18
Jan
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Agatha Christie Edition

As the world rolled up its sleeves and got to work vaccinating unimaginable numbers of people, we at 1CL dusted off the handsomely bound 1CL set of Agatha Christie murder mysteries, ready for the long haul before things get back to normal. But no sooner had we opened Volume 1 than, on 13th and 14th January, the Supreme Court live streamed the appeal in FS Cairo (Nile Plaza) LLC v Brownlie [2020] EWCA Civ 996, and on 14th January 1CL’s own Andrew Spencer and Dominique Smith starred in a webinar on cross border clinical negligence claims (available to view here). Then, on Friday, the Supreme Court gave judgment in the FCA business interruption insurance claims case, which, at seven months from beginning to end, must be one of the fastest pieces of litigation to reach the Supreme Court of all time (and certainly faster than the apparently never-ending litigation in Brownlie). We take our responsibilities to our readers seriously, as you know, so we’ll just have to wait and see which of the passengers on the Orient Express was the murderer (our money’s on the funny little Belgian chap with the moustache).

 

Murder is Easy (and so is issuing consumer contract claims post-Brexit)

Now that the transition period has ended, recast Brussels no longer applies to “new” cases starting in 2021. However, the UK has retained its jurisdictional provisions for consumer contracts, which now form part of domestic law.

The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 amend the Civil Jurisdiction and Judgments Act 1982 so as to insert new sections 15A – E to provide special jurisdiction rules in consumer (and employment) cases. These set out special rules for consumer cases – these being defined in s.15E in essentially the same terms as in recast Brussels – where the consumer is domiciled in the UK.

In such cases, the consumer can sue in the place where he is domiciled (regardless of where the Defendant is domiciled). If the Defendant is also UK-domiciled, the Claimant may also sue in the part of the UK where the Defendant is based.

This means that a Scottish-domiciled consumer Claimant can continue to sue an English-domiciled Defendant in England. Similarly, English or Welsh-domiciled consumers can continue to sue (say) French-domiciled Defendants in this jurisdiction. The Defendant can only sue a consumer Claimant in the courts of the Claimant’s domicile.

What about serving out in such cases?

CPR Part 6.33 (service out where permission is not required) has been amended, with effect from the start of this year. Beware – justice.gov.uk has not yet updated its website and continues to show the old rule! The new CPR 6.33(2) states:-

“The claimant may serve the claim form on a defendant out of the United Kingdom where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine under sections 15A to 15E of the 1982 Act and—

(a)  no proceedings between the parties concerning the same claim are pending in the courts of any other part of the United Kingdom; and

(b) (ii)  the defendant is not a consumer, but is a party to a consumer contract within section 15B(1) of the 1982 Act…”

This means that, in a “consumer case”, the English-domiciled Claimant can sue the Defendant in the courts of England and Wales; and can continue to serve out without the permission of the court.

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.

 

Death on the Nile (well, injury on the Lillooet, anyway)

The Supreme Court of British Columbia has handed down judgment in the case of Knight v Black 2021 BCSC 19, a case interpreting the 1974 Athens Convention (the “Convention”).  The Court was asked to determine the meaning in the Convention of a “contract of carriage”.

Canada is not a signatory to the Convention but has adopted Articles 1 to 22 into its national law and has extended their application to carriage in domestic waters[1]. The judgment in Knight v Black turned upon whether the claim came under the Convention, such that it was subject to its financial limits on damages[2].

The Claimant, Ms Knight, suffered significant injuries when the boat on which she was travelling hit a sandbar on the Lillooet River (the “River”) near Pemberton, British Columbia.  The boat trip had been arranged to identify any sites of erosion of the River’s bank, which it was feared might affect the stability of a nearby road.  Mr Devaney had instructed Mr Brodowski (both of whom were employees of Mainroad Howe Sound Contracting Ltd, a company contracted to provide highway maintenance services) to approach the Defendant, Mr Black.  It was subsequently agreed that Mr Black would transport individuals (including the Claimant) in his boat on the River for the reconnaissance trip in return for payment.

The Claimant contended that there was no contract of carriage for the purposes of section 37(2)(a) of the Marine Liability Act 2001, the provision which extended the application of the Convention to domestic carriage[3].  Article 1 of the Convention defines a “contract of carriage” as follows:

““contract of carriage” means a contract made by or on behalf of a carrier for the carriage by sea of a passenger or of a passenger and his luggage, as the case may be…”

The Claimant contended inter alia that the agreement was a charterparty and not a contract of carriage and, alternatively, that she was not a passenger because she was not privy to the contract.

The Court rejected these submissions and found that there was a contract of carriage.  There could be no deviating from the definition at Article 1; as such it was necessary only for there to be (a) a contract (b) made by a “carrier” (c) for the “carriage by water” of a (d) “passenger”.  Relying upon the analogous Scottish case of Cairns v. Northern Lighthouse Board and Calypso Marine [2013] CSOH 22 (Scot) the Court concluded that the Claimant was a passenger, notwithstanding that she was not privy to the contract.

Knight v Black is of persuasive authority to English courts.  The correctness of the decision is, in the writer’s view, beyond doubt.  The case is a heartening reminder that Courts will not entertain technical arguments in relation to the meaning of terms clearly defined within the Convention, especially when such arguments are an attempt to escape the Convention’s limitations.  It can only be hoped that it will act as a disincentive to claimants considering pursuing such arguments within the jurisdiction.

About the Author

Susanna Bennett was called to the Bar in 2017 and now accepts instructions across all of chambers’ areas of expertise. She is instructed by Claimants, insurers, local authorities and NHS Trusts, and has a particular interest in clinical negligence and travel law.

 

A Murder is Announced (in direct contravention of the DPA 2018, thus giving rise to a claim for data breach)

In 2018 British Airways (“BA”) was the victim of a cyber-attack whereby the attacker gained access to the personal (mainly payment-card) data of an estimated 450,000 customers. Customers of BA’s Reward scheme received notice between April and July 2018 that some of their information had been compromised, and it is said that a further breach occurred between August and September 2018, with this breach exposing customers using the BA’s app and website. BA determined the purposes and means of processing its customers’ data and was thus a controller within the meaning of s.6 of the Data Protection Act 2018 and Article 4(7) of the General Data Protection Regulation (EU) 679/2016. By, inter alia, collecting, recording, organising, structuring, and storing the personal data of its customers, BA was also processing that data within the meaning of s.3(4) of the DPA 2018 and Article 4(2) of the GDPR.

ICO Fine

In July 2019, pursuant to the statutory procedure set out in the DPA 2018, the ICO served a “notice of intent” on BA, in which the ICO stated its intention to impose a penalty of £183.39m for the 2018 data breach. The ICO, in its preliminary assessment, considered that BA had failed to comply with its security obligations under Articles 5(1)(f) and 32 of the GDPR.

On 16th October 2020 the ICO handed down a Penalty Notice of £20m. The reasoning is set out full here. In short, having regard to the factors set out at Article 83(1) and (2) of the GDPR, the Information Commissioner considered the following factors were relevant: the ICO determined the breach was serious in terms of its extent, nature and duration; but BA notified the commissioner promptly after the data breach; BA did not stand to gain financially as a result of the breach; BA had no previous infringements; BA fully cooperated with the investigation; and no special category data was breached. Together, these factors indicated a fine of £30m. This was adjusted downwards to £20m on the basis that BA took immediate remedial action (e.g., offered to reimburse financial losses arising from the cyber-attack) and promptly informed the data subjects of the breach; BA’s brand and reputation were adversely affected; and the wide reporting of the incident had the effect of increasing awareness amongst data controllers of the risks involved with failing to comply with the GDPR. It was also said that the effects of the Covid-19 pandemic on the airline industry warranted a further downwards adjustment.

Group litigation

In addition to the ICO’s investigations, BA are now facing the largest group claim over a data breach in UK legal history as a result of the 2018 cyber-attack. At present, more than 16,000 customers are seeking compensation for financial losses and/or distress and inconvenience suffered as a result of the breach. The legal bases of the claim include breach of statutory duty pursuant to s.13(1) of the DPA 1998 and/or ss.168 and 169 of the DPA 2018 and/or Article 82 of the GDPR. Damages are also sought pursuant to breach of contract and/or misuse of private information. It is likely the claim is going to be defended – last week BA issued a press release in which it was stated that liability is being vigorously denied. With the Supreme Court due to hear the appeal in Lloyd v Google LLC [2019] EWCA Civ 1599 at some point in 2021, this space is definitely one to watch.

About the Author

Henk Soede was called to the Bar in 2019. Since April 2020, he has been instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims. He acted as junior counsel in the jurisdictional challenge in Alli-Balogun v On the Beach, Meeting Point You Travel [2020]. He is eager to build on his experience in these areas​, but accepts briefs in all chambers’ areas of work.

 

Murder on the Orient Express (or, the Orient Express, murdered)

On Friday 15th January the Supreme Court gave the eagerly anticipated judgment in FCA v various insurers [2021] UKSC 1. A heavy-duty court comprising Lord Reed (President), Lord Hodge (Deputy President), Lord Briggs, Lord Hamblen and Lord Leggatt gave a unanimous judgment allowing the FCA’s appeals and dismissing the insurers’ appeals.

In summary, the court decided as follows:

  • The Court of Appeal found that disease clauses in business interruption insurance policies are triggered by the occurrence of one case of Covid-19 confirmed within the geographical scope of the clause. The Supreme Court were split as to whether the Court’s interpretation was correct or whether the insurers’ argument that each confirmed case of Covid-19 was a separate event which had to be examined on its own so as to determine whether it triggered the clause; but due to the Supreme Court’s findings on causation the issue fell away.
  • Prevention of access and hybrid clauses are triggered by various events. The Court of Appeal found that such clauses triggered by ‘restrictions imposed by a public authority’ were only triggered by mandatory legal provisions and not voluntary measures; the Supreme Court disagreed, and held that instructions and guidance issued by public authorities may amount to such restrictions if they are couched in mandatory terms, even if not carrying the force of law. The Court also held that ‘prevention of access’ and ‘inability to use’ clauses were to be interpreted so as to mean something more than ‘hindrance’, but that partial prevention or inability was sufficient. So where a policyholder is unable to use the premises for a discrete business activity, or is unable to use a discrete part of the premises for its business activities, this will trigger such clauses.
  • Perhaps most importantly, the business interruption losses consequent on public health measures taken in response to Covid-19 were found to have been caused by cases of the disease that occurred within the specified radius of the insured premises. This was because all the individual cases of Covid-19 which had occurred by the date of any government measure were equally effective proximate causes of that measure (and of the public response to it). It was therefore sufficient for a policyholder to show that at the time of any relevant government measure there was at least one case of Covid-19 within the geographical area covered by the business interruption clause. To this extent, this decision forms another exception to the ‘but for’ causation test; even but for the cases occurring with the geographical proximity to the business, the government measures would have been introduced, but applying the but for test would have the result that the clauses would never be triggered in any location, because the cases within one relatively small area would always be outweighed by cases occurring elsewhere within the country. There is a comprehensive analysis of causation in an insurance context at paragraphs 162 to 191 of the judgment. At paragraph 207 the distinction between the judgment of the Court of Appeal and that of the Supreme Court is identified:

“This interpretation of the policies arrives at a broadly similar result to that reached by the court below, but by a different route. The court below interpreted the disease clauses as covering the effects of each case of disease wherever in the country it occurs, provided that at least one case occurs within the radius specified in the clause. On the interpretation that we think makes best sense, only the effects of any case occurring within the radius are covered but those effects include the effects on the business of restrictions imposed in response to multiple cases of disease any one or more of which occurs within the radius.”

  • Almost all the policy wordings contained trends clauses which provided for business interruption losses to be calculated by adjusting the results of the business in the previous year to take account of trends or other circumstances affecting the business so as to estimate losses arising from the interruption. The Supreme Court held that such clauses should not be construed so as to take account of circumstances arising out of the same underlying or originating cause as the insured peril (namely, in the present case, the effects of the pandemic).
  • The Supreme Court determined that the decision in Orient Express Hotels Ltd v Assicurazioni Generali SpA (trading as Generali Global Risk) [2010] Lloyd’s Rep IR 531, in which Leggatt LJ had arbitrated at first instance, and Hamblen LJ had given the appeal judgment, was wrongly decided and should be overruled. In that case a hotelier whose business had been interrupted by hurricane Katrina failed to recover under a business interruption clause because the effects of the hurricane on New Orleans generally would have deprived him of business in any event. The case had provided the foundation for insurers’ arguments on causation and on trends clauses; but was expressly found by the Supreme Court in the FCA case to have been wrongly decided by two of their number. Paragraphs 311 and 312 of the joint judgment of Hamblen and Leggatt LLJ is an object lesson in how to perform a volte face with grace and charm, and we at 1CL are storing up the explanation ‘I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion’ for future use.

It is estimated that, in addition to the particular policies chosen for the test case, some 700 types of policies across over 60 different insurers and 370,000 policyholders could potentially be affected by the outcome of the FCA litigation. More importantly, perhaps, the decision sends a message: the Supreme Court has favoured the arguments of the small and medium enterprises over those of the large insurers, in what is undeniably a decision driven by policy.

For example, paragraph 77:

“…the overriding question is how the words of the contract would be understood by a reasonable person. In the case of an insurance policy of the present kind, sold principally to SMEs, the person to whom the document should be taken to be addressed is not a pedantic lawyer who will subject the entire policy wording to a minute textual analysis (cf Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279, para 59). It is an ordinary policyholder who, on entering into the contract, is taken to have read through the policy conscientiously in order to understand what cover they were getting…”

And at paragraph 195:

“…it seems to us contrary to the commercial intent of the clause to treat uninsured cases of a notifiable disease occurring outside the territorial scope of the cover as depriving the policyholder of an indemnity in respect of interruption also caused by cases of disease which the policy is expressed to cover…”

Paragraph 316:

“The consequence therefore is that, on the insurers’ case, the cover apparently provided for business interruption caused by the effects of a national pandemic type of notifiable disease was in reality illusory, just when it might have been supposed to have been most needed by policyholders. That outcome seemed to me to be clearly contrary to the spirit and intent of the relevant provisions of the policies in issue. It therefore comes as no surprise to me that all the judges who have considered these issues have been unanimous in rejecting that outcome, albeit that this court has done so, rightly in my view, more comprehensively than did the court below.”

The decision is an interesting one, then, not just for insureds and insurers, but as an indicator as to the approach taken by the Supreme Court as to the allocation of risk in cases arising out of the pandemic; food for thought, perhaps, for those still embroiled in the Great Refund Saga?

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 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury.

 

…And Finally…

It was with no small amount of incredulity that we goggled at the headline, ‘Emirates ordered to pay passenger £1.2m after losing his luggage 12 years ago’. At first we thought the headline writer had misplaced the decimal point (come on, we’ve all done it in schedules and counterschedules), but no! The Nigerian businessman in question was travelling to China with the money in his hand luggage, with which he intended, according to The Independent, ‘to purchase goods’. He says that airline staff at Lagos airport insisted that he should hand over the bags, for which he received two luggage tags. He never saw them again, however, and a police investigation established that they had never left the airport. Embarrassingly for him, only $700,000 of the money belonged to him; $930,000 of it belonged to a friend, who had entrusted it to him to ‘buy goods for him’ in China. The Federal High Court in Lagos accepted his account and ordered the airline to compensate the passenger in full, rejecting Emirates’ argument that the Nigerian Aviation Handling Company is responsible for all baggage handling at the airport. It was also ordered to pay him £96,000 in compensation for his 12 year odyssey in attempting to find the missing bags. We at 1CL can only assume that both the applicable law and the judicial mindset in Nigeria is radically different from that pertaining in England and Wales; the thought of attempting to persuade, for example, His Honour Judge Gore to make a similar finding makes us come over all peculiar.

Closer to home, on 28th January the next in our 1CL webinar series will see Sarah Prager and Tom Yarrow join forces to defeat the forces of pessimism in their webinar on cross border litigation after Brexit.  Register here; we don’t want any Unexpected Guests.

 

[1] Section 37 of the Marine Liability Act 2001.

[2] In English law articles 3 and 7 of the Convention, found at Sch. 6 of the Merchant Shipping Act 1995.

[3] “(2) Articles 1 to 22 of the Athens Convention also apply in respect of

(a) the carriage by water, under a contract of carriage, of passengers or of passengers and their luggage from one place in Canada to the same or another place in Canada, either directly or by way of a place outside Canada…”

 

Written by or involving: Sarah Prager, Andrew Spencer, Susanna Bennett, Henk Soede

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