Costs capping order refused in Malawian tea plantation litigation

A fascinating costs decision has just been released (please bear with me) in Thomas & Ors v PGI Group Ltd [2021] EWHC 2776 (QB). Kate Boakes is one of the counsel team representing the Claimants.

31 women employed at tea and macadamia nut plantations in Malawi allege sexual assault, harassment, and other types of sexual discrimination at the hands of male colleagues.

They bring claims in England against their employer’s parent company, which they say owed them a duty of care on the basis that it promulgated standards and exercised control over the employer. The parent company denies liability.

If the claims were successful, they would only entitle the Claimants to fairly modest damages. The Defendant said they would amount to around £10,000 each and £310,000 altogether (although the Claimants disagreed with those figures).

The parties filed costs budgets. The Claimants estimated their total costs of the proceedings at £3,177,806.76.

The Defendant asked the court to make a costs capping order limiting the future costs of the Claimants to £150,000.

It argued that incurring over £3 million in costs in order to recover only £310,000 in damages was disproportionate. It was also unfair, since the Defendant was unlikely to recover any costs at all even if they won owing to the effect of QOCS.

The Claimants’ response was striking: if the costs capping order were made, then they would in practice have to abandon their claims.

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When in Rome … Guidance from judges applying Italian law

Two recent decisions – both coincidentally dealing with the application of Italian law in the English courts – have given some useful general indicators about how the courts will approach the determination of disputes concerning foreign law.

In River Countess BV & Ors v MSC Cruise Management (UK) Ltd [2021] EWHC 2652 (Admlty), Andrew Baker J considered a claim for damages arising out of the collision of two cruise ships in one of Venice’s major canals.

Meanwhile, in Deutsche Bank AG London v Comune di Busto Arsizio [2021] EWHC 2706 (Comm), Cockerill J dealt with a case concerning the very different situation of swaps entered into by a small Italian local authority with Deutsche Bank.

English lawyers dealing with cases governed by Italian law would be well advised to read the useful summaries of the Italian legal system and Civil Code in these cases.

For the purpose of this blog, I am drawing attention to just two things: (i) the comments about how judges will resolve battles between foreign law experts and (ii) the analysis of whether an English court can depart from decisions of foreign courts – even, in this case, the ultimate appeal court of Italy.

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Local standards in skiing claims

My thanks to Tom Collins of 1 Chancery Lane for letting me feature this article about a recent package travel case in which he successfully appeared on instructions from Michael Gwilliam of Plexus Legal LLP.

The article first appeared in 1 Chancery Lane’s Weekly Roundup, which can be accessed here.

In Doyle v Rayburn Tours Limited (Unreported) Birmingham County Court, 5 October 2021 (HHJ Truman), Tom acted for the tour operator in a claim brought by a teacher who had suffered a serious knee injury during a school ski trip to Italy.

It is of particular interest to this blog because it appears to be one of the first decisions grappling with the more permissive approach to local standards evidence seen in the decision of Marcus Smith J in Morgan v TUI UK Ltd [2020] EWHC 2944 (Ch) (see our previous blog on that case here).

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Griffiths overturned by Court of Appeal majority

In Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442, the Court of Appeal has handed down judgment on the question of whether the court can evaluate and reject an “uncontroverted” expert’s report, and if so, in what circumstances.

The background to this holiday sickness case will by now be familiar to travel lawyers: we also previously discussed the practical consequences for litigation of this kind of Martin Spencer J’s judgment below in a previous blog post here.

In this article, Sam Cuthbert summarises and comments on the new approach taken by the Court of Appeal.

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Court of Appeal: strike out stands in Nigerian oil spill “representative action”

The Court of Appeal has upheld a decision that claims pursued in a “representative action” on behalf of over 28,000 members of the Bonga community in Nigeria affected by an oil spill will be struck out.

This was a claim on behalf of individuals and communities based on the coast of Nigeria spanning Bayelsa State and Delta State.

It relates to the impact of an oil spill in 2011. In general terms, the Claimants allege that responsibility for the spill and its consequential impact lay with companies forming part of the Shell group. The Defendants deny liability.

We previously blogged about various issues decided by the trial judge (including his decision to strike out the representative aspect of the claims) here and here. In January, we blogged on the Court of Appeal’s judgment dealing with limitation issues in the same litigation.

There are two key points to note from the Court of Appeal’s new judgment.

First, the judgment sets out in very clear terms the highly restrictive nature of the CPR r. 19.6 representative action and its general unsuitability for large-scale environmental litigation (except perhaps in a limited category of cases, discussed below).

Second, it illustrates the need for legal representatives to take the utmost care when deciding how to formulate proceedings in multi-party litigation in circumstances where limitation issues may make it impossible to fix procedural problems at a later stage.

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Lord Frost: changes incoming for retained EU law

A major issue for English civil lawyers since Brexit has been making sense of the complex new idea of “retained EU law”.

Sam Cuthbert wrote an excellent summary of the key points in a blog back in January of this year. 2TG have recently released a detailed analysis of the many difficult questions about this area that will need to be answered in future cases.

But Lord Frost, the Government’s former chief Brexit negotiator, has indicated in a statement to the House of Lords yesterday that it is already time to “revisit this huge, but for us, anomalous, category of law”.

There are apparently two purposes of this review.

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Can a defendant who unnecessarily submits to the jurisdiction be an “anchor defendant”?

This is a short blog considering a fairly niche but potentially important issue. The situation is this:

The Claimant brings a claim against a foreign-domiciled D1, who submits to the jurisdiction. In fact, if D1 had not submitted, then there would not have been any valid jurisdictional basis for the claim against D1.

Can D1 be used as an “anchor defendant” for the purpose of the “necessary or proper party” service gateway in a claim against D2?

This might happen in one of two situations:

  • D1 makes a mistake: perhaps it fails properly to assess the jurisdictional position before submitting; or perhaps its representatives accidentally take some step in the litigation that amounts to a submission.
  • The Claimant and D1 collude to bring about a situation where they and D2 are all parties to the same litigation.

D2 suggested that the second situation was occurring in ID v LU & Anor [2021] EWHC 1851 (Comm). D1 could have insisted on being sued in its home courts in Ukraine under art. 4 of Brussels I (Recast), but apparently chose not to in order to engineer a situation where D2 were also before the court.

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Foreign law evidence: think about the practical side

It is one thing to follow the formalities to get expert foreign law evidence before the court in the first place (and all litigants should, of course, make sure that they follow the proper formalities).

But canny litigants need to go a step further and think about the practicalities of how their expert will give evidence and what impact this might have on the judge’s perception of the expert and the evaluation of their evidence.

This factor has always been relevant, but it has become especially important in the context of increasing reliance on remote or hybrid hearings where evidence may be given by individuals who are not physically present in the courtroom.

In Emerald Pasture Designated Activity Company & Ors v Cassini SAS & Anor [2021] EWHC 2443 (Ch), HHJ Kramer made some useful comments showing that considerations of this kind do play an active role in how judges approach foreign law disputes. The take-away from this blog is that litigants need to give real thought to the practicalities well in advance of any hearing.

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Success for pursuer in Scottish fatal diving accident claim

In this blog post, Lois Aldred of 12 King’s Bench Walk considers a new and perhaps conclusive development in the long-running litigation in Warner v Scapa Flow Charters [2021] CSOH 92.

The case is best known for its trip to the Supreme Court on limitation in 2018. Readers may recall that the Supreme Court allowed the claim brought for the benefit of Mr Warner’s son to proceed despite it being issued after the two-year limitation period of art. 16(1) of the Athens Convention.

The law of the forum governing a period of “suspension” or “interruption” of a limitation period under art. 16(3) of the Athens Convention was held to be wide enough to include Scottish legal provisions postponing a limitation period in the claim on behalf of the son, so that it was allowed to proceed.

The trial of the claim has now been heard by the Outer House of the Court of Session, the decision giving some comfort to the family of Mr Warner who sadly died following a diving trip out of the vessel (MV  Jean Elaine) skippered by the Defenders.

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