Thomas Cook Tour Operations Ltd & Anor v Louis Hotels SA [2013] EWHC 2469 (QB)

[2013] EWHC 2469 (QB)Case No HQ13X02432
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/08/2013
Before
THE HONOURABLE MRS JUSTICE SWIFT DBE
Between
LOUIS HOTELS S.ADefendant
Mr Simon Browne-Wilkinson QC (instructed by Field Fisher Waterhouse Solicitors) for ClaimantsMr Christopher Wilson (instructed by Hill Dickinson Solicitors) for DefendantHearing Hearing date: 29 July 2013
JUDGMENT SUPPLEMENTAL
[1]On 13 June 2013, I heard an application by the claimants (two companies in the Thomas Cook travel group) for summary judgment in their claim against the defendant. I reserved judgment and, on 5 July 2013, I delivered to the parties a draft judgment giving the claimants summary judgment and ordering the defendant to make an interim payment of £1 million. In order to accommodate my other commitments, the date fixed for hand down of the judgment was 19 July 2013.[2]On 18 July 2013, I received a communication from the defendant, indicating that it would be asking me to reconsider my draft judgment. The communication was accompanied by, inter alia, a Skeleton Argument written by Mr Christopher Wilson who was by that time acting for the defendant. (I have subsequently been told that Mr Grahame Aldous QC, who represented the defendant at the summary judgment hearing, is abroad and therefore unavailable at present.) There was also a lengthy witness statement from Ms Maria Pittordis, the defendant’s solicitor, together with two lever arch files of documents. It was plain that there would be insufficient time on 19 July 2013 to deal with the issues raised in the defendant’s documents and I directed that the hand down hearing should be adjourned and re-listed on 29 July 2013.[3]Subsequently, the defendant lodged a Supplemental Skeleton Argument prepared by Mr Alexander Layton QC (who had not previously been involved in the case) and Mr Wilson. That document raised a wholly new ground on which it was said that I should reconsider my judgment.[4]At that stage, the defendant’s solicitors suggested that, because of the unavailability of Mr Layton on 29 July 2013 and the imminent Long Vacation, the judgment hand down should be adjourned until October 2013. Not surprisingly, the claimants’ solicitors objected to that course and I directed that the matter should remain listed for 29 July when I would hear argument on the question of whether I should reconsider my judgment.[5]On 29 July 2013, I heard oral submissions from Mr Simon Browne-Wilkinson QC (who had represented the claimants at the original hearing and had also provided written submissions) and from Mr Wilson. A considerable amount of further material was also before me. In particular there were witness statements on behalf of the claimants from Ms Maria Papamichalopoulou (a partner in a Greek law firm who had advised the claimants); Mr Simon Retchless (Accounting Manager (Tour Operations) for the first Claimant); Ms Louise Hutchinson-Chambers (Head of Customer Legal for Thomas Cook in the UK and Ireland); Mr David Hallisey (UK and Ireland Legal Director for Thomas Cook, 2002-2011); Ms Shirley Bradley (UK Company Secretary and Senior Legal Adviser to the Thomas Cook Group); and Mr Dafydd Rhys Griffiths (partner in Field Fisher Waterhouse LLP, the claimants’ solicitors in these proceedings). The defendant had filed additional statements from Mr Leonidas Maravelis (a Greek lawyer who represented the defendant in proceedings brought by the family of Christianne and Robert Shepherd in Greece against the defendant, the claimants and other parties) and from Mr Haralambos Haralambous (a legal representative employed by the defendant).[6]Having heard full oral argument, I announced my decision to hand down my judgment in the same form as the draft, save for a few typographical errors which had been pointed out by the parties and corrected. I indicated that I would give my reasons in a written judgment which I now do. Having handed down the judgment I then gave directions for the preparations for and listing for trial of the assessment of damages.

The history of the claim

[7]The history of the claim and its factual background are set out in my previous judgment to which reference should be made if necessary, I do not propose to rehearse them here.

Reconsideration of a judgment

[8]The decision of the Supreme Court in Re:L and Another (children) [2013] 1 WLR 634, made clear that the power of a judge to amend or reverse his/her decision at any time before the resulting order is drawn up and sealed by the court is not limited to exceptional circumstances. The decision whether or not to exercise the power is to be made in accordance with the overriding objective of the CPR. In Re: L, the judge had given a summary, ex tempore fact finding judgment, which was followed by a perfected written judgment in which her findings changed significantly. However, the principles must be the same where a judge is invited, as I have been, to reconsider judgment after delivering the draft judgment to the parties but before the judgment hand down.[9]In this case, the defendant had raised what was contended to be new facts and I acceded to its request for me to receive written and oral submissions on those matters.

The grounds

[10]The defendant argued that I should reconsider my judgment on three separate grounds. It was argued that: i) the decision of the First Instance Court in Athens dismissing the claimants’ application for a freezing order which was issued on 11 July 2013 (i.e. after my draft judgment was communicated to the parties but before it was handed down) prevented this court from granting summary judgment and ordering an interim payment; ii) the invoices and other documents on which the claimants’ claim for financial loss is based, and which had come into the defendant’s possession only on 16 July 2013, did not support the claimants’ contention that, between them, they had incurred expenditure in excess of £5 million as a result of the defendant’s breach of contract; and iii) the way in which I dealt with the issue of causation might prevent the defendant from raising arguments on the assessment of damages which should be available to them. In particular, the defendant might be prevented from raising the argument that the operative cause of certain items of expenditure incurred by the claimants was fault on the part of their employees, rather than the defendant’s breach of contract.[11]I shall deal with each of those three grounds in turn.

The Greek decision

[12]In January 2013, the claimants filed an application before the First Instance Court in Athens (“the Greek court”), seeking interim relief in the form of a protective order which would give them a legal charge over the defendant’s assets up to the total amount of their claim, i.e. over £5 million. The order sought was not the precise equivalent of a freezing order but, for these purposes, it can conveniently be described as such. Its purpose was to preserve the defendant’s assets in Greece up to the amount of the sum claimed, pending the outcome of these proceedings brought in England. The evidence before the Greek court consisted of the Particulars of Claim in these proceedings, translated into Greek, together with the two lever arch files of invoices and other documents on which the claimants’ claim for financial loss is based.[13]The evidence of Mr Maravelis, who represented the defendant at the hearing of the application in the Greek court was that, before the court granted such an application, it had to be satisfied, inter alia, that it was more probable than not that the claimants would succeed in their claim against the defendant. In the event, the Greek court was not so satisfied. There was some dispute as to the precise reasons for that.[14]Mr Maravelis exhibited to his witness statement what he described as a “loose translation” of the judgment of the Greek court. It is clear from that translation (and agreed by both parties) that the first reason for the dismissal of the application was what was said by the judge to be “vagueness and uncertainty” as to which of the two claimants had suffered the damages claimed. Since Greek law does not permit alternative claimants to be joined in an action, this was inevitably fatal to the application.[15]The second reason was less clear. Mr Maravelis’ evidence, based on his translation of the judgment, was that:
“no real specific circumstances had been proven based upon which the extent of any (alleged) existing securable claim of the [claimants] against the [defendant] could be initially investigated and subsequently considered probable”
. He said that in other words, the Greek court had ruled that the claimants had not established that it was more probable than not that they would succeed in their claim. In her witness statement, and on the basis of Mr Maravelis’ translation of the judgment and his evidence, Ms Pittordis stated that:
“The Greek court was shown all the invoices that are now before the English court and on the basis of that evidence decided that the claimants had failed to establish that the claimants’ claim would succeed.”
[16]Ms Papamichalopoulou did not consider that Mr Maravelis’ translation of the last part of the judgment of the Greek court was accurate. The claimants’ solicitors therefore commissioned a translation of the last part of the judgment from a firm of independent translators. In that translation, the following passages appear:
“… the application would once more have to be dismissed, this time due to its lack of precision with reference to the deficient description of the securable claim. Indeed, as is upheld in both legal theory and case law, in an application for interim seizure, the actual facts which posit the existence of the securable right and the sum of money which is owed or is capable of being converted into a financial amount must be cited, otherwise a probable estimate thereof is not possible and the relevant claim has to be dismissed as being inadequate….” and “From all of the above it becomes evident that in the application before the court, no specific actual fact is cited, on the basis of which it is possible, to begin with, to investigate and consequently to make an assessment or estimate of the amount of any existing claim on the part of the claimants against the defendant, without it being possible to remedy the lack of specifics in question by referring it to another suit, such as the note filed by the applicants or the relevant documentary evidence which supports it. In these circumstances, and in accordance with those matter which are dealt with in the overall pleading, the application before the court must be dismissed in its entirety as being inadmissible… .”
[17]Ms Papamichalopoulou’s evidence was that the accurate translation of the judgment made clear that the judge did not make a decision as to whether or not the claimants had proved their case or had failed to show that it was more probable than not that they would succeed in their claim. The judge had, Ms Papamichalopoulou said, done no more than state that the claimants’ application had failed to include a sufficient description of the facts necessary to enable them to establish the probable value of the claim in England. In other words, the judge had found that the claimants’ pleading was inadequate and had made no pronouncement on the substance of the case.[18]In his second witness statement, Mr Maravelis took issue with that view. He said that it was clear from the translation obtained by the claimants’ solicitors that the Greek judge had found that both the existence and the quantum of the claim had not been proved on a balance of probabilities. He pointed out that it would have been open to the judge, had he been satisfied that the claimants had established that it was more probable than not that they would succeed in recovering less than the full value of their claim, to make a freezing order for that lesser amount.

The effects of the Greek decision

[19]Mr Maravelis’s evidence was that, in Greek law, a decision rejecting an application for interim protective measures produces what is called a ‘temporary’ or ‘provisional’ res judicata, preventing the applicant from bringing a new interim application based on the same facts.[20]Ms Papamichalopoulou did not entirely agree with Mr Maravelis’ analysis of the effects of the Greek judgment. She said that it would be open to the claimants to issue two separate applications (one for each claimant) for a freezing order. That would remove the difficulty that had been caused in the original freezing order application by having two alternative claimants. She was however, silent as to whether the claimants could successfully remedy the second basis on which their application was rejected, namely the inadequacy of their pleaded case on financial loss. Mr Maravelis’ evidence was that this would not be open to them if their application was made on the basis of the Particulars of Claim previously relied on.[21]As to the effect of the Greek judgment on a substantive disposal of the case, Ms Papamichalopoulou’s evidence was that:
“The claimants could, as a matter of theory and leaving to one side the existence of the English proceedings, issue substantive proceedings in the Greek courts making the same claims as are made in the English proceedings and the Judgment of the Athens Court would have no bearing whatsoever on those proceedings.”
Mr Maravelis did not challenge this statement. The European regime[22]The regime governing the effect of judgments in civil and commercial matters as between the courts of Member States is set out in Chapter III of Council Regulation (EC) No 44/2001 of 22/12/00 on Jurisdiction and the Recognition Enforcement of Judgments in Civil and Commercial Matters (“Brussels I”).[23]Article 31 of Brussels I provides:
“Applications may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.”
It was Article 31 which allowed the claimants to make their applications for a freezing order to the Greek court, despite the fact that (as they contended and I have found) the English court has jurisdiction as to the substance of their claim.[24]Article 33 states:
“1. A judgment in a Member State shall be recognised in the other Member States without any special procedure being required. … 3. If the outcome of proceedings in the Court of a Member State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.”
It is not disputed that the Greek court’s decision on the interim application was a “judgment” for the purposes of Article 33.[25]Article 34 provides:
“A judgment shall not be recognised: … 3. if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought; 4. if it is irreconcilable with an earlier judgment given in a Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.”
[26]Article 36 states that under no circumstances may a foreign judgment be reviewed as to its substance.[27]The authorities make clear that a foreign judgment which has been recognised by virtue of Article 33 must in principle have the same effects in the courts of other Member States as in the court of the Member State in which it was given: see Hoffman v Krieg (case 145/86)[1988] ECR 662. It is, however, well established also that such a judgment should not be given a wider effect than it would have in the Member State where it was given: see Barrett v Universal-Island Records et al [2006] EMLR 21, at paragraph 189 of the judgment of Lewison J (as he then was) and Boss Group Ltd v Boss France SA [1997] 1 WLR 35 per Saville LJ at 359A.[28]For the defendant, Mr Wilson submitted that the failure by the claimants in the Greek court to establish the probability of succeeding in their claim for the purpose of the freezing order application had the effect of preventing this court from(a) giving summary judgment to the claimants on their allegations of breach of contract and(b) ordering an interim payment. He contended that Article 33.1 requires this court to recognise the judgment of the Greek court, both as to the issues it decided and its effects.[29]Mr Wilson further submitted that the effect of the judgment of the Greek court was to prevent the claimants from bringing (whether in Greece or in England) a fresh application for interim relief based on the same facts. Thus, so the argument went, it would not have been open to the claimants to apply to the Greek court for an order for summary judgment and/or an interim payment based on the same Particulars of Claim and it was not open to them to apply to the English court for those remedies either. Mr Wilson conceded that there would be no bar on the claimants proceeding to a full trial of the claim in the English court, since the trial would proceed on the basis of evidence that would be different from the material relied upon before the Greek judge.[30]Mr Wilson argued that the test to be satisfied on the application for summary judgment, namely that the defendant had no real prospect of succeeding in its defence, constituted a higher threshold than the balance of probabilities test which had been applied by the Greek court in dealing with the application for a freezing order. He submitted that it was not open to this court to make a finding that the test for summary judgment had been satisfied when a court in another Member State had already decided that the claimants had not proved that their claim was more likely than not to succeed. Similarly, an interim payment may only be awarded if the court is satisfied that, if the claim went to trial, the claimants would obtain judgment for a substantial amount of money against the defendant. Such a finding would, he argued, contradict the conclusion of the Greek court on the same question.[31]Mr Wilson argued also that, if I were to enter summary judgment for the claimants and order the interim payment as set out in my draft judgment, my decision would not be recognised – or would be at substantial risk of not being recognised – in any other Member State. The decision would, he said, be irreconcilable with the previous decision of the Greek court and would not therefore be recognised in Greece.

Discussions and conclusions

[32]The purpose of Article 31 is to make it possible for a claimant who is bringing a claim in the court of one Member State to protect its position by obtaining interim relief in the court of another Member State, often (as here) the Member State in which the defendant’s business is based. The court of the Member State which deals with an interim application is in effect supporting the court of the Member State which has jurisdiction to deal with the substantive claim.[33]In those circumstances, it would be surprising – and would undermine the whole purpose of Article 31 and the regime governing the effect of judgments as between the courts of Member States – if the outcome of an interim application in the court of one Member State were to impede or inhibit the ability of the court of another Member State which has jurisdiction over the substantive claim to deal with that substantive claim in the way it considers appropriate.[34]The evidence of Mr Maravelis and Ms Pittordis does not suggest that the outcome of an interim application has that effect. They do not say that the effect of the decision in the Greek court would be to prevent the Greek court (if it had jurisdiction over the claim) from dealing with it substantively. All that is said is that it would prevent the claimants from bringing a new interim application based on the same facts. If a Greek court is not prevented from dealing with the substance of the case, it cannot be contended that an English court is prevented from doing so. This was confirmed by Ms Papamichalopoulou in the passage from her witness statement quoted at paragraph 21 of this judgment.[35]An order for interim relief is an order having temporary effect during the course of (or upon an undertaking to commence) civil proceedings. The order will come to an end (or be converted into a final order) when the substantive proceedings are concluded, or earlier by further order of the court.[36]Applications for interim relief made in the English courts are governed by CPR Part 25. An application for summary judgment made pursuant to CPR Part 24 is not an application for interim relief. If it is granted, it will be determinative of the issue of liability in the case. If it is refused, the case will proceed.[37]Accordingly, the submission that the refusal of the freezing order by the Greek court acts as a bar to my entering summary judgment in favour of the claimant appears to me wholly misconceived.[38]The difference between the exercises undertaken by the Greek and English courts is evident from the judgments of the respective courts. Paragraph 41-77 of my judgment are concerned with an analysis of the provisions of the holiday contract and the parties’ arguments relating to the defendant’s liability under the contract and whether the holiday contract had been validly assigned by the second claimant to the first claimant. By contrast the first part of the Greek judgment related to the uncertainty as to which claimant could claim for which loss and the impossibility in Greek law of joining alternative claimants.[39]As to the second part of the Greek judgment, I regard the independent translation obtained by the claimants’ solicitors as more reliable than the “loose translation” of Mr Maravelis. It is certainly makes better sense. It indicates the judge’s concern at the lack of precision in the details of financial loss contained in the Particulars of Claim. I accept however, that the overall effect of the judge’s decision was that he found that the claimants had not established that it was more probable than not that they would succeed in their claim.[40]Thus, the two judgments cover very different topics, reflecting the fact that I was dealing with the substantive issues (unfettered by the Greek law’s rules on alternative claimants), whilst the Greek court was dealing solely with the issue of whether to grant interim relief.[41]Mr Wilson argued that, even if (which he does not accept) it was open to me to enter summary judgment in favour of the claimants, I was precluded by the decision of the Greek court from making an order for an interim payment based on the same facts as those put forward in the Greek court, i.e. those contained in the Particulars of Claim. The Greek court had, he submitted, rejected the description of financial losses contained in the Particulars of Claim as vague and uncertain and it was not open to me to make a different finding in this court.[42]There can be no doubt that the application for an interim payment was an application for interim relief. However, I do not consider that, by the time I came to consider it, it was an application based on the same facts as the application before the Greek court. My order that the defendant should pay an interim payment was made on the basis that I was going to give summary judgment in the claimants’ favour on the allegations of breach of contract. I was therefore satisfied, pursuant to CPR 25.7(1)(b), that the claimants had obtained judgment against the defendant for damages to be assessed. The making of an interim payment in those circumstances is a wholly different exercise from the consideration of an application for a freezing order whilst the outcome of the substantive claim is still at large. Furthermore, and in contrast to the Greek court, I was not faced with any problem caused by the joinder of the two claimants.[43]The exercise I had to carry out was to ensure that any interim payment I ordered was not more than a reasonable proportion of the likely amount of the final judgment: CPR 25.7(4). In addition to the Particulars of Claim which had been before the Greek court, I had two witness statements from Mr Griffiths, giving some of the factual background to the financial losses. At paragraph 4.1 of his second witness statement, he stated that all the financial losses claimed up to 31 October 2007 had been incurred by the second claimant and all those claimed after that date had been incurred by the first claimant. A breakdown of the expenses claimed was exhibited to Mr Griffiths’ first witness statement. On the basis of that material and exercising what I described as a “cautious approach”, I was satisfied that the sum of £1 million represented a reasonable proportion of the likely amount of the final judgment. I do not accept that the effect of the judgment of the Greek court was to prevent me from making an interim award of damages in those circumstances.[44]Even if I am wrong about that, by the time I handed down judgment, I had a great deal more evidence than that which had been before me at the hearing on 13 June 2013 or before the Greek court. This increase of evidence, which served to support the claimants’ claims for financial loss, amounted to a further change in the factual background from that which had been before the Greek court.

The invoices

[45]The second ground on which the defendant urged me to reconsider my judgment related to the contents of invoices lodged by the claimants in the Greek court for the purpose of their application for a freezing order.[46]The claimants’ failure to provide the defendant with copies of the invoices evidencing their financial loss at an earlier stage of the proceedings has been a subject of considerable dispute. The defendant’s contention is that the claimants have been seeking deliberately to suppress the documents for sinister reasons. That was a serious allegation that was in no way borne out by the evidence. The claimants’ response has been that, until their application for summary judgment had been dealt with, they were under no obligation to disclose documents relating to the issue of quantum. At all events, I am satisfied that the defendant had not seen the invoices at the time of the hearing on 13 June 2013.[47]On 15 July 2013, Mr Maravelis obtained from the Greek court a copy of the Greek judge’s judgment, together with the file of papers that the parties had lodged at court. Amongst those papers were the two lever arch files of invoices and other documents that had been lodged by the claimants in support of their claim for a freezing order. (Greek law does not apparently require documents lodged with the court necessarily to be served on the opposing party.) Mr Maravelis immediately sent the files of documents on to Ms Pittordis, the defendant’s English Solicitor.[48]On examining the documents, Ms Pittordis discovered that they showed that, save for a total sum of just over £143,000 which had been paid by one or other of the claimants, the remainder of the invoices (totalling about £4.79 million) had been paid by other companies within the Thomas Cook group. In her second witness statement, Ms Pittordis set out in details the results of her examination of the invoices. In summary, she had found that invoices issued by various firms of solicitors (Field Fisher Waterhouse, ABS Law, Slaughter and May, CMS Cameron McKenna and K and L Gates) had been addressed to Thomas Cook Ltd or Thomas Cook Group Plc, not to either of the claimants. Invoices presented by various Greek lawyers and media advisers were similarly directed to a number of different members of the Thomas Cook group. Ms Pittordis observed that the invoices:
“… do not bear out the claimant’s claim that they incurred these expenses or paid the invoices and I question the basis on which evidence was given to that effect without qualification under a Statement of Truth.”
[49]In his Skeleton Argument in support of the defendant’s application for reconsideration of the judgment, Mr Wilson argued that, in breach of the CPR, the claimants had “continued to make the position as to loss/indemnity entirely unclear” and had withheld relevant documents. He contended that their conduct should not be “rewarded” with an order for summary judgment”.[50]I have found it difficult to understand how the changed position (as it was contended to be) following the production of the invoices could impact on my findings in favour of the claimants on the issue of breach of contract. Such a judgment is not entered as a “reward”, but on the basis of a finding that the defendant has no reasonable prospect of successfully defending the relevant issues. The submission that the contents of the invoices undermined my findings in relation to breach of contract was bound to fail.[51]The issues of quantum raised by the defendant’s inspection of the documents were, however, different. If it were right, as the documents appeared to show, that the claimants had incurred only a maximum of about £143,000 by way of financial loss, an interim payment of £1 million would plainly be excessive.[52]In response to Ms Pittordis’ witness statement, the claimants filed a number of witness statements, as enumerated at paragraph 5 of this judgment. The effect of the evidence contained in those statements was that many of the invoices had been paid initially by one of the other companies in the Thomas Cook group on the claimants’ behalf, but that there had later been a financial reconciliation by which the first claimant had reimbursed the paying company. Mr Retchless explained the procedure fully in his witness statement and exhibited documents showing two examples whereby intra-company transfers of payment were made between other companies belonging to the Thomas Cook group and the first claimant.[53]Ms Hutchinson-Chambers produced a Schedule of payments totalling over £3.88 million, which had been made by cheque directly from the first claimant’s bank account. In the Schedule, she set out the date and number of each cheque for each payment. It was agreed by the claimants, having reviewed the invoices, that two invoices totalling about £5,000 had been included in error in the original claim. However, the evidence of the claimants’ witnesses was that every other item of expense in respect of which a claim had been incurred by one or other of the claimants.[54]Mr Hallisey, Ms Bradley and Mr Griffiths provided evidence to the effect that the various firms of solicitors, lawyers and other professionals whose fees were claimed had been instructed to act on behalf of one of the two claimants. Ms Bradley’s evidence was that the first claimant received the income generated by the sale of its holiday arrangements and, from that income, had to pay all suppliers involved in the supply of its holidays and all other operating expenses, including the cost of employees working for the first claimant and – significantly for these purposes – “the cost of dealing with anything which goes wrong with a holiday”.[55]Despite this evidence, the defendant maintained its contention that I should reconsider the order for, or at least the amount of, the interim payment contained in my draft judgment. Mr Wilson accepted that he could no longer contend that any of the invoices other than the two to which I have already referred had not been paid by one or other of the claimants. However, he questioned whether, in reality, the various legal and other advisers had actually been instructed on behalf of the claimants. He suggested that it may well be that costs that had in fact been expended for the benefit of other member companies of the Thomas Cook group had been passed on to the claimants in the knowledge that they might be able to recover those costs under the indemnity contained in Clause 36 of the holiday contract. He complained that the defendant had not been provided with additional documentary evidence, including, for example, client engagement letters or documents evidencing intra-company agreements about funding. He suggested that I should draw an adverse inference from the absence of such documents. He submitted that there was a “real possibility” that the court will eventually find that the claimants did not in fact incur some or all of the losses claimed.

Discussion and conclusions

[56]I am quite satisfied, on the basis of the evidence I have seen, that it is appropriate for me to make an order for an interim payment in the sum of £1 million. There can be no doubt that the claimants (mainly the first claimant) paid – or repaid to one of its related companies – the vast bulk, if not all, the sums claimed. There may be argument about their entitlement to recover certain categories of loss but, on the present state of the evidence, it appears to me probable that they will be found to have sustained very substantial losses, well in excess of £1 million. In reaching that view, I have in mind the wide terms of the indemnity contained in Clause 36. It provides that the claimants are entitled to be indemnified for:
“… the full amount of all damages, expenses, losses, compensation, fines, costs (including legal costs) and/or any sum of whatever nature which, for any reason the Tour Operator incurs or becomes responsible for as a result directly or indirectly of any breach of any nature whatsoever of the Contract… .”
[57]For the claimants, Mr Browne-Wilkinson sought to persuade me that, given the additional evidence now before me in support of the claimants’ claim for financial loss, I should reconsider my assessment of the appropriate amount of the interim payment and should increase it to the figure of £3,473,757.51 (representing two thirds of the total sum claimed) originally sought by the claimants. He argued that, on the basis of the evidence now before me, it was clear that the larger sum represented a “reasonable proportion” of the likely amount of the final judgment so that there was no need for the caution I had previously exercised when arriving at the figure of £1 million.[58]I do not consider that it would be appropriate to accede to Mr Browne-Wilkinson’s submissions. The evidence that is now available is not new evidence. It could have been put before me at the time of the original hearing. If that had been done, it is possible that I might have considered ordering a larger interim payment. As it is, the evidence has come before the court as a ‘side wind’ resulting from the defendant’s application for reconsideration of the judgment. For the claimants, it was said that parties who, like the defendant, make unmeritorious applications for reconsideration of a judgment should be prepared for the fact that the court might decide to amend its judgment to their detriment. However, I do not consider that it would be in the interests of justice for me to make any changes to my previous decision.

Causation

[59]The third ground on which the defendant asked me to clarify (and, if necessary, reconsider) my judgment is in relation to causation. In his first skeleton argument, Mr Wilson posed various arguments that the defendant might wish to advance at the assessment of damages hearing as to whether a particular item of loss was caused or partially caused by the negligence or fault of the claimants and/or employees of them or one of their associated companies in the Thomas Cook group. He said that, given the terms of my draft judgment, it was not clear whether the defendant would be debarred from raising those arguments. He asked me to clarify the point in such a way that it would not be shut out from doing so.[60]My judgment dealt fully with the arguments raised before me at the original hearing and I do not think it appropriate to re-open or expand the issues relating to causation at this stage. All I will say is that, in focussing on whether or not particular losses flowed from negligence or fault on the part of the claimants and/or of employees of them or their associated companies, the defendant appeared to ignore the terms of Clause 36 of the holiday contract. The question which the judge carrying out the assessment will have to determine in relation to any item of loss claimed will be whether that item of loss was incurred or the claimants became responsible for it “as a result directly or indirectly of any breach of any nature whatsoever” of the holiday contract by the defendant and/or any act(s) and/or omissions(s) of the defendant, “its staff (whether employed or not by the defendant), agents, suppliers and/or sub-contractors”.

CONCLUSION

[61]For the reasons I have given, I do not consider that the interests of justice require any clarification or reconsideration of my previous judgment. I informed the parties of my decision at the hearing on 29 July 2013 and handed down the judgment on that occasion.

DIRECTIONS

[62]Having done so, I heard oral submissions on the directions that I should give for the preparation and listing of the case for the assessment of damages. Those directions are now embodied in an order, the terms of which have been agreed between the parties. I indicated that I would give reasons for refusing the defendant’s application for permission to both parties to instruct and call at trial expert evidence on the reasonable levels of legal costs in both Greece and England. It appears that the defendant’s contention will be that the legal costs incurred by the claimants have been excessive and unreasonable and, if recoverable, should be awarded at a significantly lower rate than claimed.[63]A number of different Greek and English lawyers (see paragraph 48 of this judgment) have been instructed by the claimants to deal with proceedings relating to the deaths of Christianne and Robert Shepherd. From the submissions made by Mr Wilson, I understood that it was intended that the defendant’s expert would trawl through every item of costs incurred by each lawyer retained by the claimants and offer an opinion as to whether that the item was proper or reasonable or not. When I enquired of Mr Wilson whether he envisaged the assessment of damages involving, in effect, a detailed assessment of the costs paid to each of those lawyers, he responded in the affirmative. Such an unfocussed and wide-ranging exercise as was proposed would be extremely expensive both in terms of costs and of court resources. If, following exchange of the Schedule and Counter-Schedule, discrete matters of dispute are identified, the position might be different but I did not consider that it was reasonable or proportionate to give carte blanche to the defendant in the terms suggested at this stage.