REMISSION TO THE COUNTY COURT: WHAT DOES IT MEAN?

In Sherman & Anor v Reader Offers Ltd (Rev1) [2024] EWCA Civ 412 the Court of Appeal set out the limits that exist when a case is remitted to the county court for an assessment of damages following a successful appeal on liability.

“I would spell out that the remission is not an opportunity to re-litigate matters which have already been decided.”

THE CASE

The claimants brought an action for damages following a cruise in Artic Canada.   The cruise did not follow the planned itinerary because of bad weather.   The claimants claim included claims about the quality of the services provided in addition to the change  of itinerary. The claim failed at trial. The claimants appealed and the appeal was successful on the issue of the change of itinerary. 

The defendant then appealed to the Court of Appeal, stating that the original decision at trial should be reinstated.

THE DEFENDANT’S UNSUCCESSFUL APPEAL

The defendant’s appeal was unsuccessful.  The Court of Appeal holding that the High Court Judge had been entitled to allow the appeal on this issue.

THE LIMITED BASIS OF THE REMISSION TO THE COUNTY COURT

Lord Justice Males set out the limited nature of the remission.

 

 

    1. For these reasons I joined in the decision to dismiss the appeal and to remit the case to the County Court for assessment of the quantum of the claim. It is, however, important to make clear the scope of the remission and to give some guidance on the approach to be followed.

 

    1. In this regard I would spell out that the remission is not an opportunity to re-litigate matters which have already been decided. The Recorder’s findings, in particular as recorded in this judgment, must stand. Claims which have been dismissed, such as for deceit, misrepresentation and negligence, cannot be revived. Nor can the complaints about the master’s conduct, the fitness of the ship or the quality of the food and other services provided on board. The remission is solely to determine the quantum of the remaining claim.

 

    1. The first question to be determined is what Mr and Mrs Sherman would have done if they had been provided with the information which ought to have been provided to them on 7th September 2018. It is therefore necessary to have firmly in mind what the information is which they ought to have been given. What they ought to have been told was that (1) the embarkation point for the cruise was no longer Cambridge Bay, (2) instead, it would be Pond Inlet, (3) the expectation was that the new itinerary would be as set out in the letter to the French couple, and (4) although this was the expectation, there remained an element of uncertainty as to what would in fact be possible. They ought to have been told in addition that they were entitled to cancel and, if they did, would be given a full refund of what they had paid.

 

    1. The question will then arise whether, if they had been given that information, they would have chosen to cancel. Mr Sherman was adamant in submissions to us that they would have done so, but that is not a point which we can decide. Disappointed and annoyed as they were, Mr and Mrs Sherman had come as far as Montreal and met up with their friends Mr and Mrs Maguire, and they did in fact choose to proceed after hearing what Hurtigruten had to say on the evening of 9th September, although two couples in the party chose to leave. So it is not a foregone conclusion. There will need to be evidence.

 

    1. If the Court concludes that Mr and Mrs Sherman would have cancelled, they will be entitled to a refund of what they paid, together with some compensation for disappointment at the loss of their holiday, but such compensation will be modest, bearing in mind that disappointment is transitory and that the offer of a refund would have gone a considerable way to assuage their feelings (cf. Milner v Carnival Plc [2010] EWCA Civ 389[2010] PIQR Q30). They could also have been expected to understand, as reasonable people, that the reason why the cruise had to be curtailed was not due to any bad faith or incompetence on the part of ROL or Hurtigruten, but was simply bad luck as the ice conditions were worse than in previous years. Moreover, if they had chosen to cancel, they would have found themselves in Montreal, which for them was the departure point, and would have to pay for their flights back to London. Credit for this cost would therefore have to be given against the refund of the full price of the holiday.

 

    1. However, if the Court concludes that Mr and Mrs Sherman would have gone ahead, they will not be entitled to a refund, but will be entitled to compensation based on the difference between the price which they paid and the value of the services actually supplied. For this purpose their complaints about the quality of service on board must be disregarded. In submissions to us, Mr Sherman described their experience on board as ‘hell’. That may be his view, but is not what the Recorder found.

PROPORTIONALITY AND MEDIATION

The Court was also concerned about the possibility of ADR.

Proportionality

    1. I am concerned that a claim about a cruise in which nobody died or was injured or suffered any lasting damage has now occupied seven days in the County Court, two days in the High Court and a further two days in the Court of Appeal, and that a yet further hearing will be required before it can be concluded. It is not for us to apportion responsibility for this, although the inclusion of allegations of bad faith against ROL and Hurtigruten, all of which were rejected by the Recorder, cannot have helped and must have generated more heat than light.

 

  1. I would note, however, that the court has done what it could to help the parties to resolve this dispute without this time-consuming and expensive litigation. As early as 18th February 2020, Deputy District Judge Loughbridge made an order that ‘At all stages the parties must consider settling this litigation by any means of Alternative Dispute Resolution (including Mediation)’. Such orders are now increasingly common and must be taken seriously. We were told that a Dispute Resolution hearing did take place in the County Court before the trial, but was unsuccessful. During the hearing in the Court of Appeal, we urged the parties to reach a pragmatic settlement so that they can put this case behind them. That must be in both parties’ interests. I would repeat that urging. Even now it is not too late.