Jet2 Holidays Ltd v Karl Hughes
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton MR,Lord Justice Hamblen,Lord Justice Flaux |
| Judgment Date | 08 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1858 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/2897 |
| Date | 08 November 2019 |
[2019] EWCA Civ 1858
THE MASTER OF THE ROLLS
Lord Justice Hamblen
and
Lord Justice Flaux
Case No: A2/2018/2897
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NOTTINGHAM DISTRICT REGISTRY
HHJ Owen QC (sitting as a Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Higgins (instructed by Horwich Farrelly Solicitors) for the Appellant
The Respondents made written submissions
Hearing date: 22 October 2019
Approved Judgment
Sir Terence Etherton MR, Lord Justice Hamblen and
This appeal concerns proceedings for committal for contempt brought by the appellant, Jet 2 Holidays Limited, against the respondents, Karl Hughes and Laura Hughes, arising out of claims made by the respondents that they had suffered sickness on a package holiday arranged through the appellant due to the dirty and unhygienic conditions and bad food at the hotel at which they were staying.
It is an appeal from the order dated 13 November 2018 of His Honour Judge Owen QC, sitting as a High Court Judge, dismissing the application of the appellant to amend to add new grounds of contempt and striking out the committal proceedings.
In Liverpool Victoria Insurance Company Ltd v Yavuz [2017] EWHC 3088 (QB) at [148]–[153] Warby J pondered, but did not have to decide, whether certain documents verified by a statement of truth made before proceedings are commenced, including false witness statements, could be the subject of committal for contempt. In this judgment, on the facts of the present case, we hold that a witness statement verified by a statement of truth made by a prospective claimant before the commencement of proceedings in purported compliance with a pre-action protocol (a “PAP”) can give rise to contempt and be the subject of an application for committal for contempt even though, following challenge by the prospective defendant to the truth of the statement, proceedings for substantive relief were in the event never issued.
The background
The respondents booked an all-inclusive 10 day package holiday with the appellant at the Occidental Lanzarote Playa Hotel from 21 December to 31 December 2016.
By letters of claim dated 21 April 2017 the respondents, by their legal advisers, gave notice to the appellant of a claim for damages for holiday sickness under the Package Travel, Package Holidays and Package Tour Regulations 1992 and under the Consumer Rights Act 2015. They alleged that while on holiday they contracted food poisoning as a result of eating contaminated food or drink or swimming in the hotel's insanitary swimming pool.
Under cover of a letter from the respondents' legal advisers dated 2 May 2017 and another dated 27 July 2017 the appellant received respectively a witness statement of the second respondent and a witness statement of the first respondent (“the original witness statements”) in purported compliance with the Personal Injury Claims PAP. Each of the original witness statements was dated 12 April 2017 and was in the usual form used in civil proceedings, save that the heading did not contain the name of a court. In the heading and in the body of each of the witness statements the relevant respondent was described as the “Claimant”. The appellant was described in the heading as the “Defendant”. Each witness statement contained a signed statement of truth.
The original witness statements were similar in content. They stated, among other things: that food was left uncovered for long periods; it seemed that the food was reused on several occasions; the burgers seemed undercooked; there were ants and beetles around the food areas and ants were crawling on the bread; children were being sick in the children's pool and the respondents' child became ill from swallowing the pool water; the respondents started to feel ill on the second day and began being sick on the third day; they were acutely ill for the remainder of the holiday with diarrhoea, stomach pains, vomiting, lack of energy and feeling very weak and were not 100 per cent fit on returning from the holiday; and they believed that their sickness was caused as a result of the undercooked food and unhygienic conditions at the hotel.
The appellant found various images and comments posted by the respondents on social media during their holiday, including Facebook posts, a YouTube video and two Twitter posts, which indicated that the respondents and their children were physically well during the holiday and had an enjoyable time while staying at the hotel.
The appellant rejected the respondents' claims. The respondents did not commence proceedings against the appellant.
The committal proceedings
On 5 February 2018 the appellant commenced proceedings against the respondents under CPR Part 8 seeking permission, as required by CPR 81.18, to commence committal proceedings against the respondents on several grounds, each ground relevant to this appeal relating to each allegedly false statement, verified by a statement of truth, made in each of the original witness statements. The claim form also asked for directions and costs.
The claim form was supported by an affidavit sworn by Alexander Wilkinson, an associate in the appellant's solicitors, setting out the history, exhibiting the social media posts relied upon by the appellant and stating, among other things, that there was a strong prima facie case that the original witness statements were false and that the respondents were in contempt of court and that it would be in the public interest for permission to be granted for committal proceedings to be commenced against them.
Each of the respondents filed an acknowledgment of service on 12 March 2018 stating that they intended to contest the claim. On the same day each of them made a further witness statement (“the further witness statements”) stating that each of the comments in the original witness statements relied upon by the appellant as a ground of contempt was in fact true. The respondents further stated that they had complained to the hotel manager with respect to the unhygienic conditions, quality of the food and the pool; despite their illnesses arising from the unhygienic conditions, they felt that their only option was to make the best of the situation and put up a “front” that they were having a great holiday; and the Facebook pictures did not provide a true reflection of their mood at all times of the holiday.
On 8 August 2018 His Honour Judge Godsmark QC, sitting as a High Court Judge, having heard counsel for the appellant and a solicitor-advocate for the respondents, ordered by consent that permission be given to the appellant to commence committal proceedings against the respondents on the grounds relied upon by the appellant. He also ordered, among other things, that the committal proceedings be listed for a case management conference on 19 October 2018. The proceedings were formally issued on 24 August 2018.
The case management conference took place before Judge Owen, who raised the question whether the court had jurisdiction to entertain committal proceedings in respect of the original witness statements in view of the fact that they had been made otherwise than in connection with extant proceedings and no proceedings for damages had, in fact, ever been commenced. He ordered that issue to be determined as a preliminary issue.
In order to save the contempt proceedings if it should be determined that there was no jurisdiction to hold the respondents in contempt on the basis of the original witness statements since they were not made in any proceedings, the appellant made an application dated 8 November 2018 to add additional grounds of contempt arising from the various statements made in the further witness statements which endorsed the truth of what had been said in the original witness statements.
Judge Owen's judgment
The preliminary issue and the appellant's application to amend came before Judge Owen on 13 November 2018. He delivered a detailed, substantial and impressive immediate judgment, holding both that there was no jurisdiction to find contempt on the basis of the original witness statements and that the application to amend be refused.
In relation to the preliminary issue of jurisdiction Judge Owen said that the basis of the committal application was that the original witness statements were witness statements within CPR 32.14, which provides, so far as relevant, as follows:
“32.14(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
(Part 22 makes provision for a statement of truth.)”
Judge Owen rejected that argument. He said (at [48]) that a statement of truth within the ambit of CPR Pt 22 is concerned with a statement which is made and presented to the court within the meaning of CPR 32.14; and that, having regard to the terms of CPR 22.1.1(c), 32.4(2) and 32.8 and the Practice Directions accompanying Pt 22 and Pt 32, it was clear that any such witness statement would be served within actual proceedings which have been started within the meaning of CPR 7.2.
He said (at [50]) that the outstanding grounds of alleged contempt (two having been withdrawn by the appellant) did not have anything but the slimmest and tenuous relationship with the course of justice or the administration of justice or the notion of justice as a continuing process, being formulated by potential litigants for the purpose of intimating a claim in the hope of either an admission of liability or an offer of settlement.
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