will be of importance to any family members, potential claimants, and indeed potential defendants. Any investigations will inevitably provide material relevant to any later inquest and/or civil claim but can take a significant period of time to complete, which may result in some delay to later proceedings.

Investigations following the death

A number of investigations may be commenced following the death of an individual abroad. Most commonly, the police in the relevant jurisdiction may open an investigation to establish how the deceased died. This may involve the medical practitioners involved being interviewed or later prosecuted, or there may be scrutiny over the treatment records available. In some cases, the investigation may unfortunately be lacking, leaving the family of the deceased with a number of unanswered questions.

A criminal investigation abroad can bring with it some difficulties. The investigation and any subsequent criminal proceedings that follow in that jurisdiction can sometimes take a significant amount of time. If the family of the deceased are considering bringing proceedings in the courts of England and Wales relating to the death, this can pose issues in respect of limitation. It is therefore pertinent for practitioners to consider at an early stage what the applicable law relevant to any civil claim may be¹, so that decisions can later be made as to whether proceedings should be protectively issued. For example, if it appears that the claim will be governed by Turkish law, rather than English law, practitioners will need to investigate the limitation period under Turkish law for contractual and/or tortious claims so that the claims (when brought) are not out of time. If this is not considered at the earliest stage of litigation, the limitation period could expire before relevant investigations are completed, leaving a claimant in a difficult position.

Post-mortems and repatriation

If the circumstances surrounding the cause of the deceased’s death are unclear, a post-mortem will usually be arranged in the country where the death occurred. It is important to bear in mind that local laws in each jurisdiction will differ, thus it may well be the case that a post-mortem can occur without the permission of the next of kin, or that organs and tissue from the deceased can be retained. Further, toxicology and other test results may not be available in advance of the body being repatriated, which can result in some delays to deciphering the deceased’s cause of death. If a post-mortem is carried out abroad, the report itself (when provided) may require translation and costs may need to be incurred to obtain a translated version.

A family may wish for the deceased’s death to be investigated by a coroner in England and Wales, particularly if they are unsatisfied with the local investigations in the country of death, or the standard of the post-mortem report from the country of death. A coroner in England and Wales is under a duty to investigate a death abroad if the body of the deceased is returned to their area and if the circumstances are such that an investigation would have been conducted if the death happened in England and Wales.² Those circumstances in which a coroner must commence an investigation into a person’s death are set out in section 1(2) of the Coroners and Justice Act 2009, namely if a coroner has reason to suspect that:

• the deceased died a violent or unnatural death;

• the cause of death is unknown; or

• the deceased died while in custody or otherwise in state detention.

If the family of the deceased wish for the death to be investigated by a coroner in England and Wales, not only must the death fall within section 1(2) of the Coroners and Justice Act 2009 to engage the coroner’s duty to commence an investigation, but the deceased must not have been buried abroad or cremated. This is because the body of the deceased must be within the coroner’s area for an investigation to be conducted.³ If the body of the deceased is not in the coroner’s area, or if there is no longer any body following a cremation abroad, it is highly unlikely that any investigation by a coroner in England and Wales (and subsequently any inquest) could ever take place. Consequently, should a family wish to contact their local coroner’s office with regards to a possible investigation into the deceased’s death, arrangements will need to be made for the body to be repatriated.

Repatriation can only occur once the investigations in the relevant jurisdiction have been concluded. As such, a local death certificate will need to be obtained (if issued) once the death has been registered in that country. This again may require translation. In addition, in some jurisdictions, a form of release is required for repatriation to take place. It is important to check what the local requirements are in the country of death when considering repatriation, again to prevent further delays in the coronial process at home.

Prior to repatriation taking place, the body is usually embalmed. Following repatriation, a coroner may organise for a further post-mortem to take place. However, any post-mortem may be affected by the embalming processes that have already taken place, thus the examination may not be as thorough as it could have been (and indeed may be more limited) had no embalming processes taken place.

Following the post-mortem, the coroner’s investigation must be discontinued if the cause of death becomes clear (albeit this will not occur if there remains a reason to suspect that the deceased died a violent or unnatural death or died in custody/state detention) and the coroner does not think it is necessary to continue the investigation.⁴

The listing of an inquest

If the coroner does not discontinue their investigation, an inquest into the death will be listed. Inquests concerning deaths abroad often bring with them an additional layer of complexity, in that relevant documentation and witnesses are usually located abroad. Whilst a coroner will make every effort to obtain information from abroad, there may come a point when the evidence hoped for is still lacking and there would be no useful purpose in deferring the hearing of the inquest any further.⁵

That said, with the involvement of lawyers representing the parties, efforts can be made by interested persons to obtain documentation from their clients to assist in the coroner’s investigation, and families can make submissions as to what documents (such as medical records and the like) they consider should be made available.

Can difficulties arise in an inquest where a death has happened abroad?

An example of the difficulties that may arise in an inquest concerning a death abroad can be seen in Shafi v Her Majesty’s Senior Coroner for East London.⁶ In Shafi, the deceased was a British national, who was holidaying in Dubai at the Burj al Arab Hotel. Following an argument with a chambermaid on 7^th April 2011, he was arrested and taken into custody. He was thereafter placed in solitary confinement and was found dead during the evening of 12^th April 2011. The deceased’s body was brought back to the East London coroner’s area and the coroner assumed jurisdiction to inquire into his death. The deceased’s cause of death was unknown. During the course of the coroner’s inquiries, the coroner sought information from the Dubai authorities through the Foreign and Commonwealth Office.⁷ All items requested were forthcoming, except for details of any CCTV footage from the scene. No CCTV footage or stills were ever produced for the coroner. During the inquest itself, no witnesses from Dubai were called to give live evidence. The coroner gave reasons for his decision to read the statements of those witnesses under Rule 23 of the Coroners (Inquests) Rules 2013, namely that he considered there was “good and sufficient reason to believe the maker of the written evidence will not attend the inquest hearing… they are not compellable”.

An application was subsequently brought by the deceased’s mother for the inquest conclusion to be quashed and for a fresh investigation and inquest to be ordered, raising complaints concerning the insufficiency of the inquiry in relation to the CCTV footage, as well as in relation to the evidence being admitted under Rule 23.

In respect of the CCTV footage, the applicant’s complaints were not accepted by the court. Notably, Lord Justice Bean stated that: “there is only so much that a coroner can do to obtain evidence from a foreign state, however friendly. The coroner has no power to investigate overseas, send investigators overseas, or require police to investigate overseas. Nor can the coroner compel the disclosure of documentation from the overseas country or compel witnesses from the country to attend to give evidence”.⁸

However, the applicant’s complaints as to Rule 23 were upheld. The coroner did not explain what good and sufficient reasons there were, other than there had been some discussions with the authorities in Dubai. No detail was provided as to what those discussions were, nor whom they were with. It was not explained (or indeed clear) whether the witnesses were willing to attend, or whether the state did not wish for them to attend. It is therefore unsurprising that the court considered that the coroner could have invited the witnesses to attend in person, or alternatively, via video link.⁹

Shafi indicates that whilst a coroner should exercise the tools at their disposal to obtain relevant information from abroad, such as by contacting the relevant local authorities and the like, the inability to obtain that evidence will not be a barrier to the holding of the inquest. As a coroner cannot compel disclosure of documentation from abroad, the evidence in the coronial investigation could unfortunately paint an incomplete picture into the deceased’s death.

Giving evidence remotely

Should it be proposed that a witness be called to give remote evidence from abroad at an inquest, consideration should be given as to whether there are any legal complications preventing the witness from doing so. It cannot be assumed that a witness giving evidence from another jurisdiction to an English court can do so without consequence. It may not be permissible, or indeed may be illegal, to do so.

Take the example of a coronial investigation into a death of a British national in a hospital in Antigua. A witness statement has been obtained from the operating surgeon about the circumstances of the deceased’s death, and the coroner and the family of the deceased would like the surgeon to be called to give live evidence at the inquest. However, it is proposed that the surgeon gives evidence from Antigua, due to his clinical commitments. Checks would thereafter need to be made with the FCDO to see if there is any objection at a diplomatic level to the witness giving evidence via remote means to an English court. It may be that permission needs to be obtained from the local courts in Antigua, so that the surgeon can give his evidence from abroad.

For those interested persons whose witnesses are located abroad, it may be useful to consider at an early stage in advance of the inquest whether such permission is needed, so that any evidence in relation to permission being granted is available to the coroner at the pre-inquest review. Without checking with the FCDO whether the witness can give evidence from abroad, a coroner is unlikely to permit them to give their evidence orally via video link. Checking whether permission is required with the FCDO is a straightforward task: one simply needs to email or telephone the office.

Prevention of Future Death Reports

At the conclusion of the inquest, a coroner may proceed to make a Prevention of Future Death Report (“PFD”). The coroner’s duty to make a PFD is triggered where anything revealed by the investigation into the deceased’s death gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and that action should be taken to prevent this.¹⁰ It is important to bear in mind that the PFD does not need to be restricted to matters causative to the death and is not restricted to those persons or organisations who reside in England and Wales, nor is it restricted to interested persons only. Should a coroner proceed to make a PFD, a response must be provided by the individual/organisation subject to the PFD within 56 days of the date on which the report is sent.¹¹

For those acting for the family of the deceased, a coroner may decide to invite submissions as to the family’s views on PFDs, and whom, if anyone, these should be addressed to. If a PFD is made against a clinic or hospital, or if the coroner has made findings in their conclusion about the medical care the deceased received (e.g., blood tests were not performed), these may be pleaded in the particulars of any civil claim. That said, an inquest is not a vehicle to build a civil claim.

For those acting for interested persons in relation to a cosmetic surgery or treatment death abroad, it is pertinent to consider at an early stage what matters are likely to give the coroner concern about the risk of future deaths (if there are any), and what steps have been taken to prevent any further deaths. This may assuage the coroner’s concerns such that a PFD is not necessary. Documentary evidence may be required to assuage any such concerns, which may demonstrate lessons that have been learned or steps that have been taken to prevent another death occurring in similar circumstances. That evidence should be provided to the coroner as soon as possible in their investigation.

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