08
Mar
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Apocalypse Edition

After last week’s warmer, sunnier weather, the team were dismayed to be confronted, this week, by freezing temperatures. No sooner had we clocked this, than Cockerill J was asked to turn her mind to plague-related matters, and then, in Chelfat v Corbett [2021] 2 WLUK 748, Robinson J struck out a claim against a GP sued as an individual, but served on her place of business, rather than her place of residence. Then the Court of Appeal, in Manek v IIFL Wealth (UK) Limited [2021] WLUK, reversed another decision on jurisdiction, this time relating to the applicability of the tort jurisdictional gateway to representations made within the jurisdiction but being repeated and having consequences outside it, in a slightly grumpy judgment which starts with the words ‘this is ANOTHER appeal concerned with the issue of jurisdiction ’ (my emphasis). On the other hand, the nation’s children have now returned to school, taking with them, it is to be hoped, the burden of parental guilt over the difficulty of simultaneously working from home and supervising remote learning. Of course, this will be replaced by the guilt associated with failing to ensure that school uniforms and sports kits still fit, and geometry sets haven’t been lost, but let’s award ourselves a week’s grace to reflect on these small, faltering steps back to some kind of normality.

 

Plague: Rockliffe Hall Ltd v Travelers Insurance Co Ltd [2021] EWHC 412 (Comm)

Avid readers will no doubt remember that Sarah Prager and I recently gave a webinar to the Forum of Insurance Lawyers on the high-profile “FCA test case” then making its way through the courts. The index case is another ‘business interruption’ Covid-19 case, and raised a question which the deciding judge Mrs Justice Cockerill described aptly as “very much of this moment in time”. Somewhat unusually there was also fairly extensive consideration of the bubonic plague, which makes for fun reading. At least as much fun as one can have considering the construction of insurance policies.

The Claimant, which runs a large golf course and hotel, had a business interruption policy with the Defendant upon which it sought to claim owing to the devastation of its business caused by the Covid-19 pandemic. The policy included interruption resulting from outbreaks of “infectious disease” albeit this term was expressly defined within the policy as meaning the 34 diseases on a closed list. Covid-19 was not on that list, though “plague” was. The Defendant applied for a strike out of the claim, or alternatively summary judgment.

In very brief summary, Mrs Justice Cockerill – in a laudably forthright, clear and succinct judgment – granted the Defendant’s application. The Claimant’s main argument was that Covid-19 was covered by the word plague. This word has more than one meaning, one of which is bubonic plague, however the Oxford English Dictionary defines it in a general way as “ Any infectious disease which spreads rapidly and has a high mortality rate; an epidemic of such a disease”. If the Defendant wished it to be limited to bubonic plague, so the Claimant submitted, it should have said so. There were other diseases on the list such as food poisoning which also had a very wide range of alternative clauses, lending to the conclusion that the purpose of the clause as a whole was to provide a non-exhaustive list.

Cockerill J disagreed, dismissing the Claimant’s argument as “a clever lawyer’s construct” and “an approach which only comes about through minute, blinkered and reductive components of the clause; an approach repeatedly deprecated in the authorities”. It was completely contrary to the way a reasonable non-lawyer would construe the contract. She reasoned that the word must mean one disease, and a general definition in the way the Claimant contended would render nearly all of the diseases listed in the policy redundant. Indeed the notion that this list was non-exhaustive flatly contradicted the introductory wording in the actual section of the policy which stated “Infectious Disease means:….”. A non-exhaustive list would use wording such as “including” or “for example”. In conclusion, the word plague referred only to bubonic plague. There were other weaker arguments advanced by the Claimant which did not trouble the Judge greatly.

This is another interesting case in the business interruption saga, and it is interesting to read in the opening paragraphs of the judgment that there is an operational Commercial Court “Covid-19 business interruption list”. No doubt we shall hear more on this theme.

About the Author

One of the more junior members of the team, Richard Collier was called to the Bar in 2016. Before that, he had worked as a Judicial Assistant to Lord Justice Jackson in the Court of Appeal. He is now instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims.

 

(Trade) War: Mode 4 Service Supply

While difficulties continue with the implementation of border checks in the Irish sea, which has led to the EU postponing formal ratification of the EU-UK Trade and Cooperation Agreement (“TCA”), much of the media and political discourse is focused on trade in goods between the UK and the EU. Usual suspects seem keen to start trade wars, with it even being proposed that the UK should say ‘Eau no!’ to French bottled water, in retaliation for certain barriers to trade UK shellfish exporters are now facing.

Goods are at the forefront of everyone’s mind, presumably partly because frictions are more obvious and lamentable (everyone enjoys a discussion about queuing lorries) and partly because of the pandemic – those of us in service sectors are not doing much in the way of international travel anyway. There has, however, been some focus on problems in services trade in recent weeks. The Bank of England governor Andrew Bailey, for instance, two weeks ago decried attempts apparently being made by the EU to prise the Euro derivative trading market from London. His words, for obvious reasons, garnered public attention. And musicians seem to have done a good job of raising their concerns with Parliament with over 280,000 signing a petition for visa-free work permits for touring professionals and artists, and the matter being debated in Parliament on 8th February.

But there has otherwise perhaps been a paucity of discussion about the difficulties faced in other sectors in cross-border service provision. I could, of course, bang the drum for more attention for lachrymose lawyers, who have been stripped of their rights to practise in EEA jurisdictions, to appear in front of the Court of Justice of the European Union, and for their (dare I say) hard-earned qualifications to be recognised, but this week ABTA has raised significant concerns about the effects the mobility framework agreement (or really lack thereof) in the TCA is impacting (or going to impact) on the travel industry.

There are (or will be when the world is normal again) a large number of British tour-guides, ski-coaches, yacht crew, tour operator representatives etc. who typically base themselves in various EU jurisdictions during ‘high season’ and give that uniquely homely flavour to holidays that Brits-on-tour seem to enjoy. This is what is known in international trade lingo as ‘Mode 4’ service supply, where there is a presence of persons from one State providing a service in the territory of another.

The current agreement on mobility in the TCA only contains very limited provisions for Mode 4 and business visits between the UK and the EU. The catchily named Article ‘SERVIN.4.3’ provides that the UK and EU states will each allow entry and temporary stay of short-term business visitors of the other party for the purposes of carrying out specified activities, provided that they are not being paid in the host state, they are not supplying their goods/services to the general public, and they do not stay for more than 90 days in any six month period. The specified activities are listed in Annex SERVIN-3. Permitted business activity does include that carried out by ‘tourism personnel’, but it is expressly limited to “tour and travel agents, tour guides or tour operators attending or participating in conventions or accompanying a tour that has begun in the territory of the Party of which the Short-term business visitor is a natural person. This narrow definition, along with the 90-day-in-six-months limitation, is enough to knock out large swathes of Brits looking to work seasons in chalets, hotels, flotillas etc. in the EU.

But to add insult to injury, this already very limited base agreement does not even apply to certain EU states. In Finland, for instance, the tour rep would have to be an employee of an EU company; in Sweden, a work permit is required; but worse, Poland, Cyprus and Spain are all listed in the Schedule as ‘unbound’, meaning they have declined to provide any market access at all for UK Mode 4 tourism service providers. A formal work permit is therefore required to carry out these activities, and a British worker would have to apply for such in accordance with the relevant Polish, Cypriot or Spanish national immigration rules.

I am not familiar with the national systems of other EU states (what? why not? – ed.), but if the UK immigration application process is anything to go by, then they will all involve large swathes of paperwork, non-negligible fees (both to lawyers and to national authorities), and no doubt long delays in processing, enough to make any operator think twice about employing a Brit concierge on the Alpine slopes. For an industry which is already on its knees following the Covid-19 pandemic, these costs and bureaucratic hurdles may prove too much for some, who may fold, move or pivot to a new model of providing their services using fewer Brits.

ABTA is apparently urging the Government to open talks with EU on a youth mobility scheme similar to that which the UK shares with countries like Canada and Australia, which offers a simpler route to two-year work visas to people aged 18-30. This seems like a sensible solution, but it will clearly not be in place for the 2021 holiday seasons; certainly while there continues to be festering bad blood over the implementation of the Irish Protocol.

About the Author

Tom Yarrow was called in 2018. Before joining chambers Tom was a civil servant working in various government departments, including as a policy advisor on the UK-EU Withdrawal Agreement at the Department for Exiting the European Union. During pupillage he worked with the Government Legal Department, practising in public law in the fields of public international law, justice and security, human rights and immigration. He has regularly appeared in judicial review proceedings for the Secretary of State for the Home Department, and as a member of the Attorney General’s ‘junior junior’ scheme, he is able to take instructions directly from government clients. He now practises in all of chambers’ practice areas and is an enthusiastic and valued member of the travel team.

 

…And Finally…

We at 1CL are well known for our adventurous spirit, but even we aren’t sure about the latest venture in hospitality. For this week it was announced that the world’s first space hotel is scheduled to open in 2027. The glossy mockups of cheery guests trampolining with gay abandon and gazing thoughtfully out upon the Earth may lure some astrophiles, but we’re concerned about the potential for guests to suffer from gastric illness, which really doesn’t bear thinking about in zero gravity, or having a run-in with a suddenly sentient psychotic life support system. We can only advise would-be astroguests to be sure to purchase a package space holiday rather than individual holiday components; and to make sure your travel insurance covers off-world adventures.

Written by or involving: Richard Collier, Thomas Yarrow

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