The Weekly Roundup: the De La Soul Edition

Articles | Mon 7th Feb, 2022

This week the team has detected the early signs of a return to normality following the lockdowns that dogged 2020 and 2021. First, Eady J rejected a Defendant’s application for its Kenyan witness to give evidence by videolink in a package travel case; then the German courts took an unsympathetic view of a party’s late arrival to catch her flight; and finally, the Court of Appeal gave judgment against Ryanair in another denied boarding claim.

In the German case, the Claimant arrived at the boarding gate some 18 minutes after the stated boarding time, and was denied boarding. She brought a claim under Regulation (EC) No.261/2004 (the Denied Boarding Regulations), but failed in the Munich Local Court, which held that although the aircraft was still at the gate, and she could in fact have boarded, and although in practice it is not uncommon for airlines to wait for passengers, to rule that a passenger has a right to board in these circumstances would impose too onerous and disruptive a duty upon them. Nor did the airline owe any duty to provide a minimum boarding time. As a result of these determinations the court had to Say No Go to the claim.

Returning to the jurisdiction of England and Wales, the Court of Appeal in CAA v Ryanair DAC [2022] 2 WLUK 8 confirmed that HHJ Gerald had been correct to hold that flight cancellations as a result of an airline’s employees taking strike action in relation to their employment conditions did not constitute extraordinary circumstances under the Denied Boarding Regulations so as to exempt the airline from paying compensation to passengers, whether or not the aims of the strikers were reasonable or achievable and notwithstanding the involvement of trade unions. The Stakes Is High, however, and Ryanair has announced its intention to appeal the ruling. Given that the CAA has cited Ryanair’s failure to compensate these passengers and the fact that this litigation has been running for some years as evidence for the need for it to have greater powers, as well as the domestic and European caselaw, Me Myself and I wonder whether this is such a great tactical decision on the part of the airline. Still, It’s Like That.

Back to Life: Back to Normality? (However Do You Want Me to Give Evidence)

Many trials have involved some, if not all, witnesses giving evidence via video link during the pandemic. Trials in their entirety have been able to run entirely virtually. However, as restrictions have eased, parties can no longer expect that giving evidence by video or remote means will be permitted in each case, as the recent decision in Jackson v Hayes and Jarvis (Travel) Ltd [2022] 1 WLUK 321 (QB) indicates.

Factual background

In Jackson, the Claimant suffered life-changing injuries following an accident in Kenya which occurred during a package holiday. She subsequently brought a claim against the Defendant for damages and consequential losses in excess of £5 million. Liability was disputed between the parties. At a CMC, the court ordered a split trial, with the issue of liability to be tried over a three-day trial window. The Defendant intended to call two witnesses who lived in Kenya, namely a lay witness and an expert in the form of a Kenyan architect.

The Defendant applied for its witnesses to give oral evidence at trial by way of video-link or by one of the court’s video platforms. It was submitted that it was not proportionate or in the interests of justice for them to travel from Kenya, particularly given the risks of international travel during the ongoing COVID-19 pandemic, and that it would cause inconvenience to them.

However, Eady J refused the application. Whilst he noted that the court could allow a witness to give evidence via video link under CPR 32.3, the guidance in Annex 3 to Part 32 of the CPR stated that evidence by video link was “not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use…” Eady J also referred to United Technology Holdings Ltd v Chaffe [2022], whereby the court stated that the default position was now that hearings should take place in court in the absence of good reasons to the contrary.

In this case, there were potential risks if the witnesses had to attend in person. However, there was no evidence that the witnesses would refuse to attend the trial in person, or that they would face insurmountable difficulties if required to do so. There was also no direct evidence that the trial date would be jeopardised if the witnesses attended in person. In the absence of any evidence to support the concerns raised by the Defendant, and in the present circumstances, the application was refused, and the witnesses were therefore ordered to attend the trial in person.

Comment

Given the easing of coronavirus restrictions and the opening of borders around the globe, it seems that the argument that the risks of international travel justified virtual attendance of a witness was always in some difficulty. What was particularly interesting in Eady J’s assessment of this issue is that he noted that the Defendant had not provided any information as to how or where the witnesses would give their evidence in Kenya, so as to reassure the court that sufficient safeguards had been put in place. This decision provides some food for thought for those making similar applications. In particular, it demonstrates what evidence the court will expect to see in these applications and emphasises that virtual attendance of witnesses is certainly not always guaranteed.

About the author

Ranked by the Legal 500 2021 and 2022 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.

Denied boarding compensation – all change, or small change?

This week saw the Government launch a consultation on proposed reforms to the rules for compensation for flight delays.

Arguments for reform can be made both by the travel industry and by consumers: denied boarding compensation came in before the big growth in low-cost flights. Compensation payable when low-cost flights are delayed can be more (and sometimes much more) than the cost of the flight, in contrast for compensation payable for rail transport, which relates to the cost of the ticket. From a consumer’s perspective, delays of less than three hours (for shorter flights) do not attract compensation at present, but such delays may still cause significant inconvenience. It can be argued that some passengers are overcompensated – if their ticket was cheap – and other passengers are undercompensated if their flight delay is less than three hours.

Hence the proposal for reform: to provide graded compensation linked to the ticket cost. Passengers delayed by one to two hours could receive 25% of their ticket cost, increasing to 50% for two to three hours, and 100% for more than three hours.

But it’s important to point out that the effects of any reform will be limited, because it will only relate to domestic flights. The impact assessment says “due to international conventions the proposed reform would not be possible to take forward at this time for international flights”.

The consultation considers other potential reforms.

One of these proposals is to make ADR mandatory in respect of all flights to and from the UK. 22 airlines are currently members of an approved ADR scheme on a voluntary basis, covering 80% of flights to and from the UK. Making ADR mandatory would increase the scope for passengers on the remaining 20% of flights to seek redress other than through the courts.

And there are proposals to amend the compensation rules when mobility equipment is damaged in transit on domestic flights. At present, these are classified as “baggage” meaning that compensation limits apply when they are damaged, unless the passenger makes a special declaration, which may require payment of a fee. The consultation is canvassing views on whether this fee should be removed and what other reforms could be considered to provide greater support to air passengers with disability needs.

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.

Drawn (out Strike Action Causes Ryanair a Headache)

In Civil Aviation Authority v Ryanair DAC [2022] EWCA Civ 76[2022] 2 WLUK 8, the Court of Appeal found that HHJ Gerald (sitting as a High Court Judge) had been right to hold at first instance that Ryanair employee strike action relating to their employment conditions which resulted in a number of flight cancellations did not constitute “extraordinary circumstances” under EU Regulation (EC) No 261/2004 (“the Regulation”) such as to exempt Ryanair from paying compensation to passengers. It further confirmed that this remained the case regardless both of whether the aims of the strikers were reasonable and of the involvement of trades unions.

The factual background to the claim was that in December 2017 Ryanair decided to recognise trade unions for its pilots and cabin crew and thereby change its long-standing practice of negotiating employee terms and conditions through a system of representative committees. This change resulted in a round of subsequent negotiations in which an impasse was reached owing to demanded “minimum requirements” by the negotiating union which Ryanair felt it could not accede to without significantly jeopardising its business model. This impasse led to subsequent strike action by the Ryanair pilots and cabin crew on a number of days in July and August of 2018, until the two sides eventually reached an agreement in September 2018. As a result of these strikes, Ryanair cancelled a number of flights scheduled to depart from an airport in the United Kingdom.

Article 5 of the Regulation provides so far as relevant (highlighting added):

“1. In case of cancellation of a flight, the passengers concerned shall …

(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless:

(i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or

(ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or

(iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.…

3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.”

Ryanair refused to pay compensation to passengers in relation to the cancelled flights on the basis that the cancellations were caused by factors which amounted to “extraordinary circumstances” as provided in Article 5(3).

At first instance, the Civil Aviation Authority (“the CAA”) brought a claim pursuant to part 8 of the Enterprise Act 2002 which allows it to apply for an “enforcement order” if it thinks that there has been a contravention of the Regulation which harms the collective interests of consumers. Judge Gerald made the enforcement order requiring Ryanair to compensate the affected passengers on the basis that the strike action of its employees did not, in fact, amount to “extraordinary circumstances” for the purposes of Article 5(3).

In the Court of Appeal, Newey LJ (with whom Lewison and Snowden LLJs agreed), cited a number of European authorities, reminding himself that “by virtue of section 6(3) of the European Union (Withdrawal) Act 2018 any question as to the meaning or effect of any “retained EU law”, including the Regulation, is in general to be decided in accordance with pre-withdrawal decisions of the CJEU.” and that whilst the court was not similarly bound by decision of the CJEU made since the end of 2020, by section 6(2) it “may have regard to anything done on or after IP completion day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal”: relevant, since two of the authorities cited had been decided post 2020.

Applying the case of Krusemann v TUIfly GmbH (C-195/17) EU:C:2018:258, [2018] Bus. L.R. 1191, [2018] 4 WLUK 202 and in harmony with a long line of other cases, he emphasised fundamental to the definition of circumstances as “extraordinary” for the purpose of Article 5(3) is that they arise out of factors “external” to the airline in question.  In the absence of an external factor such as terrorism, sabotage, an unruly passenger, a bird strike, or a hidden defect (all of which had been held to be “extraordinary”), strikes over pay and employment conditions could not, therefore be so defined:

“36. To my mind, paragraphs 41 and 42 of the CJEU’s judgment in Krüsemann indicate that strikes over pay and employment conditions are not to be regarded as “extraordinary circumstances”. The CJEU observed in those paragraphs that air carriers “may, as a matter of course, when carrying out their activity, face disagreements or conflicts with all or part of their members of staff” and that “under the conditions referred to in paras 38 and 39 of this judgment, the risks arising from the social consequences that go with such measures must be regarded as inherent in the normal exercise of the activity of the air carrier concerned”. Mr Kennelly naturally stressed the reference to paragraphs 38 and 39 of the judgment, where the CJEU spoke of there having been a “wildcat strike” following a “surprise announcement of a corporate restructuring process”, but it appears to me that the CJEU recognised that it is inherent in the normal activity of an airline such as Ryanair that it may find itself at odds with some or all of its employees, and there is an obvious risk of such a dispute leading to strike action on occasion.”

Importantly, the court reached this conclusion notwithstanding the fact that in recital 14 of the Regulation it is said extraordinary circumstances might, indeed, occur in cases of “strikes that affect the operation of an operating air carrier”. Here the court pointed out that the mere inclusion of such strikes on a list of events which might produce extraordinary circumstances did not mean all such strikes should be so characterised. Rather, “strikes that affect the operation of an operating air carrier” were most likely to represent extraordinary circumstances if they did not involve the carrier’s own staff.

About the Author

Dr Russell Wilcox was called to the Bar in 2000, and before joining chambers enjoyed an illustrious career in academia. He was an associate member of McNair Chambers in Qatar, where he worked on a number of large-scale cross-jurisdictional commercial disputes and on international arbitral proceedings, and acted as disclosure counsel in Athenasios Sophocleus & Others v Secretaries of State for Foreign and Commonwealth Affairs and Defence, relating to the actions of the Colonial Administration in Cyprus during the Cyprus Emergency of 1956 to 1959. He now accepts the full range of work undertaken by the travel team at 1 Chancery Lane.

…And Finally…

We were interested to read the judgment of Ritchie J in Cojanu v Essex Partnership NHS Trust [2022]  EWHC 197 (QB), in which our erstwhile colleague at the cross border Bar overturned a finding of fundamental dishonesty on the part of Mr Recorder Gibbons, sitting at Norwich County Court. The Recorder had based his finding on the Claimant’s undeniable untruthfulness as regards how his injuries had come about. Mr Cojanu had been, at the time of the events which gave rise to his clinical negligence action against the Defendant, a prisoner on remand at HMP Bedford. He had suffered deep cuts to his right hand which he said the Defendant had failed to treat appropriately, giving rise to the need for reconstructive surgery. He had in his pleadings been coy about how he came by the cuts, but the Defendant discovered that he had sustained them whilst drunkenly attempting to murder his wife with a kitchen knife, an offence of which he had subsequently been convicted and in respect of which he had been imprisoned. The Trust therefore asserted that the claim should not succeed due to illegality (what we old timers know as ex turpi causa) and because the Claimant had lied about how the injuries came about, saying they were caused by his wife. The Recorder dismissed the illegality defence but acceded to the Trust’s submissions on fundamental dishonesty. The Claimant appealed. Ritchie J helpfully set out in his judgment at paragraphs 39 to 53 the principles to be applied in cases involving allegations of fundamental dishonesty, and then went on to observe that the mechanism by which the Claimant received his cut was irrelevant to success in the clinical negligence claim, therefore his dishonesty in relation to that issue was incidental and not fundamental to the claim. He pointed out that:

“…all citizens are equally entitled to come before the courts in civil claims. Those with a long list of previous convictions and those without.  Some will have better credibility than others, but S.57 is not a credibility filter barring those with previous convictions from bringing civil actions.  S.57 focusses on the claim and the matters fundamental thereto and the Claimant conduct therein…”