John-Paul Swoboda discusses the case of Pal, regarding cosmetic surgery abroad and the issue of jurisdiction.
In May 2016 the Claimant, Lisa Pal, underwent elective cosmetic (breast enlargement) surgery at a clinic in Genk, Belgium. The first Defendant was the surgeon and the second Defendant the clinic. It was the Claimant’s case, brought in tort and contract, that the surgery was negligently undertaken. The surgeon and clinic challenged the jurisdiction of the court.
As this was a claim issued prior to the end of the EU Withdrawal Agreement implementation period EU law was to be applied to determine the issue of jurisdiction. Further, as an EU law case, the issue was whether jurisdiction could be established under EU law. There is no issue of justiciability in an EU law case; if the claim meets the requirements, there is no element of discretionary judgment for the court.
Although the claim had been brought in tort as well as contract, it was accepted by the time of the jurisdiction hearing that “harmful event” occurred in Belgium meaning the requirements to establish jurisdiction for the claim in tort in this country could not be established. Conversely, as the Defendants accepted this was a consumer contract, the relevant issue under Brussels Recast (the EU Regulation which determines matters of jurisdiction) was whether it was the surgeon or clinic, or both, who had entered into the contract for the surgery with the Claimant.
Ambiguity as to whether the clinic or clinician (or both) is the correct defendant in matters concerning private healthcare are familiar to clinical negligence practitioners. Indeed, such matters were considered recently by the Court of Appeal in Hughes v Rattan  EWCA Civ 107. The determination in that case (concerning alleged dental negligence) of whether the correct defendant was clinic or clinician required consideration of issues such as non-delegable duties and vicarious liability. But such considerations apply where the applicable law is English law, and, in Pal, the applicable law pursuant to Rome I (contract) and Rome II (tort) was Belgian law.
Master Cook had the benefit of three Belgian lawyers to determine the contractual relations in this case: whether there was a contract for medical services with the clinic (which would cover the surgery); a ‘doctor out’ contract (which would not cover the surgery); a direct contract with the surgeon for the surgery; or something else. Master Cook had “no hesitation” in concluding that there was ‘a good arguable case’ that the Claimant entered into a contract with the surgeon. But in respect of the clinic the only side to adduce direct evidence as to the contractual arrangements was the clinic and that evidence strongly suggested it was a ‘doctor out’ contract. There were two Belgian law experts who did suggest there was ‘a good arguable case’ the clinic contract included the surgery, but one expert’s report fell afoul of “practically every requirement” of the CPR so Master Cook placed no weight on it, and the other proceeded, said Master Cook, on an incorrect factual basis. On this basis it was concluded the Court did not have jurisdiction over the claim against the clinic as there was no good arguable case that the clinic had a contract with the Claimant which covered the surgery.
This case highlights the additional complexities when dealing with a clinical negligence claim where the alleged negligence or breach of contract arises in a different jurisdiction. All clinical negligence claims are expert led, but that is even more true in foreign clinical negligence claims. At the jurisdiction stage, the expert who does most leading is the expert in foreign law, which means that getting an authoritative and reputable foreign law expert is critical.
It might be thought that a decision to exclude the clinic as a Defendant at the jurisdiction stage, on the basis that there was not a good arguable case in contract despite two Belgian law experts suggesting the contrary, is harsh. The analysis of Master Cook in this case suggests that decision was reached partly because the clinic engaged and provided exculpatory contractual information but also because their expert was the expert the Master preferred.
The difference between the position in Pal, a claim determined under EU law, and the position post-Brexit is that the tort gateway will be wide enough to accommodate most clinical negligence claims (post Brownlie v FS Cairo (Nile Plaza) LLC  3 WLR (Brownlie No. 2)). However, that would still not resolve the complexity arising from whether the clinic, clinician or both may be held liable, as the Court may need to consider foreign law doctrines of equivalence of vicarious liability and/or non-delegable duties, if such exist. But even if one can push the clinic (as well as the clinician) past the tort or contract gateway in a post-Brexit case, there will be a further battle to determine whether the claim is justiciable; whether the Courts of England and Wales are the proper forum.
 A stark contrast here between the position where EU law applies and the position post-Brexit, as determined in Brownlie v FS Cairo (Nile Plaza) LLC  3 WLR (Brownlie No. 2).