Subject: The impact of the findings in the Jet2 Holidays Limited v Hughes & Hughes  EWCA Civ 1858 on the development of the Pre-Action Protocol, as considered by the Civil Justice Council.
Late last year the Court of Appeal handed down a landmark ruling confirming that the High Court did have jurisdiction to commit the respondents in the Jet2 Holidays Limited v Hughes & Hughes  EWCA Civ 1858 for contempt of court for submitting false statements of truth at the pre-action protocol stage. A year on, the Civil Justice Council is considering the effects of the findings of Sir Terence Etherton MR, Hamblen LJ (now Lord Hamblen, Justice of the UKSC), and Flaux LJ in the context of Pre-Action Protocol Review.
In the Jet2 Holidays Limited, the respondents booked an all-inclusive package holiday with the appellant. The respondents later gave notice to the appellant of a claim for damages for holiday sickness – they alleged that they had contracted food poisoning as a result of eating contaminated food or drink at the hotel. In purported compliance with the Personal Injury Claims Pre-Action Protocol (PAP) each respondent provided the appellant with witness statements describing how they believed their sickness was caused as a result of the undercooked food and unhygienic conditions in the Spanish hotel. Each respondent signed a statement of truth contained within their respective witness statements.
The appellant subsequently obtained various images, videos and comments posted by the respondents on social media during their holiday on which both respondents and their children appeared physically well and seemed to be having an enjoyable stay at the hotel. The appellants rejected the respondents’ potential claim, and the respondents decided not to pursue their claim for damages further. As a result, the proceedings were never issued against the appellant.
In turn, the appellant sought permission to commence committal proceedings against the respondents for the contempt of court under CPR Part 81 on the basis that the allegedly false witness statements were made by the respondents, verified by a statement of truth, contrary to CPR r.32.14. HHJ Godsmark QC, sitting as Deputy High Court Judge, granted permission and listed the committal proceedings for a CCMC. However, at the CCMC hearing, which was listed before a different judge, a question arose as to whether or not the High Court had jurisdiction to commit in the light of the fact that no proceedings had ever been issued. Eventually, HHJ Robert Owen QC concluded that the High Court did not have such jurisdiction and struck out the application.
On the appeal from that decision the Court of Appeal unanimously held that the High Court did in fact have jurisdiction to commit for contempt of court even though no claim for damages had been issued. It was held that it was sufficient that the false statements, endorsed by the statements of truth, were used during the pre-action protocol stage. In the words of the Lords Justices:
“36. A dishonest witness statement served in purported compliance with a PAP is capable of interfering with the due administration of justice for the purposes of engaging the jurisdiction to commit for contempt because PAPs are now an integral and highly important part of litigation architecture.”
The decision has had a significant impact on the law around contempt and how the parties view pre-action correspondence. Firstly, CPR r.32.14 has been amended to reflect the Jet2 Holidays Limited v Hughes decision.
Secondly, the rules around bringing contempt proceedings have been simplified by the introduction of an updated version of CPR Part 81, which came into in force on 1 October 2020. The new version of Part 81 has reduced the number of rules from 38 to 10, which lay out a clear procedure for the commencement of contempt of court proceedings. The new approach for punishment in contempt proceedings was considered by the High Court in the recent decision in Oliver v Shaikh  EWHC 2658 (QB).
Thirdly, the Civil Justice Council (CJC) has launched a review of the Pre-action Protocols. The CJC is currently running a survey inviting anyone with experience of, or an interest in, Civil Procedure Rules to express their views on Pre-action Protocols. The survey will be open until Friday 18 December 2020.
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