LISA PAL v DR LUC DAMEN & Anor

On a jurisdiction challenge under CPR Part 11, the claimant must establish a jurisdictional gateway on the good arguable case standard. The court should assess the available material if it can do so reliably. If the interlocutory evidence does not permit a reliable conclusion, a plausible, albeit contested, evidential basis may suffice.

Where medical treatment is arranged through a clinic, the contractual relationships must be identified from the factual and documentary evidence. A clinic may provide facilities and administrative services under one agreement, while the treating surgeon provides medical services under a separate agreement. A prior decision concerning an emergency hospital admission was distinguished where the patient had consulted the surgeon and freely chose to proceed.

The claimant, a UK-domiciled consumer, underwent cosmetic breast-implant surgery at a Belgian clinic. She alleged negligent treatment and advanced claims in tort and contract against the Belgian surgeon and the clinic.

Each defendant applied under CPR Part 11 to challenge the court’s jurisdiction. The tort gateway was no longer relied upon because both the events causing the damage and the direct and immediate damage occurred in Belgium. The remaining issue was whether, under Belgian law, the claimant had a consumer contract for medical treatment with the surgeon, the clinic, or both.

1. Jurisdictional standard. The claimant bore the burden of establishing a jurisdictional gateway. Applying the formulation in Goldman Sachs v Novo Banco [2018] UKSC 34, she had to provide a plausible evidential basis for the gateway. If the court could reliably decide an issue of fact on the available material, it should do so. If the interlocutory evidence did not permit a reliable assessment, a good arguable case could be established by a plausible, albeit contested, evidential basis.
2. Contract with the surgeon. The contractual documents and expert evidence established a good arguable case that the claimant entered into a contract for medical treatment and medical services with the surgeon. The court accepted the balanced and logical analysis of Mr Beer, including the treatment agreement, the clinic’s terms and conditions, and the agreement between the clinic and surgeon.
3. Contract with the clinic. The claimant failed to establish a good arguable case that the clinic was a party to the contract for medical treatment. The evidence supported two separate agreements: a doctor-out agreement between the claimant and clinic concerning facilities and administrative services, and a medical treatment agreement between the claimant and surgeon. The court could not conclude that there was an all-in medical treatment contract with the clinic.
4. Expert evidence. No weight was placed on Mr Steyvers’s report because it failed to comply with practically every requirement of CPR Practice Direction 35, including the duty to provide a balanced opinion addressing the available range of views. Mr Delvaux’s reasoning concerning the Court of Appeal of Liège decision was rejected as factually distinguishable: unlike the emergency patient in that case, the claimant had a pre-operative consultation and could refuse treatment or seek a second opinion.
5. Disposition. The court had jurisdiction over the contractual claim against the surgeon. It had no jurisdiction over the contractual claim against the clinic. Consequential orders were left for counsel to agree.

First-instance decision. No prior appellate decision is stated in the judgment.