Case No: A2/2009/2274(A),A2/2009/2274
Neutral Citation Number: [2009] EWCA Civ 1393
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(MR JUSTICE MACDUFF)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 29th October 2009 

Before:

LORD JUSTICE WARD
and
LORD JUSTICE WILSON
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Between:

	MR A TANTERA & ANR
	Appellants/
Defendants	
	- and -		
	
MRS E MOORE	
Respondent/
Claimant	

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(DAR Transcript of 
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Mr Pierre Janusz (instructed by Pierre Thomas and Partners) appeared on behalf of the Appellant.

Miss Nicholas Warrender and Miss Sarah Prager (instructed by Stewarts Law LIP and Travlaw LIP) appeared on behalf of the Respondent.
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Judgment

Lord Justice Ward:

1.	Mr Adriano Tantera is the defendant to what is now called an additional claim and to whom I refer as the third party.  He appeals with permission granted by Rix LJ from an order made by MacDuff J in the High Court Queen’s Bench Division on 14 October of this year, a few weeks ago. 

2.	The judge refused an application by the third party to be allowed to participate in ways I will identify in the hearing on liability of a claim brought by Mrs Emma Moore, the claimant, against Hotel Plan Limited, the defendant, which is due to be begin next Monday 2 November and to proceed for five days.  Therein lies the urgency of the appeal.  

3.	The background to the claim and third party claim is this.  In January 2007 the claimant went with friends on a skiing holiday in Italy.  That holiday was contractually provided to her by the defendant, which trades under the name of Inghams Travel.  In the brochure the defendant advertised the availability of various snow-related activities beyond conventional skiing.  One was the opportunity to hire a motorised snowmobile or a “ski-doo”, as it is called, which appears to be something like a quad bike, not that I am totally sure what a quad bike is, but it operates on skis rather than on wheels, and so it is able to travel through the snow and go downhill to travel at very high speed.

4.	On 18 January 2007 the claimant and her friends hired snowmobiles under arrangements organised, at any rate to some extent, by the defendant.  The third party was a local owner and supplier of these snowmobiles to holidaymakers, many of them clients of various English tour operators.  So he came to supply a machine to the claimant and her party.  

5.	In her claim Mrs Moore describes how she had gone up the mountain and then was coming down the mountain when: 

“…suddenly and without warning the ski-doo the Claimant was driving began to gain speed and gained upon the ski-doo in front of her. The Claimant remembers pulling the brake but nothing happened and the ski-doo seemed to get faster and faster.  Having not been instructed about the use of the emergency stop or the cut off button (the throttle safety switch), the Claimant was unable to use the same which would have resulted in the ski-doo stopping and the Claimant avoiding the collision and injury she sustained.”

In fact this was a grievous injury.  She suffered fractures to her spinal column and, sadly and catastrophically, is now a paraplegic, paralysed from the chest down.  So she sues the defendant for substantial damages, which we have been told might run to as much as £3 million.

6.	She casts her claim both in contract and in tort.  She contends that the contract between them included the provision to her at her election of a snowmobile, and in that regard the defendant undertook that those who supplied it on its behalf, including the third party, would discharge their functions with reasonable care.  She also alleges that, irrespective of contact under the law of delict in Italy, the defendant is strictly liable for the actions or inactions of the third party, in that it cannot prove that it adopted all necessary precautions to avoid injury to her or that it is precariously liable to her under the law of negligence in England and Wales or the particularised negligent acts of the third party.

7.	Although she pleads generally that the third party failed to give any, or any adequate, training or instruction to the claimant on the safe operation and control of the ski-doo, the central allegation is that the third party, for whom the defendant is vicariously liable, failed to give any, or any adequate, training or instruction to the claimant on the use of the emergency stop or cut-off button: the throttle safety switch on the ski-doo.  By its defence the defendant denies entry into any contract with the claimant for the provision of a snowmobile and contends that, instead, its role was confined to facilitating her entry into a contract with the third party.  It also denies, whether in contract or in tort, any respect of the applicability of either national law, responsibility for any defaults of the third party in his provision of the machine to the claimant.

8.	The defendant proceeds, however, also to deny that, in instructing the claimant, the third party acted in breach of any relevant duty of care which it owed to the claimant.  He also alleges the claimant’s contributory negligence.

9.	It is said on behalf of the claimant -- and there is no reason to doubt it -- that thought was given on her behalf to joining the third party as a second defendant to her claim, but that, in the light of his residence abroad and in particular (inaudible) of the level of his insurance cover for any liability to her, it was considered that the extra cost, which would confront her in adding the third party as a second defendant, outweighed the likely benefit.

10.	I must spend a moment setting out the chronology.  The claimant’s claim with its attached particulars was issued in October 2008 and served in November 2008.  The defence was filed and served in December 2008, followed by a reply in January 2009.  The Master conducted a case management conference on 30 April 2009.  Not long before that date the claimant had learnt that the defendant had made an additional claim, namely this claim against the third party under Part 20 of the Civil Procedure Rules.  It had been issued without Particulars in December 2008.  Particulars were filed and served in April 2009 and it may not have been clear at the case management conference whether the additional claim had yet been served.  By the additional claim the defendant claimed an indemnity or contribution in respect of any liability on its part to the claimant.  The basis of the additional claim was that, whether by way of contract between the defendant and the third party or under the law of tort, the third party was obliged to exercise reasonable skill and care in the provision of snowmobiles to the defendant’s holidaymakers and that he had failed to do so in the manner alleged by the claimant.

11.	At the case management conference, therefore, the solicitor for the defendant was able to argue that although the additional proceedings had scarcely begun, and although the legal framework in which the claimant and defendant passed their respective claims, there was, at the centre of both proceedings, a common kernel, namely the care or otherwise with which the third party had instructed the claimant about the use of the machine, with the result, so he contended, that the additional proceedings should be allowed to catch up with the main proceedings so that both might be heard together.

12.	The Master rejected the defendant’s contention.  He directed that there be a split trial of the claim and that in the first part all questions of liability, both in contract and tort, including in the latter regard the applicability or otherwise of Italian or English law, the breach of any contract and of any tortious duty, and any contributory negligence be heard over five days in November/December 2009 on a date to be fixed.  A few weeks later that date was fixed, namely, as I have said, for the trial to begin on Monday next.

13.	The additional claim proceeded slowly.  On 12 May the third party purported to file an acknowledgement of service, but he provided no address within the jurisdiction and, following what appears to be lamentable delay, the court rejected it for that reason.  Ultimately the third party instructed his present solicitors who filed an acknowledgement on 5 August. On about 9 September 2009 the third party filed and served his defence.  He denied entry into any contract with the defendant rather than with the claimant, and alternatively denied any breach of contract with the defendant or, for that matter, with the claimant, in that, so it was said, the third party had at all material times instructed the claimant about the use of the snowmobile with reasonable care, including in relation to the cut-off button.  

14.	Meanwhile, of course, as between claimant and defendant, witness statements were exchanged in relation to the forthcoming trial.  The claimant will give evidence from her wheelchair and there may be up to 27 witnesses, some relatively short.  The principal factual witness on behalf of the defendant will be the third party who signed a witness statement in support of the defendant’s defence and its holiday representative in the Italian resort.  There seem to be four expert witnesses, two in relation to the functioning of the snowmobile and two in relation to Italian law.  A number of these witnesses will need the assistance of interpreters; so whether five days is a realistic estimate may be open to question.  In any event, it seems to be common ground -- rightly, I think -- that if the trial does start on Monday it is fixed to commence in a window which allows two weeks for its conclusion; so if it starts on Monday it will finish even if it goes into the next week.

15.	Be that as it may, the fact is that the additional claim has not yet even been the subject of directions.  There is still not any direction that the third party issues be heard with the claim.  Mr Janusz, on the third party’s behalf, is able to assert that, notwithstanding different issues in the two claims referable to the alleged contracts and to the source of the alleged liabilities and tort, there is the common kernel relating to the care or otherwise with which the third party advised the claimant about the use of the machine.

16.	The third party’s application which is before the court was not made until 5 October after there had been an unsuccessful attempt at mediation.  It was not an application that the additional claim be heard together with the main claim; it was what the judge described as a halfway house.  By the application,  the third party is seeking an order that he be permitted to participate in the trial beginning on Monday, and in particular that he be permitted by his counsel to cross-examine witnesses called by the other parties to call himself to give evidence on his own behalf rather than on behalf of the defendant, and to call other witnesses of fact, although Mr Janusz is not suggesting that at the moment there will be use made of that facility, but he wishes to make his submissions to the judge.  

17.	The judge dealt with that application in this way.  He started his judgment with the wholly correct view set out at paragraph 5, page 19 of our bundle, quoting: 

“In an ideal world the third party proceedings, the Part 20 proceedings would have been case managed in such a way as to enable them to keep pace with the main claim. Part 20 itself provides that where possible the two should be case managed together so that where appropriate Directions can be given to have both claims tried together at the same time, or consecutively.  That would have been an appropriate objective in this case”

I agree with him, that was the best way forward in the ideal world, and the question is whether it is still permissible in a less than ideal world.  But the judge went on in that paragraph to deal with delay, saying: 

“…it seems to me that in respect of any failure to have the third party proceedings case managed with speed, the default there lies principally with the Defendants. On behalf of the Part 2 Defendant, Mr Janusz asks me not to visit the sins of the Defendant upon his client, and I undertake not to do so.”

18.	Then the judge went on at paragraph 6 to reach a conclusion that: 

“In my judgment, the application could and should have been made well in advance of the mediation to cover the prospect -- perhaps even the likelihood --that the mediation would fail.”

19.	The paragraph begins with the obviously correct direction that: 

“I have a clear discretion which I must exercise with my eye on the correct ball.”

20.	Perhaps he should have said “correct balls” because he was in fact very properly taking account of the provisions of Part 20 and also the case management powers and the overriding objectives.  He had regard to Part 20.13(2) which requires the court in a case management, where a defence to an addition of a claim is filed, to ensure that, so far as practicable, the original claim and the additional claims are managed together.  CPR 20.9 is also material, and by paragraph 2: 

“The matters to which the court may have regard include --
(a) the connection between the additional claim and the claim made by the claimant against the defendant;
(b) whether the additional claimant is seeking substantially the same remedy which some other party is claiming from him; and
(c) whether the additional claimant wants the court to decide any question connected with the subject matter of the proceedings [and, strictly speaking of course, in this case the additional claimant is not making the running; the additional claimant is here to support the application but has not taken steps adequately to pursue the third party claim].”

21.	So, in as much as the judge addressed Part 20 and the overriding objective, he is beyond criticism.  Then, however, he identified the issue as he saw it in paragraph 9, and he said: 

“The first and fundamental question as I bring my discretion to bear upon the case, it seems to me, is this; does the third party require [and Mr Janusz puts emphasis on the word require] the facility to be represented at the trial?”

22.	In answering that question, the judge seems to find the answer to be no; he says: 

“It is patent, in my judgment, that the third party and the Defendants share a completely common interest, and although there is some oblique reference at some stage to a divergence of interest, that does not bear examination.”

23.	Then he concluded that: 

“There will be a duplication of representation on an issue which does only require competent representation once and not twice.  That applies to all limbs of the application -- cross-examining; presenting oral evidence on behalf of the Defendant; and making submissions at the conclusion of the evidence.

10. I am not, I have to confess, impressed by arguments as to whether or not Mr Tantera would be bound by the judge’s findings of fact.  The reality is that the court of competent jurisdiction would make findings on the best evidence that would be available at the main trial, which would be exactly the same as the evidence in the third party proceedings.”

24.	And so his conclusion was that: 

“The trial would be made more expensive, significantly so, and in my judgment unnecessarily so.  It would be made the more expensive by a lot of additional lawyers’ fees.  The trial will be lengthened in time -- on one hand it is suggested by no more than half a day; on the other by two days.  The truth probably lies somewhere in between.  But there would be a lengthening of the trial, a raising of expense, and an increase all round in costs exposure.”

25.	So the judge expressly accepted the submission made by Miss Warrender in her admirable skeleton argument to this effect: 

“The third party does not require separate legal representation to look after his interests because the Defendants have exactly the same goal of ensuring that there are no adverse fact findings against him.  He will give his evidence in just the same way whether his hand is held by his own lawyers or the Defendants’ lawyers.”

26.	Then the judge accepted an additional point that, where witnesses for a defendant are under attack, those witnesses do not always seek their own representation against the prospect of later being found negligent.  And so the judge’s conclusion was that there was a prejudice to the claimant, and he ended his judgment by saying: 

“I hope in exercising my discretion I have considered the appropriate factors, but I do also accept there would be a certain condonation of the failure of the third party to make this application more expeditiously, as he could have made it had the matter been dealt with (as it should have been) when solicitors were first instructed.  This is, in my judgment, really an effort, if one likes, by a back door, to plug the gap where in reality an early application could have ensured that the third party proceedings could have been determined by the same judge at the same time.  But applying my discretion I hold this application should fail and that the trial can go ahead as planned at the beginning of November.”

27.	As the judge correctly directed himself, he was exercising his discretion; moreover, he was exercising it in a matter of case management, and it is notorious that this court will not interfere readily with such an exercise of discretion.  It is trite law that the court will not interfere unless the judge has misdirected himself in some way or is guilty of an error of principle; if he has, for example, wrongly taken some factor into account when he should not have done, or failed to take into account some matter which called for it being weighed, otherwise he can only be upset if he is plainly wrong in the sense that he has exceeded that generous ambit within which there is room for disagreement.  

28.	It is therefore not without a very great deal of hesitation that I have come to the conclusion that the judge was in error.  He correctly began by recognising that this case called for a single trial and it seems to me that Part 20 proceedings were always on the cards; the claimant was always at risk in a case like this that the defendant would seek to join the third party, even if the claimant herself did not wish to join him as a second defendant. Miss Warrender on the claimant’s behalf submits that, had there been a proper case management of the third party claim -- as I keep calling it, because I cannot get used to calling it the additional claim -- there is every likelihood that the Master would have hived off the contractual dispute between the defendant and the third party but directed the issue of negligence to be tried together in both claim and additional claim.

29.	That is effectively all the third party wants, realistically agreeing to be bound by the result so the advantages of this course are not only giving a practical if idiosyncratic effect to Part 20, but also meeting many of the overriding objectives, as I shall explain.  I am troubled by the learned judge’s approach to the merits of the third party’s case.  He identified the fundamental question in terms to use his words of the third party’s requiring the facility of being represented at the trial.  It would be quite wrong to subject this extempore judgment to a rigorous textual analysis, and I refrain from placing the emphasis on the word “require” which Mr Janusz devotes to it.  Nonetheless, the sentiment running through the whole judgment is that the third party will not be prejudiced by not being allowed to intervene because he and the defendant share a completely common interest.  His participation will merely be a duplication of representation and the argument about being bound by the findings lacks reality because the evidence in this trial and a separate trial between defendant and third party would be exactly the same.  But, with respect to the learned judge, I disagree with that analysis.  Findings will be made against the third party effectively in his absence.  He cannot defend himself as he wants to defend himself; he is not on an equal footing.

30.	Whether the finding against him will, as the defendants suggest, cause him financial loss as his business suffers through the loss of good reputation among his clients in Italy (which is not a suggestion he himself makes) the fact remains that a finding of negligence made against him is as serious for a man of business as it would be for a man practising a learned profession.  Fairness therefore demands that he should have a chance to defend himself.  The allocation of court time and court resources demands that we should not allow two trials if one will do. 

31.	As I read the judgment, the judge, despite his saying early on that he would not visit the sins of the defendant on the third party, nonetheless it does read as if great weight is being placed on delay even if it was only the third party’s delay.

32.	Mr Janusz submits that delay as such has caused no, or at least very little, prejudice to the claimant, bearing in mind the joinder of the third party was always likely; so delay as such will not have caused the trial to be extended nor the extra cost to have been incurred in the extension of that trial.  Those consequences are the consequences of the joinder.  Delay will have caused some difficulties for the claimant which cannot be overlooked entirely in her obtaining insurance cover, as is established by the fresh evidence we admitted at the beginning of this appeal.  But there is not, in my judgment, any realistic risk that cover will not be provided for her.  The issue is the extent to which she will have to pay an added premium for it, but there is in my judgment no compelling evidence to suggest that the added premium puts her at such a disproportionate disadvantage as to outweigh the other advantages of dealing with this case expeditiously next week.

33.	In my judgment the judge was wrong to accept the submissions so eloquently put to him in Miss Warrender’s skeleton argument.  He is not an ordinary witness; he is at risk, and in fairness his hand should be held by those of his choice, if that can be accommodated.  

34.	I am troubled by the judge’s conclusion that this is an effort by the back door to plug the gap which should not have appeared had the matter been swiftly dealt with at an early stage.  When Rix LJ gave permission to appeal he gave as his reasons these: 

“The third party/appellant accepts that any appeal from a case management decision in the judge’s discretion is a difficult one.  That is so, but the question is ultimately whether a delay by the third party of two months in the close run-up to trial justifies the dangers of splitting off the main action and the Part 20 proceedings.  If the trial can take place on time without unfair prejudice to the parties, the context of a case which is important to the parties and where damages it is said may run into the millions, there is a real prospect that the judge may be said to have placed a discipline above the rationale of Part 20.”

35.	I agree with Rix LJ.  He eloquently  encapsulates those matters which lead me to conclude that in this case the judge fell into error, and I would allow the appeal accordingly and grant the permission the third party seeks.  Whether or not this trial will in fact be fully effective on Monday is a matter that has been ventilated before us, because there is some suggestion that the thrust of the claimant’s case will have moved from the emphasis she placed upon the lack of instructions as to the emergency stopping of this machine to a different question of the failure of the brakes due to overheating.  Whether that leads to an adjournment or not is not for us to judge, but I note that there is a possibility of the trial not being effective, and the mere possibility fortifies me in my conclusion that the third party should participate in the trial and that the judge was wrong to otherwise (inaudible).

36.	So I would allow the appeal and give him the permission which he seeks.

Lord Justice Wilson: 

37.	I agree.

Order:  Application refused