05
Oct
20
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Cruel Summer Edition

It sometimes seems that we at 1CL do nothing but show off about our successes; but that’s because there’s so much to show off about. We hope readers will indulge us with one little crow over our latest Legal 500 rankings; we are, after all, one of the strongest travel sets out there, with some unrivalled senior juniors, and we know that regular readers will be as delighted as we are that Dominique Smith has been recognised by the directory as a Rising Star:

She is very organised, responds fast, does not hesitate to provide advice, and her work is always outstanding. She is very personable, very approachable, and witnesses and judges like her. Consequently she gets some excellent results in otherwise unpromising cases.

We couldn’t have put it better ourselves.

We thought we’d plumbed the depths of 80s popular culture last week, with the Duran Duran edition; but Leigh Day have requested that we head further into the abyss this week. Our readers’ wish is our command.

 

I Want You Back in your seat, with the seat tray up and your seatbelt on, ready for landing

Pursuant to Article 21(1) of the Montreal Convention 1999, in claims for damages up to 128,821 Special Drawing Rights (approximately £140,000), if death or bodily injury is caused by an accident within the meaning of Article 17, then apart from the defence of complete or partial exoneration due to the fault of the passenger, the carrier is prevented from excluding or limiting its liability.  It is not a defence even if the damage was due exclusively to the fault of a third party, even in extremis, for example a terrorist attack.

However, pursuant to Article 21(2), for any damages over 128,821 SDR the carrier may have a complete defence if it is able to prove that the damage was either (a) not due to the negligence or other wrongful act or omission of the carrier or its servants or agents, or (b) the damage was solely due to the negligence or wrongful act or omission of a third party. To be clear: the first 128,821 SDR of each claim are still protected, but any compensation above that figure is subject to the defence.

If the accident really isn’t the carrier’s fault, is there any way for it to recoup the first 128,821 SDR?  The answer is that it can seek a contribution or indemnity from the real tortfeasor. This is precisely what is happening in proceedings currently underway in the United States.

Felicia Nelson, a resident of North Carolina, has commenced proceedings in United States District Court in Connecticut against Aer Lingus claiming that she was injured when another passenger, Joseph Lorenzo, opened an overhead baggage compartment during a flight to Dublin. The contents of a duty-free bag containing “bottles of liquor” fell onto her head causing a range of alleged injuries including post concussion syndrome and Post Traumatic Stress Disorder.

Although Aer Lingus is denying any liability to Ms Nelson, it has also issued a claim for contribution or indemnity against Mr Lorenzo for “negligently, recklessly, or intentionally” removing his baggage with such force that it fell onto Ms Nelson.

The unfortunate Mr Lorenzo, who was probably looking forward to enjoying a couple of bottles on his journey home, has yet to enter a defence to the claim.

About the Author

Called to the Bar in 2004 respectively, Jack Harding has been listed in the legal directories as a tier 1 recommended practitioner in travel and consumer law for many years. Together with his colleagues at 1 Chancery Lane, Matthew Chapman QC and Sarah Prager, he co-writes the leading legal textbook in the area, and has been involved in many of the leading cases in the field in the last decade.

 

It Ain’t What You Do, it’s whether you do it in accordance with your international treaty obligations

It’s been a busy few weeks in the world of Brexit.

First, we had the Internal Market Bill passing its Third Reading in the House of Commons (albeit, in another moment for political historians, occurring with former PM Theresa May abstaining in defiance of a three-line Conservative whip). Clauses 42 and 43 of the Bill as drafted give Ministers certain powers to override provisions of the Protocol on Northern Ireland in the Withdrawal Agreement – the two key areas being on state aid and exit checks running NI-GB. After a somewhat confused period where the Secretary of State for Northern Ireland appeared to accept that the Bill (if it became law) would ipso facto breach the UK’s international obligations (i.e. before any regulations were even made under the enabling powers), the Government appeared to settle its position on breaches of the Withdrawal Agreement being only made possible by the enacting of the Bill and not arising on day one of its applicability.

The EU has taken a different view. Ursula von der Leyen this week announced the commencement of legal proceedings being brought by the EU against the UK. The EU alleges breaches not of the Northern Ireland Protocol (yet), but of Articles 4 and 5 of the Withdrawal Agreement. Article 4 says that the provisions of the Withdrawal Agreement and the bits of EU law which apply in the UK by virtue of the Withdrawal Agreement should have the same legal effects as they have in the EU: in a nutshell – supremacy and direct effect. The argument is that by even legislating for the possibility of Ministers disapplying provisions of the Treaty or EU law made effective by the Treaty, the UK has undermined these fundamental principles of EU law. As a back up, Article 5 (which didn’t make the first draft of the Agreement back in February 2018, presumably on the grounds that it is already a requirement under the Vienna Convention) directs that both parties should perform their obligations under the agreement in good faith.

Interestingly enough it is precisely this Article which the UK Government has used to justify the actions it has taken in drafting the Internal Market Bill. The UK is concerned that the way in which the EU has suggested it will interpret Article 10 of the Northern Ireland Protocol is itself in bad faith and in breach of Article 5. Article 10 of the Protocol is disguisingly drafted such that the EU rules on state aid apply (until another solution is found) to Northern Ireland insofar as a subsidy might affect trade between NI and the EU. The problem with that is, in theory, it could stretch the reach of EU state aid rules to almost anywhere in the UK – for instance if the UK Government elected to subsidise a company mainly operating in GB but with a branch in Northern Ireland, that subsidy could find itself falling under the EU regime.

Wherever the infringement proceedings taken by the EU end, the important present consequence is the potential embitterment of discussions on the future relationship. It should be remembered that Article 184 of the Withdrawal Agreement is a second good faith Article, added to the draft Treaty in the latter part of 2018, which requires both parties to be on best behaviour in negotiating the future relationship. It was critical to UK Government policy to tie the two Agreements together as closely as possible. Infringement proceedings for breaches of Phase 1 against the UK, are therefore highly relevant to Phase 2 (effectively on the UK’s own request).

On Phase 2, round nine of the future relationship negotiations wrapped up this week with some progress, but no sign of a ‘tunnel’ leading into the next EU Council at the middle of this month. State aid and fisheries, as ever, are clear areas of contention.

From a selfish point of view, thinking of the legal services market, all this means two things: first, any deal (if a deal is done) is likely to be fairly slender, particularly on services, which will mean barriers to trade both for lawyers and financial service providers critical to the sector (i.e. insurance companies); second, the UK’s accession to Lugano which we have written about previously looks increasingly unlikely, at least in the short term. It is inevitable now that there will at the very least be a short period of time at the beginning of the New Year where the UK will be firmly out of the Brussels/Lugano regime. This is, partly, because there is a requirement to give three months’ notice of accession, which deadline passed without incident a week ago. Lord Keen, before resigning two weeks ago, made a final appearance before the Lords Select Committee looking at civil justice matters, and repeated the Government’s line that it would be in the interests of the EU to have the UK in the Lugano Convention, but if I dare to read his tone, he did not appear at all confident of that happening. In the coming weeks and months we will be keeping readers informed of the likely outcome of the Brexit negotiations on jurisdiction and applicable law, initially by reference to some of the important consequences of the inevitable lack of seamless accession to the Lugano Convention at the conclusion of the transition period on 31st December of this year. Watch this space.

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.

 

Shy Boy Michael O’Leary loses his challenge to the Irish government’s travel advice

In a creative attempt to try to limit the damage the Covid-19 pandemic has done to the aviation industry, Ryanair brought a challenge to the travel restriction measures introduced by the Irish Government to deal with the pandemic in late July.

The measures in question included advice not to travel outside of Ireland save for essential purposes and a requirement for those returning from countries which were not on the designated ‘green list’ to restrict their movements and self-isolate for 14 days. Ryanair also challenged a statutory requirement to fill in a passenger locator form, which is a requirement regardless of whether a passenger is returning from a ‘green list’ country or not.

The airline claimed that the restrictions were unlawful in that they went well beyond mere travel advice and amounted to imposing restrictions on international travel. Part of the relief sought by Ryanair was that the measures be set aside. The airline went as far as to say that the measures were outrageous, confusing and a detriment to both the public and its business.

The Irish state argued that the measures were merely advisory in nature and not binding. Further, the state challenged Ryanair’s standing to bring the challenge, arguing that the courts could not intervene with the advice and that the proceedings were pointless.

The judge, Mr Justice Garrett Simons, confirmed that: “Ryanair’s principal complaint is that, as a matter of domestic constitutional law, the Government in publishing the impugned travel advice exceeded its executive powers and trespassed upon the legislative power. These arguments have been rejected”.

“The advice to avoid non-essential travel and to restrict movements on entry to the State is just that: advice”.

“The Government merely requests that persons entering the State from a country not on the ‘green list’ restrict their movements for 14 days.”

The publication of the travel and public health advice was held to be consistent with EU law and in particular did not breach the right to freedom of movement under the Treaty on the Functioning of the European Union.

The court emphasised that there had been no challenge to the underlying merits of the travel advice, and the court’s judgment made no comment at all on the wisdom or otherwise of the advice.

Whilst accepting that Ryanair had raised arguable issues of law, the judge dismissed the substantive application in its entirety.

This decision will be of interest to practitioners representing those consumers, airlines and tour operators affected by British FCO travel advice, namely almost of them involved in the provision of holidays this year. First, nobody argued that the Irish advice was legally binding, and secondly, a state has a right to issue such advice, notwithstanding that it might constitute an interference with an individual’s right of free movement. What effect, if any, it might have on the right to a refund is another matter altogether.

About the Author

Chris Pask was called in 2013. He undertakes work arising out of contractual disputes, including cases involving sale of goods and supply of services, and in particular claims raising issues of fundamental dishonesty. Chris accepts instructions by way of Direct Public Access.

 

I Heard A Rumour that Norway’s planning to nationalise Norwegian Air.

News broke last week that Norwegian Air have entered into talks with the Norwegian Government over a potential nationalisation. With 1CL’s recent webinar on the Montreal Convention fresh in our minds, the prospect of a major state-owned Community Air Carrier provides a perfect opportunity to reflect on the obiter comments of Lady Hale in Stott v Thomas Cook Tour Operators Ltd [2014] UKSC 15.

By way of background, the claimant in Stott had been subject to humiliating and degrading treatment by reason of his disability during a return flight to the UK from Zante. The claimant subsequently brought a claim against the Defendant airline under the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (“the UK Disability Regulations”) and sought damages under Regulation 9 for the mental distress caused by the degrading treatment. Lord Toulson, giving the lead judgment, found (somewhat reluctantly) that the claim arose during a contract of carriage and therefore fell within the exclusive jurisdiction of the Montreal Convention pursuant to Article 29. Unfortunately for the claimant, that also meant his claim failed – the mental distress suffered did not qualify as bodily injury for the purposes of Article 17: Morris v KLM Royal Dutch Airlines [2002] UKHL 7. Accordingly, the Claimant was left without recourse to a substantive remedy.

Although the Court were in agreement that this was plainly an unfair outcome, it was equally clear that this was a straightforward application of Article 29 and a logical extension of the earlier House of Lords decision in Sidhu v British Airways [1997] 1 All ER 193.

At [67] to [70], however, Lady Hale went further and launched into a hypothetical discussion about the legal issues that Article 29 might create in a scenario where a state-owned airline breached a passenger’s fundamental rights during the course of carriage. At [67]:

“The apparently adamant exclusion, in article 29 of the Montreal Convention , of any liability for damages other than that specifically provided for in the Convention, while perhaps unsurprising in a trade treaty, is more surprising when the fundamental rights of individuals are involved. Some treaties make express exception for anything which conflicts with the fundamental rights protected within a member state, but the Montreal Convention does not. Whatever may be the case for private carriers, can it really be the case that a State airline is absolved from any liability in damages for violating the fundamental human rights of the passengers it carries?” (my emphasis).

The question posed by Lady Hale raises some important issues.

Let us assume that the UK government takes similar steps to those being considered by the Norwegian government and nationalises a major airline. International law imposes positive obligations upon states to protect individuals against violations of their fundamental rights. There are, for example, certain ‘peremptory norms’ of international law that are binding on all states. Some protection of these norms is contained at Article 53 of the Vienna Convention on the Law of Treaties: “a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law”.

One peremptory norm of international law is the right not to be discriminated against: see Lord Steyn at para 46 in R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Comr for Refugees Intervening) [2004] UKHL 55. Another peremptory norm is the prohibition from torture. Though perhaps not akin to torture, Lady Hale considered “that what happened to Mr Stott on board the plane amounted to inhuman or degrading treatment within the meaning of Article 3 of the European Convention on Human Rights”: [69]. If, Lady Hale continued, the prohibition of cruel, inhuman and degrading treatment was a peremptory norm (which she considered arguable), the fact the Montreal Convention could apply (as in Stott) so as to insulate a State Airline from liability for such treatment would clearly bring it into conflict with that norm. Accordingly, it was possible (on Lady Hale’ analysis) that Article 29 of the Montreal Convention could be rendered void by application of Article 53 of the Vienna Convention.

In her final remarks at [70], Lady Hale opened up the possibility of future litigation on this issue:

None of this was ventilated before us, no doubt for the good reason that Thomas Cook is not a State airline. The extent to which international law imposes positive obligations upon States to protect individuals against violations of their fundamental rights by non-state actors is controversial. There may or may not be something in the issues I have raised. But the question of whether there are indeed any limits to the apparently adamant exclusion in article 29 of the Montreal Convention may well require ventilation in another case or another place. At the very least, as Lord Toulson says, the unfairness of the present position ought to be addressed by the parties to the Convention. Small comfort though it may be to them, both Mr and Mrs Stott, with the support not only of the Equality and Human Rights Commission but also of the responsible department of the United Kingdom government, have done us all a service by exposing a grave injustice to which the international community should now be turning its attention.

With major airlines still struggling to make ends meet, and the increasing possibility that governments will step in and nationalise such airlines, it may be that the litigation envisaged by Lady Hale is right on our doorstep.

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 is eager to build on his experience in these areas.

More, More, More costs please, we’ve gone over budget

The latest amendments to the Civil Procedure Rules, which came into force on 1st October, include an amendment to the rules on costs budgeting. Under the rule previously in force, parties could agree amendments to costs budgets; now, under Part 3.15A, any amendments must be approved by the courts.

The new rule reads:

(1) A party (“the revising party”) must revise its budgeted costs upwards or downwards if significant developments in the litigation warrant such revisions.

(2) Any budgets revised in accordance with paragraph (1) must be submitted promptly by the revising party to the other parties for agreement, and subsequently to the court, in accordance with paragraphs (3) to (5).

(3) The revising party must—

(a) serve particulars of the variation proposed on every other party, using the form prescribed by Practice Direction 3E;

(b) confine the particulars to the additional costs occasioned by the significant development; and

(c) certify, in the form prescribed by Practice Direction 3E, that the additional costs are not included in any previous budgeted costs or variation.

(4) The revising party must submit the particulars of variation promptly to the court, together with the last approved or agreed budget, and with an explanation of the points of difference if they have not been agreed.

(5) The court may approve, vary or disallow the proposed variations, having regard to any significant developments which have occurred since the date when the previous budget was approved or agreed, or may list a further costs management hearing.

(6) Where the court makes an order for variation, it may vary the budget for costs related to that variation which have been incurred prior to the order for variation but after the costs management order.

The important point to note here is that any application must be made promptly, meaning that litigators who previously worked with one eye on their costs budgets now need to keep them under constant review; there is now no excuse for going over budget without notifying the court, and it’s not enough for the other party to the litigation to exercise sensible cooperation. It remains to be seen whether this latest effort to keep costs under strict judicial control will in fact lead to an increase in applications, costs, and an exacerbation of the backlog of hearings already stretching the court system to breaking point.

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 will come as no surprise to regular readers that we at 1CL are enthusiastic users of TripAdvisor, embracing not so much the ability to read others’ reviews of our intended destinations, but the possibility to leave reviews ourselves. Indeed, we were halfway through a firm but fair review of the catering facilities at Northampton County Court when we read of a man who is facing a custodial sentence for leaving unfavourable reviews of a Thai hotel. The American, who works in Thailand, appears to have become involved in something of a set-to with hotel staff when he attempted to take his own bottle of wine to the restaurant, but refused to pay a corkage fee. The manager intervened and waived the fee, but the gentleman remained dissatisfied, and posted a number of negative reviews about the hotel on various websites. The hotel asked him to stop going around describing it in unflattering terms, but he persisted in his one-man crusade to end the tyranny of corkage. This turned out to be an error. It seems that Thailand has some pretty draconian defamation laws, and the hotel invoked them. We can only imagine that the tourist spent his two nights in a Thai prison awaiting release on bail bitterly regretting his hasty No Corkage policy. But that’s just the beginning: if he’s found guilty of defaming the hotel, he could be sentenced to up to two years in prison, and there is no automatic defence of truth in Thai defamation. So the over-critical tourist now finds himself having to prove not only that what he said was true, but that there was a public interest in his having said it, repeatedly and on several platforms, despite being asked not to. We suspect he’s feeling Every Shade of Blue.

Written by or involving: Sarah Prager, Jack Harding, Christopher Pask, Thomas Yarrow, Henk Soede

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