Court of Appeal judges have expressed alarm that a breach of contract claim brought by a couple whose Arctic cruise was curtailed by the weather has already taken up 11 days of hearings in three separate courts. Giving lead judgment in Sherman v Reader Offers Ltd, Lord Justice Males said he was concerned that 'a cruise in which nobody died or was injured or suffered any lasting damage has now occupied seven days in the county court, two days in the High Court and a further two days in the Court of Appeal, and that a yet further hearing will be required before it can be concluded'.
Echoing the comment on proportionality, Lady Justice Asplin urged the parties to 'reach a pragmatic settlement' rather than embark upon another hearing 'which is unlikely to be particularly short'. Lord Justice Underhill suggested to the claimants that 'the time has come when they would benefit from professional legal advice’.
The Court of Appeal’s 30-page ruling sets out the reasons behind its rejection last month of an appeal brought by cruise operator Reader Offers Ltd against a High Court judge’s decision on a claim brought by Rosemary and Nicholas Sherman. They brought the action, in which they represented themselves, after a 16-day cruise in 2018 for which they paid more than £20,000 failed to navigate the North West Passage as advertised; because of ice conditions most of the cruise was spent on the west coast of Greenland.
According to the judgment, in their original claim the Shermans sought damages for deceit, misrepresentation, negligence and breach of Article 5 of the European Convention of Human Rights (right to liberty). They also alleged that the cruise vessel, the purpose-built expedition ship Fram, was unfit for purpose, its captain unduly timid and the food of poor quality.
A county court recorder rejected these claims, but on appeal Mrs Justice Collins Rice found in the High Court that the detailed itinerary had been an essential part of the contract. A jointly instructed expert gave evidence that although 2018 was an exceptionally bad year for ice, the conditions were not unforseeable as claimed by the cruise operator.
Following a hearing in March the CoA dismissed the operator's appeal and remitted the case to the county court. Noting that remission 'is not an opportunity to re-litigate matters', Lord Justice Males stressed in the judgment that claims such as for deceit, misrepresentation and negligence cannot be revived. 'During the hearing in the Court of Appeal, we urged the parties to reach a pragmatic settlement so that they can put this case behind them,' the judge said. 'I would repeat that urging. Even now it is not too late.'
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