06
Apr
20
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Continuing Impact of Covid-19 on the Travel Industry

It’s been another busy week in travel law; we’ve seen the first cases arising out of the Covid-19 holiday cancellations, and amendments to the CPR, both pre-planned and reactive. The team at 1 Chancery Lane summarise some of the most noteworthy developments.

The Planned Amendments to the CPR

From 6th April 2020 a number of amendments to CPR Parts 22 and 32, covering statements of truth and witness statements respectively, will come into force. The key change is that the statement of truth now makes explicit reference to the possibility of contempt proceedings.

The wording of the new statement of truth for statements of case and application notices will be as follows:

“[I believe] [The party believes] that the facts stated in this [name of document] are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.” 

For witness statements, the statement of truth will read:

“I believe that the facts stated in this witness statement are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

There are a number of points to note:

  • On a practical level: all witness statements, application notices and statements of case (for both claimants and defendants) signed from 6th April 2020 will need to include the additional wording. Bear this in mind, and if you use templates then be sure to amend them.
  • The new wording doesn’t go so far as to include a warning that those convicted of contempt may be sent to prison. For representatives: take the extra time to explain the meaning of the statement to your client/witness, and to explain that they could be sent to prison. Arguably it falls within your professional duty.
  • Hopefully this will encourage litigants to take the sanctity of their evidence more seriously, if they are forced to confront the possible consequences of writing untruths. On a practical level this may not happen; the type of slapdash or outright crooked person who would sign a document containing blatant inaccuracies is unlikely going to be deterred by a few extra words at the end of a sentence they likely won’t read anyway. Conversely it may deter otherwise honest people from ‘slipping in’ a couple of slight exaggerations; it will focus the mind of witnesses to play with a completely straight bat.
  • Perhaps most importantly, judges may feel equipped to take a more robust stance on errors in witness statements and suchlike. The excuse judges often hear from witnesses, along the lines of “oh I’m sorry I didn’t realise, I didn’t read it very carefully”, won’t wash. This could lead to more findings of fundamental dishonesty.

Changes have also been made to the formal requirements for foreign language witness statements. The statement must be drafted, and must contain a statement of truth, in the witness’s native language, and must then be translated into English. The party wishing to rely on the witness statement must file both the foreign language version and the English version with the court, and the translator must sign the original statement and certify that the translation is accurate.

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.

Sanctions and Extensions of Time – some Welcome Relief

Last week we reported on the voluntary extension to the Personal Injury Pre-Action Protocol entered into by the Association of British Insurers and a number of high profile solicitors representing Claimants.

This week, on 2nd April, new Practice Direction 51ZA came into force, which provides some very useful practical help for litigators at this difficult time. With current restrictions, procedural steps are likely to take longer: it is inevitably taking longer to get instructions, obtain disclosure, and arrange expert appointments when most people are practicing social distancing, and working from home without necessarily having ready access to documents. At the same time, getting the court to approve extensions is likely to be a slower process.  So it is very welcome that the new Practice Direction extends the maximum extension that parties can agree between themselves from 28 days to 56 days.

As a result of the current situation, some court orders are unfortunately going to be breached, meaning relief from sanctions applications are required. The Practice Direction instructs judges, “in so far as compatible with the proper administration of justice” to “take into account the impact of the Covid-19 pandemic” when hearing such applications – as well as applications for extensions and adjournments. Whilst this should not be interpreted as a “get out jail free card” where deadlines have been missed, it does provide a very strong indication that the courts will look sympathetically on parties who find themselves in difficulties because of the current situation.

In particular, in the light of the current situation those representing foreign entities such as accommodation or other suppliers of package holiday components will have good grounds for requesting, or applying for, an extension of time to provide disclosure or witness statements. In some cases the entire country in which the supplier is located is in lockdown; in many others all touristic establishments have been closed. It would be entirely unreasonable to expect litigation requiring the input of these establishments to continue as usual, and it is thought that legal representatives would have an overwhelmingly sympathetic hearing if they were to have to apply for an extension as a result of Covid-19 related delays necessitated by measures taken to contain the crisis in foreign countries (or indeed in this country).

The new Practice Direction expressly states that it will cease to have effect on 30th October 2020.

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.

Canadian Airlines Face Class Action

Canadian airlines Air Canada, WestJet, Swoop, Air Transat and Sunwing (which do you think has the best name? For me the clear winner is Swoop) are facing a class-action lawsuit from travellers whose flights were cancelled amid the coronavirus chaos.

The Canadian government advised in mid-March against all non-essential travel, following which airline carriers significantly reduced their flight schedules. The litigants allege that instead of the full refund owed they were offered only the option to rebook at a later date. They say this is not good enough, as they may need the money now, or may not wish to travel in the future.

Air Transat has suggested it was not obliged to offer a full refund as per the ordinary operation of the contracts, as the pandemic constitutes a “force majeure” freeing it from this obligation. The alternative form of refund, they say, provides an acceptable alternative.

Two things are of particular interest:

1) The action itself. It has come about sooner than I would have expected, indeed perhaps a touch prematurely given that the underlying factual context (i.e. the pandemic) is still developing and changing. I also wonder whether other consumer industries in which suppliers have been forced to issue mass cancellations will see similar class actions.

2) Force majeure. There is a lot of legal chatter currently – in the travel context and elsewhere – about whether such clauses will bite in the way prospective defendants hope. Not being a Canadian lawyer I am unable to comment on the prospect of this defence succeeding, but it is nonetheless a commonwealth jurisdiction and as such I’m intrigued to observe. No doubt large companies, insurers and suchlike will keep an eye on the case, and others like it, with a view to employing the same argument in future contract claims.

In this jurisdiction, of course, the right to a refund is governed by the Denied Boarding Regulations (in the case of flights purchased from an airline) and the Package Travel Regulations (in the case of packages).

Some time ago the Italian government enacted legislation to amend the right to a refund under the Package Travel Regulations; on 3rd April the German government proposed a similar amendment. As more and more European Member States seek to amend their domestic Regulations, ABTA has criticised the UK government for failing to act fast enough to avoid what it fears may be ‘catastrophic damage to the UK travel industry and widespread consumer detriment’. We reported on 23rd March that the government had announced its intention to act, but it has yet to do so, notwithstanding the mounting criticism. We will of course let you know as soon as the government’s intentions become clear; but what is certain is that ancillary questions will arise as to how exactly the Member States of the EU are amending the domestic legislation they had an obligation to enact, and whether they are able to do so lawfully.

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.

Class Action Intimated against Austrian Ski Resort

In another early class action, a claim has been intimated against the Tyrolean ski resort of Ischgl for knowingly exposing skiers to the virus. The claim, which has been brought by a German consumer affairs watchdog, the Austrian Consumer Protection Association, rests on the allegation that the local authorities kept the resort open for business despite knowing that there was an outbreak of Covid-19 occurring; and that they covered up the extent of it for fear of putting tourists off visiting the region. At time of writing, over 400 Claimants had signed up the action, the majority of them German; and it is thought that many more travellers, including British skiers, were exposed to the virus as a result of the local authorities’ tardy response to the situation.

In late February an employee of a bar in Ischgl popular with skiers was found to have the virus; but the bar still remained open to guests, before finally closing for business a fortnight later, when the entire resort was closed down. The original member of staff is now thought to have been a ‘super spreader’ responsible for infecting guests from all over Europe, and in particular Germany, Austria, Denmark, Norway, Sweden, Iceland, and the UK.

Austrian prosecutors are investigating whether there is a case against the local authorities responsible for the bar remaining open for reckless endangerment of people through infectious disease; the Tyrolean authorities deny acting recklessly and say they took very quick, ‘very radical’ action in response to the virus.

The action is an indication of where claims arising out of the outbreak are likely to arise. No one can reasonably blame a hotelier or other supplier, or therefore a package or cruise operator, for the occurrence of an outbreak of illness; where the supplier knows or has reasonable grounds to believe that an outbreak is occurring, or is likely to occur, however, the position is very different. We have seen in norovirus claims that an hotelier or cruise operator unlucky enough to be visited by Patient Zero, or a Super Spreader, is not generally liable for the resulting outbreak, so long as reasonable measures are taken to contain the spread of disease; but a supplier which knowingly allows guests to come into contact with an infected person is likely to have difficulties in defending claims of this nature. One thing is certain: although the Tyrolean claim may be the first of its kind, it won’t be the last (a number of cruise lines are facing litigation, largely from our American brethren, and a group of Floridians have, apparently, sued the People’s Republic of China for failing to report and contain the virus more quickly). Interesting times lie ahead.

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.

Written by or involving: Sarah Prager, Andrew Spencer, Richard Collier

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