Case No: (1) A2/2007/1696
(2) A2/2007/1698 
Neutral Citation Number: [2008] EWCA Civ 994
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE 
QUEEN’S BENCH DIVISION
(HIS HONOUR JUDGE JEREMY GRIGGS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 8th November 2007

Before:

LADY JUSTICE ARDEN
and
LORD JUSTICE GAGE
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Between:

	POPE	Appellant
	
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BRANCH ENERGY LTD (AKA KOIDU HOLDING)	
Respondent	

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.

Mr M Clutterberg (instructed by Memery Crystal Solicitors) appeared on behalf of the Respondent.
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Judgment

Lord Justice Gage:

1.	These are renewed applications for permission to appeal, leave having been refused in each case by the single Lord Justice.  In the first of the appeals, the Notice of Appeal was out of time, but Lord Justice Brooke extended time and then refused leave.  I shall endeavour to set out the background comparatively shortly.

2.	The applicant seeks leave to appeal two orders made by His Honour Judge Griggs.  The first order is an order of 17 January 2007.  The second order is 19 July 2007.  The background to the claim is as follows.  

3.	In the 1990s, the applicant’s son Jason Pope, was captured by rebels in Angola and his subsequent death has been presumed.  The applicant has sought various remedies arising from this and she also seeks various remedies in respect of three other men who were captured by the rebels at the same time as her son.  Her son, Jason, had qualified as a mining engineer.  He was under contract to Branch Energy Limited, a subsidiary of a larger company who have featured in this case.  He was working in Angola at a site known as the Yetwene Mine.  

4.	On 8 November 1998, the mine was attacked by rebel forces.  A number of the employees were killed outright, others were taken captive.  While it was known that they had certainly survived for a period of time, two of the captives having escaped to report this fact, it is understood that there was no definitive sightings of them thereafter and they have now been presumed dead.  This obviously represents a substantial tragedy for the applicant and the families of the other men who were captured, and I can only have considerable sympathy with all of them in these tragic events.

5.	By the terms of Jason Pope’s employment contract with his employers, they were required to have in place an insurance policy sufficient to provide a capital sum amounting to sixty times his monthly salary in the event of his death.  It appears that there was one single policy of insurance in place, which, it transpires, was insufficient to provide a total amount of cover for all the employees who were captured.  That is the genesis of the claim in these proceedings.  A claim form was issued on 20 August 2004.  It is a claim expressed as a breach of an employment contract; and the contract is shortly set out.  The remedy sought is for payment of monies according to Clause 5.5 of the employment contract plus interest, along with compensation for pain and distress family members have endured by the intransigence of the company settling the claim alongside the realisation that the working environment was not safely secured.  The Particulars of Claim set out a number of matters ending up the breach of contract Clause 5.5.  The claimant claiming interest under Section 69 and setting out a figure.  

6.	There presumably has been a defence filed, but it is not with the documents before us.  However, in the ensuing period since the claim was issued, there have been a large number of interlocutory hearings in front of a District Judge, but principally in front of His Honour Judge Griggs.  I do not propose to go into the detail of all these hearings.  In the course of them, a number of orders were made, including the orders the subject of this appeal.  The judge made five rulings, all of which are before this court.  The last of the rulings was given in June 2007, as a result of which the order of 19 July 2007 was drawn up.  That order, for the sake of completeness, appears in the documents at pages 56 to 57.  

7.	Arising out of this are a number of issues which form grounds of appeal in respect of the two Orders to which I have referred.  I should say at the outset that the Applicant naturally feels very strongly about this matter.  That is not at all surprising.  She feels that she has been prevented by Court procedures from having a fair trial.  She wants one trial for all claims for the four men kidnapped by the rebels in Angola.  She feels so strongly about it that she has not shrunk from accusing the Defendant and the Company that owns the Defendant, DWL, of lying and fraudulent conduct, all of these very serious allegations, and she equally makes allegations of deliberate misconduct by the solicitor for the Defendant in misleading the Court.  I set that out by way as a background to the grounds of appeal, to which I now turn.

8.	I propose to deal with them under the different headings, not necessarily in the order in which they were raised this morning but in the order that they appear in the grounds of appeal and the skeleton argument.  I deal first with what I am going to call the claims for the foreign estates.  The Applicant has sought to add to her claim, by way of amendment, claims on behalf of the foreign estates.  By that, I refer to the families of the three other men who disappeared as a result of what happened in 1998.

9.	In the third of his rulings, the Judge gave permission to the Applicant to amend her claim.  That is dated the 17th January 2007.  His ruling appears in the material part at page 83 through to 86.  It provides at paragraph 16 directions, of which (c) is “provided its form is acceptable to the Court, such amended claim may include claims with the Claimant acting as representative of the Estates of the other three deceased employees and may be framed both in contract and tort and may be against not only BEL but also DWL”.  That ruling was embodied in an order which was drawn up and appears at page 54 of the bundle of documents and reflects that which I have already read out.  Perhaps, I ought to note at this stage that the proviso to amending the Particulars of Claim is that it is in a form acceptable to the Court.

10.	What happened next was as follows.  The Defendants had not been present at that hearing.  That is obvious.  Subsequently they notified the Court that they had not received notice of the hearing.  The Applicant, I suspect, challenges that as untruthful.  However, the Judge decided as a result that he would review his order.  He said in his ruling on the 14th March 2007, which was the review hearing in respect of the order of the 17th January, the following: 

 “The last Ruling was on the 17th January 2007 following a hearing that day when the Claimant appeared in person and there was no representation for the Defence.  After I had purported to give that Ruling, the Court was then notified that the Defendants were asserting that they had not received notification of the hearing and for that reason had not attended.  Although the information before the Court was that notification for the hearing had been sent out to both parties in the normal way, nevertheless I determined that rather than have the matter taken on appeal on that ground alone, the preferable course was to withdraw that Ruling, to relist the matter and hear further submissions on the issues from both parties.  I have since received further written submissions from Mrs Pope amplifying her oral submissions to me on the 22nd February 2007.  I have also received from the Defence a copy of the DWL Group Death Policy with the Norwich Union.”

11. 	The Applicant challenges the Judge’s right to review that order.  She submits that it is procedurally wrong and that the order of the 17th January still subsists.  She submits that the Judge was not entitled to go on and deal with the matter again by revisiting it and by making his ruling, to which I have briefly referred, on the 14th March 2007.

12.	That order of the 14th March 2007 prevented the Applicant from amending her Particulars of Claim in the form placed before the Court.  It was in that amended form that she raised the claims on behalf of the families of the three other men.  The Applicant sought to re-open that order again in the hearing that gave rise to the Judge’s fifth ruling in June of this year.  She asked the Judge to allow her to bring claims as the administratrix or administrator of the families’ estates.  That was dealt with by the Judge in his fifth ruling.

13.	At pages 102 and 103 there appears paragraphs 18 to 22 of the ruling.  What the Judge in essence said in those paragraphs was that he was going, in the exercise of the Court’s management powers, to refuse to permit the Applicant to amend the claim in the form of the proposed amended pleadings.  His reasons for doing so is that it would expand the trial involving just her claim to a great extent and the issues were different.  By that, what he meant was that in the case of the claims of the foreign estates, there were different issues.  For instance in respect of those claims, each of the families had signed an indemnity waiving any rights upon payment of money from the Insurance Company.

14.	The Applicant contends that the waiver is not effective, and in any event was induced by economic duress.  However, the Judge appears to have taken the view, as expressed in paragraph 22, that that would expand the claim considerably.  It would make it more complex and it would make what is a comparatively simple claim as it stands at present, something which would be much longer and more expensive to try.  For that reason, he said, as I have said, in the exercise of his case management powers, that he would refuse permission to amend the Particulars of Claim.

15.	There is also a discussion in the ruling and in a previous ruling about the powers of the Judge to allow the Applicant to represent the families in a claim in this country.  In the time between his ruling in March and the hearing in June, the Applicant took steps to remedy that position.  She went to the Probate Registrar in Brighton and sought to be made an administratrix of the estates of those families.  At the time that the matter came before the Judge in June 2007, that process had not been completed.

16.	What the Judge said was not that he was going to prevent her from seeking to become administratrix by a ruling of the Probate District Registrar, but that, if she did, she could bring separate claims on behalf of each of the families.  As it turns out, the Applicant has frankly told us today the Registrar has said that he cannot make the order which she requires.  That may pose a difficulty in her bringing future claims but it does not, in my judgment, affect the ruling that the Judge made in respect of these estates’ claims, which was that, in the exercise of his powers of case management, he did not propose to allow the Particulars of Claim to be amended and to bring these claims.

17.	It seems to me that despite the – if she will allow me to say – able and persistent submissions made before us today by the Applicant, that is a decision which was made in the exercise of his discretion and is one which is not arguably flawed and there is, in my judgment, no real prospect of success of any appeal to overturn it being successful.

18.	I turn to the matter that is the subject of what I am going to call the second ground of appeal but has been perhaps better identified by reference to it as the Benevolence Exception.  I must fill in a little bit more detail so far as that is concerned.  I have already stated in describing the background to the claim that the claim is in contract in respect of sums which are said to be due but payable out of an Insurance Policy in respect of the death of the Applicant’s son.  It appears that the Defendant holds a substantial sum of money – I believe some £120,000 – in Escrow, which was paid by the Norwich Union, the insurers.  Again I have not seen a copy of the Defence but I apprehend that there is an issue as to whether or not that sum of money can be used by the Defendants in satisfaction or part-satisfaction of the claim in contract.

19.	The Applicant’s case is that that sum of money held by the Defendants was a sum of money which was paid by the Insurers ex gratia, without accepting the claim.  It is submitted that that sum of money is payable to the Applicant as a beneficiary under the terms of the contract in respect of any insurance monies and that accordingly it cannot be set off against any sum by way of damages that she may ultimately obtain as a result of her claim for breach of contract.

20.	The Judge again appears at first to have accepted that she had an arguable case in order to show that the sum held in escrow was an ex gratia payment which should not be used in diminution of any subsequent judgment for damages for breach of contract.  However, he reviewed that decision and his ruling finally in respect of that appears in the ruling which is the fourth ruling of the 14th March 2007.  There is in that ruling discussion about the Gaca-v-Pirelli upon which his decision hinged.

21.	Put shortly, in that case, the Court of Appeal held that a sum of money paid by an employer to an employee who had been injured, was not a sum which is paid ex gratia or under an insurance policy and must therefore be taken into account in diminution of any damages.  The head note really expresses the principle and it appears in the citation Gaca and Pirelli C & Others 2004 1 Weekly Law Report at page 2683 

“Held, allowing the appeal,(1) that ex gratia payments made to victims by tort feasor did not normally fall within the benevolence exception, even if it could be shown that they were made from motives of benevolence, that there was  a fundamental difference between payments made by an employer to his employees to compensate them for consequences of injuries suffered in an accident, whether made directly or indirectly by means of an insurance policy and payments made to victims of accident by third parties out of sympathy for their plight and that payment should only be treated as analogous to a benevolent payment by a third party if the case for doing so was so clearly made out, having regard to the rationale for the existence of a benevolence exception, and that
since the relevant payments were made by the defendants through a policy which formed part of the claimant’s employment package and were not equivalent or analogous to payments made by third parties out of sympathy, the benevolence exception did not apply.”  The Court went on to deal with the insurance exception holding “2. That the existence of the insurance exception was not in doubt but it was clear that it must be the claimant, and the not the tort feasor, who had paid the applicable premiums; that such payment would not be inferred simply from the fact the claimant was an employee for whose benefit the insurance had been arranged; and that since there was no evidence that the Claimant had paid or contributed to the cost of the insurance policy, the insurance exception did not apply and the payments from the insurers must be deducted from the award of damages.”

22.	The Applicant submits that this case is not the same and that there are differences between Gaca and this case.  She submits that she qualifies as someone who is entitled to the benevolence exception in respect of the monies which were paid by a third party, namely the Norwich Union, as an ex gratia payment to her and that she is entitled to the money.  Although she has not specifically said so in the course of her submissions, I take her to agree that in fact if she is right about that and she succeeds on her claim in this case for damages, then she will in effect get double recovery.  She, however, submits that she is entitled to do so and under the common law rule that ex gratia payments do not have to be taken into account.

23.	For my part, although I accept that Gaca is a case involving personal injuries, damages which are to be paid by an employer, nevertheless I cannot, for my part, see that there is any difference in principle in that situation and in the one with which the Judge was concerned.  It seems to me that either the Applicant receives the money in which case it goes to mitigate the damages for breach of contract.  Or she does not receive that money, then the full sum which is found to be due as damages for breach of contract will have to be paid by the Defendant.  In my judgment, she is not entitled to what would be double recovery.

24.	Accordingly, in my judgment, the Judge was right in respect of his ruling on that matter.  He did say in his June ruling that that had not been appealed by the Applicant and that time had not been extended for that Appeal.  I do not hold that against the Applicant in this case.  She takes the point that there was no order drawn up on that occasion and that the order that we are concerned with at this stage is the one in July.  Taking that nevertheless to be the case and that we are concerned with the July order, for the reasons which I have endeavoured to explain in my Judgment, the Judge was right to make that decision.  

25.	I turn now to a claim that the Applicant seeks to make in fraud against the Defendant and also for that matter DWL.  The Judge in his fifth ruling dealt with that in this way - it appears at paragraph 20 at page 103:  “I have not seen an appropriately drafted claim insofar as the allegations of fraud are concerned and I therefore do not give permission for the draft submitted to the Court prior to the 8th May 2007.”  Included with our papers is an Amended Particulars of Claim which I assume to be the one to which the Judge was referring.  It contains at paragraph 34 under the heading - “Fraudulent Misrepresentation or Deceit” – a claim which runs to 11 sub-paragraphs.  In fairness to the Applicant, she readily concedes that it is not in the form that it might be and indeed not in the form that she would want it to be.  The fact of the matter is that fraud is a very serious allegation to make against a party.  It is essential that when such an allegation is made it must be fully and properly particularised.  The Applicant in her submissions today has sought to explain how fraud arises, but for my part I am afraid I am no further on.  

26.	These allegations set out in the Amended Particulars of Claim remain non-specific.  They are generalised allegations of fraud and there is no attempt to plead precisely what are the allegations that are being made.  Further, I find it difficult to see what the end result of any allegation of fraud will be.  There is no specific pecuniary loss alleged in the proposed Amended Particulars of Claim and at present I am unable to see how such a loss can be made out and certainly not without seeing full and proper Particulars.  So insofar as that matter is concerned, once again, I have reached the conclusion that the Judge was right to refuse to permit the amendment of the Particulars of Claim to make that allegation.  I should add that the Amended Particulars make the allegations of fraud in respect of both the Applicant in the claim she makes but also on behalf of the foreign estate.  

27.	That leads me on to the final large topic - there are other subsidiary ones which I shall refer to in a moment - an allegation of negligence.  Once again, the Judge refused permission for the Amended Particulars of Claim which alleged negligence to be put before the Court.  The Amended Particulars of Claim as before him at paragraph 13 under the heading – “Particulars of Negligence, Breach of Contract and Breach of Statutory Duty” – allege some 14 different particulars.  As to those, the Judge said in his ruling, the fifth ruling of the 4th June, at paragraphs 21 and 22 which I shall quote:  “There is a potential claim on behalf of the estate of the deceased based on negligence of the employers in claiming to provide a safe system of work.  This claim has not been fully formulated.  As Mr Clutterbuck has pointed, out such a claim will extend very considerably the evidence in the case requiring expert evidence as to the conditions which should operate in Angola.  The claim has not been properly formulated in view of the fact that the amount to be recovered on behalf of the estate is not likely to be substantial.  It would in my judgment be disproportionate to give the Claimant further time to seek to advance such a claim.  My direction therefore in the exercise of the Court’s management powers is that the claim will proceed as originally drafted based on the allegation of breach of contract on the part of the employers.  In my view it would be a failure of the Claimant to put forward in acceptable form a Pleading containing such other claims as she has uncovered.  The time has come to impose a strict timetable with clear directions as to the way forward.”  Once again, I regret to say that in my judgment the Judge was right to say that the claim is not properly formulated.  

28.	There is no allegation of damages.  One can think of a number of situations in which damages might be claimed.  There might be a claim under the Law Reform (Miscellaneous Provisions) Act of 1934 on behalf of the estate for damages for personal injuries for the period before Jason Pope died, but there is no way of knowing what those damages could be.  There might be a claim for loss of earnings in that period.  Again, none of this is particularised.  In any event there is no reference in the Amended Particulars of Claim to any claim on behalf of the estate under the 1934 Act.  The most that can be said and has been said by the Applicant is that she seeks to bring a claim under the Fatal Accidents Act.  That cannot be a claim for a bereavement payment because she does not qualify under the statutory provisions for such a claim.  It could be a prospective claim for a dependency but again that is wholly unspecified, something which incidentally is equally applicable to the claim on behalf of the foreign estates.  

29.	In answer to the question from the Court as to what claims the Applicant wanted to put forward, I can perhaps say that for my part I found that the applicant had no real answer.  The fact is that if one is going to make such a claim it must be properly particularised.  What is being sought must at least be set out in the nature of the case, and none of this appears in the Particulars which were before the Judge.  In the circumstances, in my judgment, the Judge was quite entitled to make the decision which he did in the terms of paragraph 22 to which I have just referred.  It seems to me that the sooner the claim as it now stands is litigated and adjudicated upon the better.  Any other claims must wait until they have been properly formulated.  Again, for the reasons that I have endeavoured to explain in respect of that matter, in my judgment, the Judge’s ruling was not flawed and there is no real prospect of success of overturning it.

30.	There remain some other matters which are raised by the Applicant in her skeleton argument.  First of all there is an allegation that the Judge was wrong to refuse to include Diamond Works Ltd.  That comes about by a reference to them as a party in the Amended Particulars of Claim.  For reasons I have already given, it seems to me that the Judge was right not to allow that amendment to the Particulars of Claim and accordingly it does not arise.  There is earlier discussion in rulings by the Judge as to why he did not wish to allow the Applicant to go behind the corporate veil and join Diamond Works Ltd.  But essentially his decision now is on the basis of a refusal to allow the claim to be amended.  

31.	Finally, there is an allegation that the Judge refused to make Orders for disclosure, alternatively, that sufficient disclosure has not been given for the Applicant properly to formulate her claim.  Insofar as that is concerned, there is nothing in any of the rulings that I have seen that deals with applications for disclosure.  The Applicant in her current claim, if it is a relevant matter, can seek further disclosure but there is nothing in the order that is before us which in any way deals with that matter and accordingly, in my judgment, it is not something which can be dealt with by this Court.

32.	Finally – and I said finally before – there is an allegation that the Judge was biased against the Applicant.  I have to say that, having read all of the rulings and the seen the way in which the Judge was prepared to reopen the various rulings that he had previously made, it seems to me that he bent over backwards to act fairly and in an unbiased way to both of the parties in this case.  

33.	I suspect that what I have said will find no great favour with the Applicant.  Nevertheless and for the reasons which I have endeavoured to express for my part, I would refuse her permission on both appeals.

Lady Justice Arden:  

34.	I agree.  I would just like to add some short observations.  On the claim made on behalf of the foreign estates, I would like to add that I have considerable difficulty, without the citation of authority, in seeing how this court could properly under its procedural rule in CPR 19.8 appoint a person to represent a foreign estate that is the estate of a person who died domiciled abroad, unless the person to be appointed shows that he or she is recognised by the law of the place where the deceased was domiciled at the date of his death as having the ability under that law to deal with the assets of the deceased.  But this matter has not been fully argued, and it is not necessary to determine it.  

35.	I would also like to add some observations about the benevolence exception.  At clause 5.5 of the employment contract of debate, Mr Pope stated: 

“5.5  The Contractee shall be entitled to a life cover policy, which in the event of death, shall be payable to a person nominated in writing by the Contractee.  This policy shall be equivalent of 60 (sixty) times the Contractees’ basic monthly salary at the time of death.  Should the Contractees fail to nominate a beneficiary, the Company shall pay those persons, who in the opinion of the Company and at its sole discretion, are the most legally entitled.  In the even of a disputed claim, the company will deduct from the value of the indemnity, the cost of all legal expenses incurred by the company in the course of settling the claim.”

36.	The ex gratia payment in issue in this case was made pursuant to an insurance claim made by Branch Energy Limited, the employer or its parent company, on the insurer of the parent company.  The insurer was Norwich Union, which did not accept liability.  Mrs Pope properly accepts that, had the Norwich Union accepted liability and paid promptly, Branch Energy could have treated the claim as a sum which could be deducted from the claim made under Clause 5.5.  And that would be so even if the claim was made to Mrs Pope as the beneficiary for when the policy was written in trust by the late Mr Pope.  Mr Pope had no contractual right to payments over and above that contracted for clause 5.5, and as my Lord has explained, he would get double recovery if he was entitled to the claim under Clause 5.5, unaffected by the payment made by Norwich Union.  It is the principle of double recovery which is of paramount consideration.  The claimant will, of course, be entitled to a claim for late payment.

37.	I would like to make this observation.  At page 91 of the bundle, in the course of the fourth ruling, the judge says that for the avoidance of doubt the effect of this ruling is that the defendants are to be entitled to treat the Norwich Union monies held in an escrow account as part payment of their contractual liability towards the estate of Jason Pope.  I would like to say that I take the words “part payment” to mean that there will only be a discharge of any part of a liability under Clause 5.5, where the sums to which, when full payment is made of the contractual entitlement.  Simply putting the names into an escrow account is not part payment.

38.	I would also like to add a point about the appeal against the January order.  Mrs Pope submitted that it was not within the power of the judge to rehear the matter once he had determined it, and the order drawn up, which happened on 31 January 2007.  But it is important to note that the respondent to this application was not present at that hearing.  CPR 23.11 provides that, where an applicant or a respondent fails to attend a hearing of an application, the court may proceed in their absence, and that was precisely what the judge had done.  But sub‑paragraph 2 goes on to provide: 

“23.11 (2) Where – 

(a) the applicant or the respondent fails to attend the hearing of an application; and 

(b) the court makes an order of the hearing, 

the court may, on application or of its own initiative, relist the application.”

And so it was within the powers of the judge, in that very special situation where he had not have one of the parties before him, to re-list the matter and to rehear it.

39.	I would like also to add expressly that I concur with what my Lord said at the outset of his judgment about having considerable sympathy for the position of Mrs Pope.  Mrs Pope and all her family have suffered greatly, but these proceedings cannot provide a means of remedying that.  I would also like to make tribute to the thoroughness, skill and patience with which Mrs Pope has presented her case, and would also like expressly to concur with what my Lord said about the conduct of the case by the judge.  

40.	Accordingly, I agree with my Lord that this application must be dismissed.  The effect of so doing is that parts of the order of 19 July at paragraph 5 of that ruling take effect because it was expressed to be a condition on dismissal of the application.  Looking, however, at that order, I note that provision was made in paragraph F for a case management conference before the judge on 6 November 2007, and that under paragraph I, the parties were to make submissions as to costs in the previous hearings at that application.  I would direct the appellant to make a further appointment for that case management conference, and that she should therefore take those steps within fourteen days of today.

Mr Clutterbuck:   

41.	My lady. That hearing was vacated because when we heard of today’s date and I understand because it has been relisted by 6 December.

Lady Justice Arden:

42.	Then I need not make any further directions.