This blog is by Oliver Rudd of 12 King’s Bench Walk

The importance of (i) drafting a properly formulated application notice; and (ii) a thorough consideration of all extant contractual documentation and related evidence were starkly highlighted in this case in which the Court held that it did have jurisdiction to entertain Part 20 proceedings following alleged negligent medical treatment in Germany. The Court also gave useful guidance as to the interpretation of art. 8(2) of Brussels Recast (EU 1215/2012).

The case was originally brought on behalf of the Claimant who had suffered brain damage at birth. At all material times his father was serving in the UK armed forces in Germany. The Claimant alleged that the Defendants were responsible for the provision of midwifery and associated services and were vicariously liable for the actions of the midwife in this case.

The MoD denied liability and, with the First Defendant, initiated Part 20 proceedings alleging that because the Third Party (“Viersen”) was responsible for the obstetricians and the direct management of the hospital and midwife, Viersen was vicariously liable for any negligence so proved.

Details of the relationship between the parties, tender process and steps in negotiations which led to the provision of medical service are set out within the judgment in some detail, albeit for the purposes of this blog it is sufficient to highlight: –

  • The agreement for the supply of medical services was between Viersen and a London Hospital Trust (“the Trust”) as opposed to the named defendants;
  • The agreement contained a jurisdiction clause in favour of the German Courts upon which Viersen sought to rely to argue that the English court had no jurisdiction to hear Part 20 proceedings;
  • Viersen similarly sought to rely on art. 8(2) of Brussels Recast to support their position in relation to jurisdiction. Viersen had not identified this argument within their application notice.

The issues for the Court were thus whether (1) Viersen could raise an issue under art. 8(2) despite not having referred to it in its application notice; (2) the Court had jurisdiction under art. 8(2); (3) the jurisdiction clause was binding on the Defendants.

Considering these 3 issues in turn, taking a generous, if not pragmatic approach, it was common ground that Viersen was, in effect, seeking to amend its application notice. Although a party seeking a late amendment faced a heavy burden to persuade the court to permit it, to the undoubted relief of Viersen’s legal advisors (and, I suspect, that of their professional indemnity insurers) Viersen were permitted to raise this issue.

Neither party was seeking to adduce evidence in respect of this issue, and it was therefore solely an issue of law. It would not increase the length of proceedings. The defendants had considered the point when they issued Part 20 proceedings and both sides were prepared and able to argue the issue.

Turning to the question of jurisdiction under art. 8(2), it was held that the requirements of the CPR had to be satisfied; however matters had to be assessed, at least in part, by reference to autonomous principles of European law.

Importantly, there had to be a close connection between the original and Part 20 proceedings per SOVAG”Schwarzmeer und Ostsee Versicherungs-Aktiengesellschaft v If Vahinkovakuutusyhtio Oy (C-521/14) EU:C:2016:41, [2016] Q.B. 780.

The issue of close connection was one for the national Court and could exist where it was necessary to hear both matters together to avoid the risk of irreconcilable judgments. The connection had to be such that hearing the matters together was rational and necessary for the harmonious and efficacious administration of justice following Barton v Golden Sun Holidays Ltd (In Liquidation) [2007] EWHC 3455 (QB), [2007] I.L.Pr. 57 and Shetty v Al Rushaid Petroleum Investment Co [2011] EWHC 1460 (Ch).

Jurisdiction was successfully established in that Part 20 proceedings were permitted by the CPR and were clearly closely connected with the initial proceedings. There was a distinct risk of irreconcilable judgments were this not permitted. For example, the Courts in England and Germany might come to different conclusions concerning legal responsibility for the actions of the midwife, on issues of causation, or in apportioning blame as between the midwife and obstetricians.

In relation to the jurisdiction clauses, the Defendants were also successful. As set out above, Viersen had contracted with the Trust as opposed to the Defendants. There was nothing to show that the Defendants made any representation by words or conduct that the Trust was negotiating not only for itself, but also for them. Instead, an analysis of what had occurred was consistent with there being a chain of independent contractors.

It was also of note that in Viersen’s written evidence before the Court, there was nothing to show that Viersen had thought distinctly about the problems posed by third party proceedings. This omission clearly did not aid Viersen’s position.

The terms of the agreement were inconsistent with either Defendant having represented that the Trust might bind them. Instead the recitals made it plain that the Trust was contracting separately with the MoD, and the contract made the Trust’s sub-contractor status clear.

Finally, although it was possible for the jurisdiction clause to be considered separately from the main agreement, there was nothing on the facts before the Court to suggest the jurisdiction clause was to be severed from the main agreement.

Of course, cases of this nature are likely to be fact specific. However, the importance of forensic analysis of all contractual documentation in cases where exclusive jurisdiction clauses are present is vital. As all litigators should be aware, and was clearly apparent in this case, the devil really can be in the detail.

Finally, as a general health warning, making an application on incomplete grounds and with incomplete evidence is, even with a generous court, never advised.

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