As noted in our previous blog entry discussing Clarke v Kaleciński, the growing phenomenon of UK residents travelling abroad for cosmetic surgery is, sadly, a fertile ground for clinical negligence claims. There are often major arguments to be had at the outset of such cases about which country’s courts have jurisdiction to hear the case and which is (or are) the right party (or parties) to sue. The case of Pal v Damen is a good example of this type of preliminary skirmish.
Summary of the Facts
In March 2016 the Claimant, Ms Pal, was researching where she might be able to undergo a breast enlargement procedure. She discovered a website for a clinic in Genk, Belgium. On 1 April 2016, she followed a link from the website, completed an online reservation form and paid an online deposit. On 4 April 2016 she received a confirmation and an appointment for a consultation with the surgeon (Dr Damen) on 25 May 2016 with the procedure to be carried out the next day. She duly attended, paid the balance of the fees, signed an agreement with the surgeon, and underwent the surgery. Her case is that the surgery was carried out negligently.
The Claimant sued both the surgeon and the clinic in contract and in tort. Proceedings were issued in England in December 2020. This was before Brexit Day. The relevant provisions of EU law still therefore applied. The Brussels Recast Regulation determined issues of jurisdiction. The Rome I and Rome II Regulations determined the applicable law.
The surgeon and the clinic both disputed the court’s jurisdiction to hear the claims. The matter came before Master Cook to determine the jurisdiction challenge.
It was common ground that Belgian law applied to the claims in contract and tort (under Rome I and Rome II Regulations).
It was also agreed that the Claimant had entered into a consumer contract for the surgery. Article 18(1) of the Brussels Recast Regulation therefore permitted her to sue “the other party” to such a contract in her jurisdiction of domicile – England. Article 18(1) was the only jurisdictional rule in the Brussels Recast Regulation which would permit the Claimant to bring her claim in England, as the rules about claims in tort pointed to jurisdiction in the Belgian courts.
The principal issue between the parties was therefore agreed to be which defendant (clinic or surgeon) was, in Belgian law, the other party to the consumer contract for the medical treatment.
In a challenge to jurisdiction the burden is on a claimant to establish a “good arguable case” for the existence of a jurisdictional gateway. This is a very particular standard. It means a “plausible evidential basis”. If there is an issue of fact (or some other reason to doubt that the gateway applies) the court must take a view of the material available if it can reliably do so. But if no reliable assessment can be made at the interlocutory stage, then there is a good arguable case if there is a “plausible (albeit contested) evidential basis” for it (Goldman Sachs v Novo Banco  UKSC 34).
The Claimant asserted that there was a plausible evidential basis for saying that the Claimant had contracted with the clinic for the treatment. Alternatively, if it were difficult to reach a concluded view, the court could determine that there was a plausible (albeit contested) evidential basis for claims against both defendants which should therefore both be allowed to go to trial.
The clinic and the surgeon, perhaps unsurprisingly, each asserted that the Claimant’s contract was with the other.
It being an interlocutory application, there was no oral evidence. Each party provided witness statements and written expert evidence from experts in Belgian law.
The court found that the Claimant established a good arguable case for the existence of a contract for medical treatment between her and the surgeon. The court therefore had jurisdiction over this claim. By contrast, the Claimant failed to establish a contract with the clinic to this standard. The court therefore did not have jurisdiction over this claim.
The contractual documentation was ultimately determinative. The Claimant was not able to dispute (because she could not remember either way) the evidence from the clinic. This indicated that the Claimant would have been provided with (and would have to have agreed to) its terms and conditions when using the website and booking the initial appointment.
These terms and conditions provided that the surgeon was liable for any damages suffered by the patient as a result of breaches of contract by him. The clinic, by contrast, was said by the terms to provide only “the infrastructure where physicians can practice [sic] their profession – [it] is not a party to the treatment agreement between the physician and patient”. The Claimant had the right to choose the surgeon or not go ahead with the procedure having met the surgeon at the initial consultation.
The court further found that the agreement signed by Claimant with the surgeon before the procedure was not simply a consent form but rather a treatment agreement. This further suggested that the Claimant’s contract was with the surgeon rather than the clinic. This analysis was also consistent with the agreement between the clinic and the surgeon (although this was not a document the Claimant would have seen herself before contracting). This provided that the surgeon bore “full medical and civil liability for the treatment of [his] patients”.
This was not a case where there was a plausible (albeit contested) evidential basis for both defendants being the other party to the contract. Rather, the court found, there was “only one logical result on the basis of the contractual documentation” – the contract was with the surgeon.
Daniel Clarke’s comment
Daniel, a barrister in our Clinical Negligence and Travel teams, commented on the case as follows:
This is another case, like Clarke v Kaleciński, illustrating the importance of the special regime for consumer contracts as a means of establishing jurisdiction in England. Were it not for those rules, it would probably not have been possible to establish jurisdiction in the English courts in this case.
Interestingly, it was agreed by the parties that the issue was who was the contracting party under Belgian law and the case was decided on this footing. It might have been said that, strictly speaking, it was an autonomous matter of EU law. The distinction is unlikely to have affected the outcome here but perhaps it might in other cases.
In Pal, the proceedings were issued just before the end of the Brexit transition period. At the end of that transition period, the UK fell out of the Brussels Recast Regulation regime. How would this affect a litigant like Ms Pal were the same facts to be litigated under the current law?
The first point to note is that it would probably still be open to a claimant such as Ms Pal to rely on essentially the same jurisdiction rules concerning consumer contracts. This is because the rules have, exceptionally, been transplanted from the Brussels Recast Regulation, almost word-for-word, into English statute (see sections 15A-E of the Civil Jurisdiction and Judgments Act 1982) post-Brexit. This includes an obligation on the courts to “have regard to” the pre-Brexit CJEU case law on the interpretation of the rules.
In a departure from the usual rules, where a claimant relies on these recently transplanted rules, they do not need to seek the court’s permission to serve proceedings out of the jurisdiction (CPR r6.33(2)). It has yet to be established whether a defendant served in this way can then subsequently resist jurisdiction on forum non conveniens grounds. Dicey, Morris & Collins suggest that the answer is, in theory, yes, but that it will be a rare case where the court will decline jurisdiction on this basis when a claimant has established jurisdiction on these grounds.
However, the position has changed significantly in other respects post-Brexit. Under the Brussels Regulation, a claimant usually had the right to sue the insurer of a tortfeasor directly in his own jurisdiction (the so-called Odenbreit jurisdiction). Indeed, this was, it appears, one of the grounds of jurisdiction in Clarke v Kaleciński. This right has weakened. As things stand, there is no equivalent right to sue a foreign insurer in one’s country of domicile. A claimant wishing to do so must overcome the forum non conveniens hurdle and demonstrate that England is clearly and distinctly the more appropriate forum for trial.
In other ways the position of Claimants such as Ms Pal may have improved. As seen above, under the pre-Brexit law, the only route to English jurisdiction probably lay in the consumer contract provisions. Post-Brexit, a claimant can potentially rely on other grounds of jurisdiction. In English law, the gateways under CPR, PD 6B, especially the tort gateway, are broad. Gateway (4A) also allows for a claim falling within a gateway and arising out of the same or closely connected facts to be effectively “tacked on”. But these grounds are not straightforward. A claimant must still overcome the forum non conveniens hurdle. However, from the perspective of claimants in Ms Pal’s positions, at least the possibility is now there.
Another notable feature of the case is the court’s stern criticism of the written evidence of the Belgian law expert instructed by the surgeon. The court determined that it could place “no weight” on it. It breached the requirements of CPR, PD35 in a number of respects. Further, he was the surgeon’s retained lawyer. Lawyers retained by parties to act for them are rarely, if ever, suitable to be instructed as that same party’s expert witness.
Read the Judgment
Read the full judgment here.
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