22
Feb
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Consumer Power Edition

Avid readers of the Civil Procedure Rules online will have been all of a doodah this week; we at 1CL sympathise. For this week the CPR were migrated from the legacy justice.gov.uk site, which is being phased out, to the uk.gov URL. In the process the Ministry of Justice appears to have decided that it would be much more fun if finding the rules and practice directions sought were made a task reminiscent of an archeological dig undertaken in Suffolk mud and rain in the shadow of World War II (yes, we gathered round the chambers telly last week to watch The Dig, and jolly good it was, too). Such was the outcry on social media that Justice Minister Lord David Wolfson has already bowed to calls for a review of the new site. It would probably be too much to hope that the rules will now be presented in precisely the same way as previously, but still, it’s a small victory for those who use the site.

Meanwhile the news was less cheery for a couple of large companies. First, France’s Directorate-General for Competition, Consumer Affairs and Fraud Control fined Google €1.1million for altering the rankings of 7,500 hotels displayed on its search engine, without making this clear. This, we venture to suggest, is part of a wider accommodation suppliers’ resistance movement against online platforms such as Booking.com, about which we reported last week and last Summer. It will be interesting to see what happens next in what commentators such as ourselves are calling Platform Payback. Then, Michael O’Leary’s latest bid for popularity within the industry resulted in two decisions of the General Court of the European Union (Case T-238/20 and Case T259/20), in which the Court decided that the Covid-induced loan guarantee scheme put in place by Sweden to support airlines holding a Swedish operating licence, and the deferral of the payment of taxes introduced by France to support airlines which hold a French licence, respectively, are consistent with EU law. It is, therefore, permissible for state governments to bail out their airlines in this way; but since the Irish government is unlikely to offer Ryanair a bailout any time soon, the airline argues that it suffers a disadvantage as a result, and has indicated that it will appeal the decisions (as well as bailouts in Germany, Spain, the Netherlands, Denmark and Portugal) to the Court of Justice of the European Union. To be fair, the British government has already provided Ryanair with an emergency loan worth €690million, which brings us nicely to further consideration of the Great Refund Saga…

 

The Great Refund Saga, continued…

It may come as no surprise to our readers that the Great Refund Saga has continued to rumble on during the latest lockdown. Recent reports have indicated that travellers who booked individual flights with airlines, due to take place during the pandemic, have had difficulty obtaining refunds. Consequently, the Competition and Markets Authority (“CMA”) has launched an investigation.

Airlines, such as Wizzair, have reportedly refused refunds when flights have operated as planned, on the basis that the Government’s guidance concerning non-essential travel was simply guidance. When considering travellers whose flights have operated during the current lockdown, it is pertinent to note that the current guidance documentation, as published on the .gov website, states that international travel for a holiday is “illegal”. In fact, somewhat surprisingly, the Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (“the Regulations”) do not specifically deem international holidays illegal. The Regulations do, however, prevent travellers from leaving their home without a reasonable excuse. As such, one could not travel to the airport for the purposes of going on holiday, or indeed to catch a flight to go on holiday, as leaving your home for that reason would not amount to a reasonable excuse permitted under the Regulations. In those circumstances, it would seem as though the contract between the traveller and the airline would likely be frustrated through illegality, as travellers would have to travel illegally to the airport in order to catch the flight, paving the way for a refund.

The position is different for those travellers who were due to undertake flights when the tiered systems took effect last year and where FCO guidance advised against travel to certain destinations. For those who were in Tier 4 areas at the time of their flight, the Regulations similarly prevented travellers from leaving their home without a reasonable excuse and the above situation would likely apply. For those in lower tier areas at the time of their flight, who were to be travelling to a destination the FCO advised travel against, there may be difficulties in arguing that the contract has been frustrated due to the FCO’s non-legally binding guidance. However, a contract could possibly be considered as frustrated where such FCO guidance would almost certainly have invalidated the traveller’s travel insurance. There is a further question as to whether Regulation (EC) No 261/2004 (“the Denied Boarding Regulations”) could be interpreted purposively in such a situation, as travellers could not have embarked upon the flights they booked in reliance upon that guidance. Under a purposive interpretation of the Denied Boarding Regulations, it could be argued that airlines, by failing to cancel flights to destinations where travel was advised against, frustrated the operation of the Denied Boarding Regulations and travellers should receive a refund.

It remains to be seen what conclusion the CMA will reach. One thing, however, is for certain: the Great Refund Saga is not over yet.

About the Author

Ranked by the Legal 500 2021 as a Rising Star, 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.

 

Vedanta Revisited: Supreme Court accepts jurisdiction in Nigerian oil spill claim

The Supreme Court handed down judgment in the case of Okpabi v Royal Dutch Shell [2021] UKSC 3 on 12th February.  On facts which are comparable to those in Lungowe v Vedanta [2019] UKSC 20 the Claimants’ jurisdictional appeal succeeded: there was a real issue to be tried between the Appellants (the Claimants) and the First Respondent (Royal Dutch Shell, R1) for the purposes of the “necessary and proper party” gateway at CPR PD 6B para 3.1(3).  This bar was therefore removed from a claim being brought within the jurisdiction against the Second Respondent (R2), a Nigerian registered company.

The Appellants were residents either of a Nigerian farming and fishing community or of a Nigerian riverine community.  They alleged that numerous oil spills, caused by R2’s negligence, had caused widespread environmental damage, including the contamination of local water sources.  R1 was a UK-domiciled company and the parent company of R2 and the multinational Shell group of companies.  It was claimed that R1 owed the Appellants a common law duty of care because (as pleaded) it exercised significant control over material aspects of R2’s operations, including by the promulgation and imposition of mandatory health, safety and environmental policies, standards and manuals.

The High Court and the Court of Appeal in lengthy judgments separately conducted a detailed analysis of the evidence and found there to be no arguable case that R1 owed the Appellants a common law duty of care.  The Court of Appeal considered over 2,000 pages of witness evidence.  Both tribunals (the Court of Appeal by a majority) made findings in respect of contested factual evidence in favour of the Respondents.

The Supreme Court’s decision in Vedanta was handed down after these decisions and, applying Vedanta, the Supreme Court allowed the Claimants’ appeal.  The Supreme Court in Vedanta had said the following in respect to the duty of care owed by a parent company to those affected by the activities of its subsidiaries at [49]:

“… the liability of parent companies in relation to the activities of their subsidiaries is not, of itself, a distinct category of liability in common law negligence. Direct or indirect ownership by one company of all or a majority of the shares of another company (which is the irreducible essence of a parent/subsidiary relationship) may enable the parent to take control of the management of the operations of the business or of land owned by the subsidiary, but it does not impose any duty upon the parent to do so, whether owed to the subsidiary or, a fortiori, to anyone else. Everything depends on the extent to which, and the way in which, the parent availed itself of the opportunity to take over, intervene in, control, supervise or advise the management of the relevant operations (including land use) of the subsidiary. All that the existence of a parent subsidiary relationship demonstrates is that the parent had such an opportunity.”

The Supreme Court found that in Okpabi the Court of Appeal and the High Court had each conducted a mini-trial of the evidence.  At the interlocutory stage the focus should, instead, be on the particulars of claim and whether – assuming the facts alleged were true – the cause of action had a real prospect of success (as in applications for summary judgment).  Applying Vedanta, and its fact-sensitive approach to whether a parent company owed a duty of care, the Claim against R1 had real prospects of success.  Furthermore there were reasonable grounds to believe that disclosure would materially add to the evidence relevant to the Claim’s prospects of success[1].

The judgment is a fitting reminder that at a jurisdictional challenge as to whether there is a “real issue” to be tried, the Court should focus on the particulars of claim and should not be drawn into conducting a mini-trial of the evidence.  The extent to which the High Court and Court of Appeal were willing to engage in a detailed analysis of disputed evidence – contrary to the proper approach[2] – is striking. As a result their judgments were much longer and more involved than they needed to be.

The Supreme Court’s statements in Vedanta as to when a duty of care will be owed by a parent company (see above) remain a useful starting point for future jurisdictional challenges under 6BPD3.1(3).  Whilst parties may categorise different routes to establishing a duty of care, there is no specific test, and no need to shoehorn cases into specific categories.  The principles of common law negligence govern.

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.

 

…And Finally

As we all eagerly await the decisions of the CJEU in Irish Ferries v National Transport Authority, due to be handed down on 4th March, and, X v Kuoni due on 18th March, let us take a moment to reflect on the successes and failures of last year. Yes! It’s the TATLA Caselaw Update, this year brought to you virtually by Matthew Chapman QC, Dr Russell Wilcox, and Ella Davis. As befits an event for friends old and new, it’s being beamed to your living rooms at 4.30pm on Friday as a fitting end to the working week and transition to the weekend.  We hope to see you there!

 

[1] The proper approach to future disclosure: Vedanta at [45], Okpabi at [128].

[2] Altimo Holdings v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 at [82].

 

Written by or involving: Dominique Smith, Susanna Bennett

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