Lisa Pal v Dr Luc Damen
| Jurisdiction | England & Wales |
| Judge | Master Cook,Master David Cook |
| Judgment Date | 05 May 2022 |
| Neutral Citation | [2022] EWHC 4697 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2020-004679 |
Neutral Citation Number: [2022] EWHC 004697 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master David Cook
Case No: QB-2020-004679
Matthew Chapman QC (instructed by Irwin Mitchell) for the Claimant
Henry Morton Jack (instructed by DWF Law LLP) for the 1 st Defendant
Lucy Wyles QC (instructed by Kennedys Law LLP) for the 2 nd Defendant
Hearing date: 31 March 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 31 March 2022 I heard applications made by each of the Defendants pursuant to CPR 11 disputing the jurisdiction of the court to try this claim. This is my judgment on the applications.
The Claimant is a UK national domiciled within the jurisdiction of this Court. On 26 May 2016 she underwent elective cosmetic (breast implant) surgery at a clinic operated by the Second Defendant in Genk, Belgium. The surgery was caried out by the First Defendant, who is a consultant plastic surgeon, domiciled in Belgium. I will refer to the Defendants as the “Clinic” and the “Surgeon”.
The Claimant's case is that her surgery was performed negligently and that such negligence has caused her to suffer personal injury and loss and expenses. The claim is advanced in both tort and contract. Proceedings were issued on 29 December 2020 and served on the Clinic and the Surgeon in May 2021. The claim was therefore issued prior to the end of the implementation period established by the EU Withdrawal Agreement.
Jurisdiction — the legal background
By Article 4 (1)(b) of Regulation EC No 593/2008 [Rome 1] the applicable law to the claim in contract is Belgian law as both the Clinic and the Surgeon have their habitual residence in Belgium.
By Article 4(1) of Regulation EC No 846/2007 [Rome 2] the applicable law to the claim in tort is Belgian law as the damage giving rise to the claim occurred in Belgium.
The issues of Jurisdiction in this case are governed by Regulation EU No 1215/2012 [Brussels recast]. The general rule set out in Article 4 is that persons domiciled in a Member State shall be sued in the courts of that Member state. This general rule is subject to the exceptions set out in Articles 7 to 26. The claim in tort is governed by Article 7(2) which provides:
“ A person domiciled in a Member State may be sued in another Member State:
..in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;”
The claim in contract is governed by Article 17(1) which provides that:
“ In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 6 and point 5 of Article 7, if:
…
c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.”
In the case of consumer contracts Article 18(1) provides that:
“A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled.”
By the time of the hearing before me it was accepted by Mr Chapman QC that the Claimant was unable to rely on Article 7(2) as both the events giving rise to the damage and the place where the direct and immediate damage occurred was Belgium. It was also accepted by Mr Morton Jack and Ms Wyles QC that the Claimant had entered into a consumer contract. The issue between them was whether their respective clients were parties to the contract.
An application made under CPR Part 11 is not a trial and ought usually to proceed on the basis of written evidence and the parties' submissions. In light of the limitations inherent in this interlocutory process, the Court should not express a concluded view as to the merits (particularly where the issues relevant to jurisdiction are issues that may also arise at trial: see, Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547, 555E – G per Waller LJ (CA) and Dicey, Morris & Collins on The Conflict of Laws (15 th ed, 2012), paras 11–146 – 11–147).
The burden of proof is on the Claimant to establish a jurisdictional gateway. The test is whether the Claimant has “the better of the argument” on the facts going to jurisdiction see, Brownlie v Four Seasons Holdings [2017] UKSC 80 at para 7, affirmed and reformulated in Goldman Sachs v Novo Banco [2018] UKSC 34 at para 9)
“… (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.”
Evidence
The following witness statements of fact were before the court,
i) For the Claimant: statement of the Claimant dated 8 March 2022 and Cheryl Palmer Hughes dated 9 March 2022.
ii) For the First Defendant the statement of Richard Marshall dated 2 September 2021
iii) For the Second Defendant statement of Maria Spronken dated 14 February 2022, the statement of Sharon Mohamed dated 20 June 2021 and supplemental statement of Maria Spronken dated 16 March 2022.
The following expert evidence was before the court,
i) For the Claimant the report of Paul Henry Delvaux dated 8 March 2022.
ii) For the First Defendant the report of Dirk Steyvers dated 14 February 2022 and supplementary report dated 18 March 2022.
iii) For the Second Defendant the report of Stephen Beer dated 15 February 2022 and supplementary report dted22 March 2022.
The contract — relevant factual background
The following relevant background can be extracted from the witness statements and does not seem to be the subject of any substantial dispute between the parties.
The Claimant's account is that in March 2016 she discovered the web site for the Clinic at www.wellnesskliniek.com whilst researching a place to undergo a breast enlargement procedure. She was impressed by the comparatively good value of the procedures on offer, the before and after photographs on display and the glowing reviews from past patients.
On 1 st April 2016 the Claimant followed a link from the web site and completed an online reservation form. She was required to give her bank account details to pay a €500 reservation fee. She could not remember seeing any Terms and Conditions and cannot remember having been sent any separately. She recalls that she was not allocated a specific surgeon at this stage.
On 4 April 2016 the Claimant received an e-mail response from the Clinic confirming receipt of her deposit and confirming that an appointment had been made with the Surgeon for a consultation on 25 May 2016 and for surgery the following day. A pre-operative questionnaire was also attached.
On 25 May 2016 the Claimant travelled to Belgium and attended the clinic for her consultation with the surgeon for which she paid by bank card.
On 26 May 2016 the Claimant attended the Clinic for her surgery. She recalls paying the balance of the cost of the surgery and completing documentation which she understood to be a consent form although she has no clear memory of this. Following surgery the Claimant was discharged with a post-operative care information factsheet and returned home to the United Kingdom.
Ms Spronken provided detailed background about the Clinic and its procedures. The Clinic was established in 1996 and is a facilitator of supporting services to physicians. The Clinic is not involved in the practice of medicine and does not employ physicians.
In this case the Clinic provided the premises comprising waiting rooms, consultation rooms, operating theatres and recovery room known as the Wellness Kliniek which also included the website www.wellnesskliniek.com.
Ms Spronken stated that the Claimant would have seen the appointment terms and conditions on the web site and would have had to tick a box to indicate that she had read them when making her request for her consultation. She provided a copy of the terms and conditions which contain the following;
“— Medical Error: Physicians are liable for any damages suffered by a patient as a result of the physician's failure to respect his/her obligations stated in the treatment agreement.
— Medical Accident: Birand NV and the attending physicians cannot be held liable, under any contractual and/or non-contractual clause whatsoever, for damage resulting from a medical accident that occurs during in the procedure or during in the aftercare period, which is deemed, by the attending physician and the “Wellness Clinic”, to be a situation of force majure. Damage resulting from a medical accident is understood to be damage that is not the result of a medical error (including complications, unexpected complications) in accordance with scientific understanding at the...
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Cross-Border Clinical Negligence & The "Local Safety Standards" Defence
...Claimant consumer/patient contracted: whether the performing surgeon or the clinic or both (see, for example, Pal v Damen & Others [2022] EWHC 4697 (QB) where Belgian law was applied to this contractual conundrum). However, it is rare to find an example of a case where an alleged incident o......