ST v BAI (SA) trading as Brittany Ferries
| Jurisdiction | England & Wales |
| Judge | Lady Justice Carr,Lord Justice Popplewell,Lady Justice Simler |
| Judgment Date | 27 July 2022 |
| Neutral Citation | [2022] EWCA Civ 1037 |
| Docket Number | Case No: CA-2021-000709 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1037
Lady Justice Simler
Lord Justice Popplewell
and
Lady Justice Carr
Case No: CA-2021-000709
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
ADMIRALTY COURT (QBD)
Mr Justice Andrew Baker
[2021] EWHC 2228 (Admlty)
Royal Courts of Justice
Strand, London, WC2A 2LL
Giles Mooney QC and Linda Nelson (instructed by Aegis Legal) for the Appellant/Claimant
Sarah Prager and Henk Soede (instructed by Tozers LLP) for the Defendant/Respondent
Hearing date: 19 July 2022
Approved Judgment
This judgment was handed down remotely at 10am on Wednesday 27 July 2022 by circulation to the parties or their representatives by email and by release to the National Archives.
Introduction
This is a second appeal arising out of an application by the Appellant for an extension of time in which to serve a claim form pursuant to CPR 7.6(2).
The Appellant alleges that she was the victim of a sexual assault whilst in her cabin on board the cross-channel ferry ‘Pont Aven’ (“the ferry”) sailing from St Malo to Portsmouth on 16 March 2018. The ferry was operated by the Respondent, BAI (SA) trading as Brittany Ferries (“BAI”). She brought civil proceedings in negligence against BAI on the basis that her cabin door lock was faulty at the time, allowing an unknown assailant to enter the cabin. She claimed damages for personal (including psychiatric) injury and associated losses. The relationship between BAI, as the ferry operator, and the Appellant, as passenger, was governed by the Athens Convention 2002. As such, it was subject to a two-year limitation period.
BAI was domiciled in France with an address for service of proceedings in Roscoff. Service in France could be effected without permission (pursuant to CPR 6.33 and the Brussels Regulation Recast, as then still in force). By virtue of CPR 7.5(2) the claim form had to be served within six months of issue. Proceedings were commenced on 14 February 2020 and thus service had to be effected by 14 August 2020. On 4 August 2020 the Appellant applied for an extension of time for service of the claim form (to 14 December 2020) (“the claim form application”).
The claim form application was granted by Mr Admiralty Registrar Davison (“the admiralty registrar”), on the papers, on the following day, 5 August 2020. He maintained that decision (on an application by BAI to set the order aside) on 26 February 2021 (“the first judgment”). On appeal, by a judgment dated 16 July 2021 (“the appeal judgment”), the Admiralty Judge, Mr Justice Andrew Baker (“the judge”), overturned that decision. The question for this court is whether he was right to do so.
The Appellant raises two grounds of appeal:
i) Ground 1: it is said that the judge misdirected himself as to the correct approach to consideration of an application under CPR 7.6(2) and erred in finding as a matter of fact that there was ‘no reason’ for the Appellant not being able to serve in time;
ii) Ground 2: it is said that the judge wrongly substituted his own assessment of the reasons why the claim form could not be served in time for that of the admiralty registrar.
The facts
The detail of the chronology matters and is therefore set out below.
In December 2019 the Appellant, then a 69 year old retired former police officer, instructed Aegis Legal (“Aegis”) to pursue her claim. A full pre-action letter of claim was sent on 12 December 2019. By email sent on 30 January 2020 BAI's insurers responded. Liability was denied. The basis of the denial was that the assault was not a reasonably foreseeable consequence of any defect in the lock, that the Appellant had been asleep at the time (and so could not have apprehended any violence) and that her assailant was so drunk as to lack what was said to be the necessary intention. On 10 February 2020 BAI's insurers admitted in correspondence that there had been “an issue” with the cabin door lock.
As set out above, proceedings were commenced on 14 February 2020, just over a month before the relevant limitation period expired (on 16 March 2020). The value of the claim was then estimated at between £10,000 and £15,000. Under CPR 7.5, service had to be effected by 14 August 2020.
In early March 2020 Ms Rachel McKenna (“Ms McKenna”), a solicitor at Aegis, took over conduct of the claim from another fee earner taking maternity leave. Later that same month, Mr Barry Hayes (“Mr Hayes”) of Tozers LLP (“Tozers”) took over the correspondence on behalf of BAI. He requested a copy of the issued claim form, together with proposed particulars of claim, if available. Further, he asked for sight of the medical evidence “as an integral part of the consideration of liability”.
On 8 April 2020 Ms McKenna provided Tozers with a copy of the claim form, expressly for information purposes only, and not by way of service. Ms McKenna was aware that, under CPR 7.4(1), there is an obligation to serve particulars of claim within 14 days of service. Further, under CPR 16 PD 4.3, any medical evidence on which the Appellant relied had to be attached to or served with the particulars of claim.
Efforts to obtain the Appellant's medical records (in England and France) continued, including her psychological counselling records. Ms McKenna also tried to identify a suitable medical expert, an exercise complicated by the conditions of the Covid pandemic. On 6 May 2020 Tozers requested an update on the medical evidence and for particulars of claim. Ms McKenna responded, referring to the difficulties being encountered and stating that, without medical evidence, she could not provide draft particulars of claim. On 14 May 2020 Aegis asked Tozers if it would agree to an extension of time for service of the particulars of claim. On 15 May 2020 Tozers wrote, suggesting that the matter was being allowed to drift. Mr Hayes stated that he was taking instructions on the request for an extension of time. He pressed again for the medical evidence.
On 18 May 2020 Ms McKenna was informed that the selected medical expert could not assist. She commenced the search for a new one. Instructions to a fresh expert, Dr Rachel Gibbons (“Dr Gibbons”), a consultant adult psychiatrist, were sent on 27 May 2020. On the same day, Ms McKenna repeated her request to Tozers for consent to an extension of time for service of the particulars of claim.
On 3 June 2020 the Appellant applied for an extension of time for service of particulars of claim, citing delays in obtaining medical records and arranging for expert medical assessment. That application was granted on the papers on 4 June 2020, extending time to 14 December 2020. The order was sealed on 8 June 2020.
At the same time, on 4 June 2020, Tozers, apparently unaware that the application had been granted, wrote to Aegis suggesting that such an application was a waste of time and money, given that the claim form was for service out of the jurisdiction, had not yet been served and six months was allowed for service. Mr Hayes said that he would need to see the evidence in support of the application before considering and communicating BAI's stance.
On 10 June 2020 Ms McKenna wrote to Tozers asking for confirmation (by return) whether it was instructed to accept service of the claim form on behalf of BAI. Tozers did not answer. The enquiry was repeated on 11 and 26 June 2020. Again, there was no response — until 15 July 2020, when Tozers indicated that the proceedings would need to be served out of the jurisdiction.
Aegis instructed counsel to draft particulars of claim on 2 July 2020, in anticipation of receipt of a medical report. On 16 July 2020 Aegis received Dr Gibbons' expert medical report. Dr Gibbons concluded that the Appellant was suffering from moderately severe posttraumatic stress disorder, triggered and caused by the alleged sexual assault. The Appellant was to continue to take anti-depressant medication and undergo therapy. A full recovery would not be possible until the litigation was concluded. She would be psychologically vulnerable in the future. A copy of Dr Gibbons' report was sent to and received by Tozers on or about 22 July 2020.
At the same time as sending the report across to Tozers, Ms McKenna asked whether Tozers would “now” confirm that it was instructed to accept service. She also invited BAI (not for the first time) to admit liability in order to allow a swift and amicable resolution of the claim. The enquiry into service was met with silence.
Ms McKenna had meanwhile been attempting to contact the Foreign Process Service, without success until 23 July 2020, in order to make enquiries about the options for effecting service in France. Having spoken to them on 23 July 2020 Ms McKenna had concerns about the effect of the Covid pandemic on postal services and the availability of the foreign process unit. She therefore concluded that service under Article 15 of the EU Service Regulations would be preferable. To this end, on the same day, she engaged Portsea International Security & Intelligence Agency (“Portsea”) to advise and assist with service in France if necessary. Mr Michael Warburton (“Mr Warburton”) of Portsea confirmed to Ms McKenna that he had capacity to serve by 14 August 2020. This was, he said, “plenty of time”. He asked to be sent details of the claim and brief details of the background. He would liaise with his partner, Graham Dooley, and revert to Ms McKenna on costs and steps to be taken.
On 28 July 2020 Mr Warburton duly emailed Ms McKenna stating:
“I have discussed the case with Graham and also our official translator who is based in France. He explained that it would need to be translated into French...
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