07
Sep
20
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Activist Edition

Last week we at 1CL watched with interest as the Home Office, Bar Council and Law Society slugged it out over whether it’s appropriate to describe immigration lawyers as ‘activist’ lawyers. Following a Civil Service retraction of the term, the Home Secretary tweeted it again, prompting the Bar Council to tweet the following: “’Activist lawyers’ again? Really?  Doing your job is now activism, it seems. We are wondering what an ‘activist Home Secretary’ does. #ChangeTheRecord.” We’re sure it’s only a matter of time before the Lord Chancellor intervenes in defence of the profession. Whatever the rights or wrongs of this rather unedifying dispute, however, we at 1CL are never ones to let a bandwagon rumble past unnoticed, and so we present to you this week’s special Activist Edition.

 

Industry Activism: The Launch of the Save Future Travel Coalition

September marked the beginning of a cautious return to normality for many, with schools returning and some workers returning to workplaces. However, against the background of quarantine rules which the transport secretary acknowledged last week to be confusing, a V shaped recovery continues to elude the travel industry. In an effort to increase pressure on the government to support that recovery, associations across the travel industry have formed the Save Future Travel Coalition. The coalition partners are seeking to build on the work of ABTA’s Save Future Travel campaign launched in April, by collaborating to raise awareness in Parliament of the need for tailored support for the industry. That need is highlighted by research by ABTA revealing that 39,000 jobs in the industry have already been lost or are at risk. Just last week, Tailor Made Travel (UK) Limited was the latest casualty to be placed into administration.

The Save Future Travel Coalition has set out five common asks which it will be pursuing.

  1. Regionalise quarantine: moving to a regionalised quarantine and Foreign Office travel advice policy, and seeking better co-ordination between the four nations of the UK.
  2. Introduce testing: to enable the resumption of travel to major destinations and global trading partners, such as the Canaries or the US, which would mitigate the risk of infection from higher risk countries.
  3. Grant an Air Passenger Duty holiday: to incentivise consumers to book and boost travel companies ahead of summer 2021.
  4. Provide recovery grants and other business support measures: target support at SME businesses, including travel agents, tour operators and DMOs, to help these businesses through to the end of quarter one 2021, which is the next major travel period at Easter 2021. The Government can support these businesses through the issuing of tailored grant support, building on those offered to retail, hospitality, and leisure businesses earlier in the crisis, as well as extending other business support measures into 2021/22, including rates reliefs and VAT deferrals.
  5. Give ongoing salary support: with the furlough scheme drawing to a close at the end of October, the Government should consider extending support for businesses that have not seen a significant recovery in revenues, as has happened elsewhere such as Australia. Targeting salary support where it is needed until March 2021 would reduce overall costs to HM Treasury and could preserve tens of thousands of jobs in travel.

Regionalising quarantine could address some of the frustrations felt by travellers, and also foreign governments, in relation to decisions about which countries are affected by quarantine rules. A controversial example in the last week has been Greece. There have been reports of worrying infection rates on islands such as Zante, but why should a spike on one island lead to blanket rules affecting the whole country? The difficulty, however, may be in making workable rules addressing local spikes. It is relatively straightforward to apply rules to individual islands, but making clear rules which are easy to follow and to apply which address regional infection rates is likely to be more challenging.

Testing at airports is something we have written about before in the Weekly Roundup. The problem remains ensuring confidence in the accuracy of the results of any testing regime. However, the idea now has the backing of the Labour Party with the shadow Secretary of State for the Home Department having written to the Home Secretary on 4 September calling for a review in to quarantine policy which “should include outlining options for a robust testing regime in airports and related follow up tests, that could help to safely minimise the need for 14 day quarantine”.

Perhaps the hardest sell of the coalition’s five asks is ongoing salary support. It is true that the furlough scheme is ending before the sector has recovered, but unfortunately the same could be said about many workers and sectors.

Hopefully this coalition will succeed in obtaining cross party support for a framework which balances the need to ensure the safety of travellers and to secure our fragile progress in containing the virus, against the need to save the travel industry and the many jobs which depend on it.

About the Author

Ella Davis was called to the Bar in 2013. She acts for both Claimants and Defendants now undertakes work in the cross border field on behalf of both Claimants and Defendants. She has particular expertise in claims involving allegations of fundamental dishonesty and has a good deal of experience in conducting trials around the issues which arise from such allegations.

 

A Flurry of Activity: the Breathtaking Speed of the German and Austrian Court Systems

We at 1CL never indulge in national stereotypes, of course, but we were interested to learn this week that the legal systems of both Germany and Austria appear to operate with an efficiency that Central London County Court, for example, can only dream of.

First, the District Court of Frankfurt has delivered judgment in what is believed to be one of the first Covid-19 cancellation claims. The German Claimant had booked a package holiday to Ischia, flying into Naples, which as attentive readers will be aware was having a hard time of things with Covid-19 in March this year. The holiday was due to start on 14th April, but (somewhat understandably) the consumer got cold feet in March, and cancelled the trip on 7th March, ten days before the German foreign ministry issued a general travel warning covering Italy. The tour operator accepted the cancellation, but charged its standard cancellation fee.

The disgruntled tourist sued, seeking a full refund on the basis that the presence of the pandemic at the place of destination amounted to ‘extraordinary circumstances’ entitling him to a full refund under the German equivalent of the Package Travel and Linked Travel Arrangements Regulations 2018. The tour operator defended the claim on the basis that since the German foreign ministry had not at the time of cancellation advised against travel to the destination, the relevant provision was not engaged (an extension of the argument currently being raised by On the Beach and Loveholidays in relation to cancellation refunds).

The German court did not accept the Defendant’s argument. It found that at the time of the cancellation, the implications of the pandemic in the Naples area were serious enough to constitute extraordinary circumstances, and the cancellation therefore attracted a full refund. The advice, or lack of it, from the German foreign ministry was not determinative of whether a holiday could in fact proceed at the time of cancellation; any subsequent advice, or lack of it, was irrelevant to the issue before the court, as was any subsequent cancellation, or lack of it, on the part of the tour operator.

Meanwhile, the group action against the Austrian ski resort of Ischgl is about to get under way. Regular readers will recall that the local authorities at the resort are accused not only of failing to take rigorous enough steps in response to an outbreak of illness there, but of attempting to cover up the problem. In the event, more than 6,000 people across Europe and North America are thought to have been affected by the outbreak, of whom almost 1,000 have brought a group action against the resort authorities via an Austrian consumer protection association. The claims hinge on the action – or lack of it – taken by the authorities in response to a warning on 4th March from the Icelandic authorities that a group of Icelandic tourists had tested positive for Covid-19 after returning from the resort. Notwithstanding this, however, the resort remained open and no action appears to have been taken in response to the warning until 13th March, when Ischgl was quarantined. Remarkably, a study has shown that 42% of Ischgl residents have antibodies for Covid-19, suggesting that the area has the world’s highest infection rate.

So there’s good news and bad news for the people of Ischgl: on the one hand, their public authorities may be landed with an enormous bill for failing to close the resort timeously, but on the other, they may be the first people in the world with a shot at herd immunity.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021.

 

Active Ingredients?

“Chicken or fish?” In-flight meals are coming home.

One thing I’m certainly not missing about international travel is in-flight meals. I’m quite happy not to be eating freezing cold salads, too-small pieces of too-sweet cake, and unspecified “fish”. Or (as happened to me once) being served the last meal on the ‘plane, which another customer had just rejected for looking “a bit minging”.

But not everyone agrees. There are reports this week of some airlines making their food available for people to eat at home. Sadly the news reports don’t say whether you have to go to a check-in desk to get a takeaway, or whether the food is delivered – and, if so, by what form of transport (airlift?).

And the news reports don’t touch on the subject of this article, which is the difference between the liability regime for in-flight meals served – er – in-flight and those eaten in the relative comfort of home.

If you were made ill by an in-flight meal consumed at home, the recourse would be under the Consumer Rights Act 2015. A takeaway in-flight meal would be “goods”, which are required to be fit for purpose and of satisfactory quality, which contaminated food is not.

The position is quite different for an in-flight meal served on an international flight. If a passenger were made ill from food served in flight the carrier would be liable under the Montreal Convention if this was an “accident”. Accidents are unexpected or unusual events, external to the passenger (Air France v Saks). US courts have held that a passenger who broke a tooth on a foreign body in an in-flight meal suffered an “accident” (Bousso v Iberia Airlines of Spain, S.A, 1998 WL 148422) and customers who were mistakenly served alcohol or gluten and made ill as a result have been awarded compensation (Scala v. American Airlines, 249 F.Supp.2d 176 (2003), Schaefer-Condulmari v. U.S. Airways Group 2012 WL 2920375).

So whether eaten at home or on a ‘plane, there is a form of strict liability for injuries from in-flight meals. And if you eat a meal at home and suffer an injury, you’ll have 3 years to sue rather than the 2 you’d have under the Montreal Convention.

Tempted?

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.

 

Activating Experts: the First Post-Griffiths Appeal, Turpin v TUI

Holiday sickness claims have plagued the travel industry for several years. Following an increase in all-inclusive holidays, there was an inevitable rise in holiday sickness claims. Whilst Wood v TUI [2018] changed the landscape for these claims, leading to claims being more readily dismissed, the recent decisions of Griffiths v TUI [2020] and Turpin v TUI (2020) indicate that the tide may be turning.

In many holiday sickness claims, particularly those which are of a low value, the court only has the benefit of medical evidence from the Claimant. It has been commonplace in the defence of these claims for criticisms to be made of the expert evidence obtained, such that the claim may be dismissed on the basis that causation is not made out. Often, Defendants point to the dicta in Wood, suggesting that an expert has failed to consider and eliminate other causes of illness or that their reasoning is insufficient. This approach has led to a number of holiday sickness claims being dismissed at trial. Griffiths, however, will certainly impact upon the way these claims are defended. In those claims concerning uncontroverted expert evidence, i.e. evidence that is undisputed, the court should not treat that evidence in the same way it would if it were considering controverted expert evidence. Provided the evidence is not a bare ipse dixit, the court must assume that there is “some reasoning which lies behind the conclusion which has been reached and summarised, and that this reasoning is not challenged”.

The consequence of this decision is that many low-value holiday sickness claims are likely to be successful, given that the Claimant’s medical evidence is usually the only expert evidence that is permitted. There is also a greater likelihood that Defendants will want their own expert evidence in lower value fast track claims. However, whether the courts will consider that obtaining such evidence is in accordance with the overriding objective is another matter. There will no doubt be an increase in requests to cross-examine medical experts at trial, such that a Defendant has an opportunity to demonstrate the conclusions reached were ipse dixit or factually incorrect.

The decision of Turpin, albeit persuasive only, further emphasises the appropriate weight to be placed on evidence in holiday sickness claims. Often, Defendants do not call witnesses to trial and disclose substantial documentary evidence to indicate that the food hygiene systems in place were entirely satisfactory. It is not unusual, for example, to see an audit report exhibited to a witness statement that indicates a food safety score of 90-100%, as was the case in Turpin. However, HHJ Walden-Smith indicated that the audit referred to was “not as powerful as TUI seek to suggest…” The fact that TUI did not call anyone to trial to be cross-examined about the audit, nor regarding the manner it was undertaken, should have led to the first instance Judge acknowledging that this evidence was not without its limitations. Consequently, it is likely that Defendants will attempt to call live evidence at trial from witnesses who can attest to such evidence.

It does appear that the tide is turning in the courts’ consideration of holiday sickness claims. Although it remains unclear whether TUI intends to appeal the Griffiths decision, it appears that the ramifications of this decision will lead to defendants fighting these cases more vigorously.

About the author

Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

 

…And Finally…

Always up for a bit of street theatre, we were sorry to miss the Lawyers for Extinction Rebellion protest outside the Law Society, not a stone’s throw from 1CL, on Friday. The group campaigns for the Law Society and Bar Council to declare a climate emergency, adopt a green code of conduct, and clarify that lawyers involved in XR protests will not be subject to disciplinary action. All laudable aims, we are sure, but neither the Law Society nor the Bar Council regulates the respective branches of our profession, these tasks being undertaken by the Solicitors’ Regulation Authority and the Bar Standards Board respectively. Honestly, you’d think lawyers would know these things.

In further exciting news, those legions of readers pining for sight of Sarah Prager, and for an update on her hols this year, will be interested to know that she will be co-presenting the 1CL Thursday Webinar this week, with Jatinder Paul, of Irwin Mitchell. The never less than active pair will be discussing the recent decision in Griffiths v TUI.

The link to sign up to the webinar is here:

 

Written by or involving: Sarah Prager, Andrew Spencer, Ella Davis, Dominique Smith

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