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KXL & Others -v- Murphy & Anor  EWHC 3102 (QB)
The High Court, on 2 December 2016, handed down an important judgment dealing with the issues arising out of the provisions of the Foreign Limitation Periods Act 1984 and whether the circumstances of this case warranted a disapplication of a foreign law limitation period either on grounds that it offended public policy or on the grounds that the Claimants has suffered undue hardship – as prescribed by s.2 of the 1984 Act.
The claims concerned assaults said to have been committed in Uganda but which were issued in this jurisdiction. The Defendants raised as a defence the provisions of the Ugandan Limitation Act 1959 (in essence, 3 years from reaching the age of majority at 18) whereby the claims were statute barred. It was common ground that the applicable law was Ugandan law so the issue came before the Court as a Preliminary Issue of law. The Claimants contended that although the lex causae was Ugandan law the content and operation of its limitation provisions were contrary to public policy and/or its operation would cause the Claimants undue hardship within the meaning of section 2 of the 1984 Act because Ugandan law made no provision for an extension of time on grounds identical or similar to section 33 of the English Limitation Act 1980.
Mr Justice Wilkie, in a careful and closely reasoned judgment ruled that the provisions of the Ugandan Limitation Act 1959 were not contrary to public policy as although some jurisdictions made provision a discretionary extension of time for the commencement of proceedings other jurisdictions did not and described the Claimants’ submissions in this regard as “bold”. The learned Judge similarly dismissed the argument that the Claimants had suffered undue hardship within the special meaning to be attributed to that term as it is found in section 2(2) of the 1984 Act, saying that he could answer that question with a clear “No”.
The Claimants have not sought permission to appeal.
The implications of this judgment are important in that they confirm that the provisions of the 1984 Act are still alive and well. The concept underlying the introduction of that Act was that the English courts should not take a parochial view of foreign law provisions and treat them as subordinate to English law. Instead the principle should be that the lex causae should determine all substantive law issues in a claim which occurred abroad, subject only to an ability on the part of an English court to find that the foreign law provision was contrary to public policy (a high threshold) or caused a particular claimant particular hardship beyond that which is inevitable if the foreign limitation provision is applied (a similarly high threshold).
A further consequence of this decision is that it may serve to dampen enthusiasm for forum shopping in the area of tort claims.
Laura Johnson appeared for D1; John Ross Q.C. and Matthew Chapman appeared for D2.
Lady Christine Brownlie -v- Four Seasons Holdings Incorporated  EWCA Civ 665
On 3 July 2015 the Court of Appeal handed down judgment in Brownlie v Four Seasons Holdings Inc  EWCA Civ 665 a fatal road traffic accident and personal injury claim arising out of an “off-package” excursion contract performed in Egypt. In largely dismissing the Defendant’s appeal against the Order of Tugendhat J ( EWHC 273 (QB)), the Court held that the Claimant was permitted to pursue her claims in contract and for loss of dependency (pursuant to the Fatal Accidents Act 1976) in the English Courts.
The Court also concluded (surprisingly) that “damage … sustained within the jurisdiction” for the purposes of CPR Part 6, PD 6B, para 3.1(9) was, in a personal injury context, referable only to direct injury/damage sustained in the jurisdiction where the tort was committed. The first instance line of High Court authority commencing with Booth v Phillips  1 WLR 3292 (QB) and Cooley v Ramsey  EWHC 129 was doubted and, effectively, overruled.
The losing Defendant was granted permission to appeal by the Supreme Court, following which the Claimant was granted permission to appeal the rejection of the Claimant’s claims which were founded on losses sustained by the estate of the Deceased.
John Ross QC and Matthew Chapman of 1 Chancery Lane (instructed by Messrs Kingsley Napley) acted for the successful Claimant. Permission to appeal to the Supreme Court has been granted and the appeal is likely to be heard towards the end of May 2017.
Winrow v Hemphill  EWHC 3164 (QB, Slade J) 9 July 2014
A preliminary issue trial on a novel point of law arising out of the application of Article 4 of the Rome II Regulation (Reg 864/2007) on applicable law in tort to a road traffic accident in Germany. This was the first decision in the English jurisdiction in respect of this issue.
Hyde v Sara Assicurazioni  EWHC 2881 (QB, His Honour Judge Moloney QC) 28–29 July 2014
This preliminary issue trial concerned the application of Italian law to a claim (arising out of a catastrophic road traffic accident) which was brought against an Italian insurance company. The preliminary issue gave rise to complex issues of Italian law.
Janice Campbell v Thomas Cook Tour Operations Ltd  30 October 2014 (CA)
This appeal concerned the a point of law arising out of the proper construction of the Equality Act 2010 (in the light of Regulation (EC) No 1107/2006) in the context of a UK tour operator’s duties, if any, towards a disabled consumer/ passenger transiting through an airport situated outside the European Union.
Wall v Mutuelle de Poitiers Assurances  QB 53 (QB);  EWCA Civ 138; LTL
 QB 53 (QB)
This appeal arose out of a preliminary issue trial on the proper meaning of Articles 1.3 and 15 of the Rome II Regulation in the context of permission to rely on expert (medico-legal) evidence which was to be adduced on behalf of an Englishman who suffered spinal cord injury during the course of a holiday in France. Liability was conceded and it was common ground that the English Court had jurisdiction. However, the applicable law was that of France. The Defendant sought to restrict the Claimant's medico-legal expert evidence to the kind of French or "French-style" expert evidence that might be permitted by a French Court. The Defendant's arguments were rejected at first instance ( EWHC 53 (QB)) and subsequently on appeal. The Court of Appeal gave important and timely guidance on the proper approach to expert evidence in claims of this kind (and on the meaning of Articles 1.3, 15 of and recital (33) to the Rome II Regulation). Matthew Chapman, led by Robert Weir QC, was instructed on behalf of the Claimant/Respondent.
Brownlie v Four Seasons Holdings Incorporated  EWHC 273 (QB, Tugendhat J)
(This decision was appealed by the losing Defendant – see above)
This case concerned a fatal accident occurring on a safari tour in Egypt - the tour was arranged over the telephone from England. Issues concerned entitlement to serve proceedings on a Canadian company out of the jurisdiction
Ford v Malaysian Airline System  EWCA Civ 1163 (judgment date: 27.9.13)
Court of Appeal guidance on the meaning of "accident" where referred to in Article 17 (1) of the Montreal Convention.
Wall v Mutuelle de Poitiers Assurances
 QB 53 (QB)
The Claimant sustained catastrophic injury in a road traffic accident in France. Liability was not in issue, judgment had been entered and it was common ground that, by virtue of Rome II, French law applied to the assessment of damages. The Claimant wished to rely on expert evidence from a panel of expert witnesses of the kind that might conventionally be instructed in an English case where catastrophic injuries had been sustained. The Defendant French insurer (sued direct in the English Court) argued that the Claimant was restricted to the expert evidence that would usually be placed before a French Court so that, so far as possible, the English Court would be informed by French practice in the assessment of damages. On a preliminary issue, the English Court was asked to determine whether the issue of which expert evidence the court should order fell to be determined: (a) by reference to the law of the forum (English Law) on the basis that this is an issue of evidence and procedure within Article 1.3 of Rome II; or (b) by reference to the applicable law (French law) on the basis that this is an issue falling within Article 15 of Rome II. It was held that the approach suggested by the Claimant was the correct one and the issue of which expert evidence the court should order, being an issue of evidence and procedure, fell to be determined by reference to the law of the forum (that is, by reference to English Law). Matthew Chapman, led by Robert Weir QC, appeared for the Claimant.
Bloy & Ireson v MIB  QB;  EWCA Civ 1543
It was held that English law should apply to the assessment of damages where a claim was made against the MIB for an accident overseas (pursuant to regulation 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003) and that there was no reason for regulation 13 to be given anything other than its ordinary and natural meaning. While regulation 13 was inconsistent with the agreement that the MIB had with equivalent bodies in Europe, there was nothing in the relevant European legislation that required any different interpretation of the 2003 Regulations. The Court applied the same reasoning as the Court of Appeal in Jacobs v Motor Insurers Bureau  EWCA Civ 1208,  1 WLR 2609 (a case in which the MIB had obtained permission to appeal to the Supreme Court, but had then abandoned the same before the appeal hearing took place). Matthew Chapman appeared for the Claimants.
Matthew Chapman appeared for the succesful Claimants at first instance and in the Court of Appeal where the Defendant's appeal was dismissed (led by Alexander Layton QC in the Court of Appeal).
Kira Middleton v Allianz IARD V Erika Lee Middlenton
 EWHC 2287 (QB)
This matter arose out of a road traffic accident in France on 6th February 2002. The Claimant was left with injuries of the utmost seriousness. It was her case that French law, being the lex loci delicti, should apply to the liability issues. The Defendant insurers maintained that English law should apply. A preliminary issue trial was held to determine applicable law in accordance with sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995. The Claimant's arguments prevailed.
Matthew Chapman, instructed by Irwin Mitchell, represented the Claimant.
Van Niekerk v Carnival Plc & Anor.
This claim concerned further directions for a High Court trial that was listed a little over 2 months after a Pre-trial review in which further permissions for expert evidence were sought. The Claimant’s husband had died on holiday while he had been taking part in a diving excursion arranged by or through the Defendant cruise line operator. Liability, causation and quantum were all in issue. The Claimant brought a substantial claim for damages. The Claimant’s schedule of loss included, among other things, a claim for loss of financial dependency based on pension income. In correspondence the Defendant had queried the calculation of this head of loss. Approximately, two months before the date fixed for trial of liability and quantum the Claimant applied for permission to obtain and rely on a report from an expert forensic accountant on the investment growth rates relating to the financial dependency claim. Each party had obtained an expert medical report on the cause of death. The Claimant's expert was a histopathologist. The Defendant's expert was a cardiologist with experience in the cardiological aspects associated with diving. The issues considered at the Pre-trial review concerned: (i) whether permission should be granted to adduce expert accounting evidence; (ii) whether directions should be given for a joint statement by the cause of death experts; (iii) the appropriate order for costs.
HELD: (1) Permission was granted to obtain expert accounting evidence limited to the issue of investment growth rates. (2) There was potential value in the cause of death experts producing a joint statement, despite the risk that it would simply repeat their individual reports. (3) Although the Claimant had succeeded on her application to admit accounting evidence, it had been necessary because there was a deficiency in her case which the Defendant had pointed out some months earlier, and she had sought to adduce additional evidence close to the trial and in circumstances where it raised serious questions about whether the trial could proceed in the event that permission were granted. The issue about a joint expert's report had been a serious issue. Taking those issues into account, the proximity to trial and the matters on which the parties had argued, it was appropriate to consider the hearing as a pre-trial review. In those circumstances, the appropriate order for costs was costs in the case.
Matthew Chapman of 1 Chancery Lane instructed by Irwin Mitchell acted for the Claimant.
XVW & YZA v Adventure Life Signs & Gravesend Grammar School for Girls
 EWHC 575 (QBD)
A school and a specialist expeditions company were not liable for the rape of two pupils by a local man who had acted as a guide during an overseas school trip. Neither the school nor the company could be held vicariously liable for the assault, and since the attack had not been reasonably foreseeable it would not be fair, just or reasonable to define the scope of their duty of care to the girls so as to require them to have taken special precautions to avoid it.
Matthew Chapman acted for Adventure Life Signs
Williams & Debling v Fred Olsen Cruise Lines Ltd
 20 – 22 June and 15 July, Unreported, QB (Admiralty Court)
Claim brought by 4 Claimants against a cruise line company. While re-joining the cruise liner while it was alongside in Bilbao, two of the Claimants fell into the sea from the gangplank when the mooring lines on the vessel failed and it swung out from its berth. The claim was defended on the basis that the failure of the mooring lines was the result of an entirely unexpected and unforeseeable extreme weather in the form of a severe gust of wind. Both parties relied on expert opinion evidence from Master Mariners. The Claimants were successful in establishing liability. It was found that the Claimants could rely on article 3(3) of the Athens Convention and on res ipsa loquitur. However, it was also found that they had succeeded in proving that negligence or fault was the cause of their injuries quite apart from the assistance of article 3(3) and the evidential maxim.
Dawson v Broughton
(2007) 151 Sol J 1167
Private International law. Fatal road traffic accident in France. Establishes that the defence of contributory negligence to a claim in tort is to be treated as a matter of substance, rather than procedure for the purposes of section 11 of the Private International Law (Miscellaneous Provisions) Act 1995.
Baines v Baines
Unreported; 29 July 2008, QBD Liverpool
Preliminary issue trial to determine applicable law under ss 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995. Held: that section 12 of the 1995 Act should displace the general rule contained in section 11 and English law should apply.
Cosmos Holidays Plc v Dhanjal Investments Limited
Proceedings by a tour operator to recover its liability to consumers from a Kenyan Hotelier supplier. Considers proper construction of a contractual indemnity clause.
Barton v Golden Sun Holidays & Avlida
(2007) LTL 14/8/2007 (QBD)
Privte International law. Proceedings by a tour operator to recover its liability to consumers from a Cypriot Hotelier supplier. Considers application and meaning of article 6(2) of Judgments Regulation (EU (Council) Regulation 44/1001). Consideration of Kinnear v Falconfilms NV.
Godfrey v TUI UK Ltd
Ambit of package travel regulations and local safety standards defence.
Moncrieff & Moncrieff v Cosmosair Plc
Ambit of the regulation 15 cause of action in context of an unforeseen and unforeseen structural defect which had been caused by an earlier earthquake.
Pemberton & Ors v First Choice Holidays & Flights Ltd
Hurricane on Mexican coast which caused extensive damage – operational negligence and local safety standards.
Healy v Cosmosair Plc & Ors
LTL 15/8/2005 (unreported elsewhere)
LTL 15/8/2005 (unreported elsewhere)
In the circumstances, a package holiday operator was not liable for spinal injuries sustained by a holidaymaker who had fallen into a swimming pool in Portugal. Although the Portuguese safety requirements had not been complied with in relation to the requisite non-slip material around the pool, it was not possible to conclude on a balance of probabilities that H had slipped on floor tiles in the relevant margin.
Keppel-Palmer v Exsus Travel Limited & Royal Westmoreland Villas Limited
 All ER (D) 183
Large value quality complaint litigated in the High Court. Whether a package holiday within the meaning of the Regulations. Identity of the other party to the contract. Agency.
Wong v Parkside Health NHS Trust
LTL 16/11/2001;  EWCA Civ 1721; Times, December 7, 2001; Independent, November 27, 2001
There was no tort of harassment at common law before the enactment of the Protection from Harassment Act 1997. A campaign of rudeness and unfriendliness by colleagues did not amount to the intentional infliction of harm.