16
May
22
Articles, Travel & Cross Border Claims
The Weekly Roundup: The Eurovision Edition

Exhilarated. Emotional. Exhausted. Yes, the team were glued to the 1CL telly this week for the Eurovision semi finals and final, and with the results now in Conor Kennedy’s is the name freshly engraved on the 1CL Eurovision Sweepstake Shield. Congratulations, Conor. Meanwhile the groundwork is being laid for UK and Eurolaw to diverge further, the courts have revisited the place of business test for jurisdiction, and the Scottish courts have heard the appeal in Warner v Scapa Flow Charters [2022] CSIH 25.

 

Service without a Smile: What Constitutes a ‘Place of Business’ under CPR r.6.9?

On 29th Apr 2022 Mr Justice Jay handed down judgment in BW Legal Services Limited v Glassdoor Inc [2022] EWHC 979 (QB). The decision is one of a number of recent decisions (see Alli-Balogun v On the Beach Ltd [2021] EWHC 83 (QB) and Hand Held Products v Zebra Technologies Ltd [2022] EWHC 640 (Ch)) on the circumstances in which a foreign company will be deemed to have a place of business within the jurisdiction by virtue of a separate legal entity within the same group having a place of business here.

The Claimant, BW Legal Services Ltd (BWLS), is law firm based in Leeds which specialises in debt recovery. The Defendant, Glassdoor Inc (GD), is a California-based company which owns and operates the websites www.glassdoor.co.uk and www.glassdoor.com. The websites contain reviews of employers by their employees.

Two anonymous reviews about BWLS appeared on GD’s UK website in October 2021. BWLS contended that the posts were defamatory and issued a Part 8 Claim Form on 9th November 2021 seeking a Norwich Pharmacal order (an order for a third party to disclose information as to the identity of a wrongdoer). It did not seek permission to serve out of the jurisdiction on GD but instead gave an address for service in London, being the address of Glassdoor Global Limited (GGL), a separate corporate entity within the same group as GD. On 19th November 2021 Master Eastman made the order on paper and without notice. The order was then sent by C to GD via GGL demanding compliance. GD applied to set aside the Claim Form and order under CPR r.11(1)(a) and/or (b) and/or CPR r.23.9 and 10, i.e that the Court lacked jurisdiction to make the order and/or should not exercise such jurisdiction as it had and/or because the application had been made without notice.

The Court held that:

  • Service on GGL c/o GD was invalid under CPR r.6.9. Despite the commercial nexus between the two, GGL was not GD’s representative in England/Wales and GD’s business was not carried on from GGL’s London address. Adams v Cape Industries [1990] 1 Ch 433 The Court therefore lacked jurisdiction.
  • Further, the claim ought to have been issued in California, where GD was based. BWLS had agreed to GD’s Terms of Use, which contained a choice of jurisdiction clause in favour of the Courts of California. In those circumstances, BWLS would have to provide a compelling reason for pursuing a claim here, which it had failed to do.
  • Whilst the Court ought not to have made the order on paper, without notice, BWLS had not asked the Court to deal with it in that way. On the other hand, once the order had been made, BWLS ought to have corrected the matter so that GD could make representations.
  • In all the circumstances, the order must be set aside.
  • The Court did not therefore have to go on to consider GD’s contention that the conditions for the grant of a Norwich Pharmacal order had not been made out in any event, but the Court expressed doubt about whether BWLS could prove that the posts had caused serious financial loss.

As the travel market continues its shift towards online-only suppliers, many of whom have complex corporate structures involving entities based within and without the jurisdiction, the right to bring claims within the jurisdiction is becoming an increasingly common battleground. The right to serve foreign companies within the jurisdiction under CPR r.6.9 and what precisely is meant by a corporation ‘carrying on its business’ or having a ‘place of business’ will inevitably come into sharper focus.

About the Author

Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.

 

Euro-revision: Brexit freedoms and altering retained EU law

As the Government wages war on its own staff working from home, one public servant who wasn’t at work this week was Her Majesty herself, who presumably did not receive a passive aggressive note from her privy counsellor Jacob Rees-Mogg for her non-attendance to the state opening of Parliament on Tuesday. Instead it was Prince Charles who had the task of heralding the new legislative programme. There was plenty of material for legal practitioners to listen hard for – most notably the announcement of the so-called ‘Bill of Rights’ which aims (apparently without facetiousness) to ‘restore some common sense to our justice system’ – but for readers of this periodical, of most interest might be the ‘Brexit Freedoms Bill’.

The Bill promises, amongst other things, to ensure that retained EU law can be amended, repealed or replaced ‘without this taking decades of parliamentary time to achieve’. In practice this looks like an intention to create a number of powers in the Act which will allow Ministers to alter retained EU law by way of secondary legislation (as was done with the ‘correcting’ powers in the EU (Withdrawal) Act 2018). Although secondary legislation is still subject to Parliamentary approval, most instruments are simply nodded through and take up very little Parliamentary time. There is therefore perhaps something of an uneasy tension in the briefing notes (to put it as neutrally as possible) between the championing of Parliamentary scrutiny over the affairs of the Brusselian bureau and this attempt to transfer a good amount of law-making power from the legislature to the executive.

The second major promise is to remove the ‘supremacy of retained EU law over UK law’ within the UK legal systems. That seems at first glance to be a logical thing to want to do – it would seem odd to continue to think of EU law as ‘supreme’ – but when considered practically, the sense of this aim is not so obvious. Section 5 of the EU (Withdrawal) Act 2018 sets out that the principle of supremacy of EU law continues to apply where relevant to the interpretation, disapplication or quashing of enactments made before the end of the transition period. That means that as things stand in the law today, retained EU law does not trump new legislation made since January 2021. Hence the Government’s intention in the Bill must be to make changes to the way the law works/worked retrospectively. The Bar Council have pointed out in their response to the Government’s consultation that this is a real problem for legal certainty because businesses and individuals who took decisions based on their understanding of how the law operated at the time could now have the rug pulled out from under them. If the Bill does what it says it wants to do, domestic legislation passed before 2021 will now prevail where it is incompatible with earlier EU law (now retained), despite at the time at which the Act was passed everyone believing the situation to be the other way around.

It will be interesting to see how the law progresses as it ping-pongs between the Houses of Parliament. I imagine that, in particular, the learned members of the Lords will have something to say about both the executive power transfer and the retrospective interference with a readily understood legal order. I predict that it could all get very ‘meta’ with a number of parliamentarians likely to complain about how the Bill about scrutiny is getting too much scrutiny. When you read the unintentionally self-satirical tweets, remember you read it all here first.

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.

 

Casenote: Warner v Scapa Flow Charters [2022] CSIH 25

The latest in our occasional series of Dispatches From North Of The Border serves to reaffirm our love of Scottish legal language. Interlocutors were recalled and a decree of absolvitor was pronounced by the Court of Session (Inner House, First Division) in the appeal in Warner v Scapa Flow Charters [2022] CSIH 25. We have brought the case to the attention of readers before, but as a reminder, the facts were rather tragic. Mr Warner tripped and fell whilst wearing fins on board a diving support board, but thinking he had not sustained injury he continued to dive. He had in fact suffered internal injuries which contributed to his drowning. His widow brought proceedings against the boat operators, succeeding at first instance before the Lord Ordinary, who found fault established in respect of the risk assessment which the defenders were required to carry out under Regulation 7 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997, and which had failed to identify that walking on deck in fins was inherently risky. The defenders reclaimed against the decision. The question before the Inner House was whether the defenders’ duty to those on board extended to prescribing, monitoring and controlling the manner in which the divers put on their equipment and made their way from their seated positions on the vessel to the exit point. The Lord President, Lord Woolman and Lord Pentland allowed the reclaiming motion on two grounds:

First, the Lord Ordinary did not appear to have given the practice of the divers in walking, what was (in the deceased’s case), a very short distance to the exit point in fins, any weight at all: evidence of what those experienced in diving operations regarded as appropriate in the knowledge of the risks involved could not be ignored, and there was a sense of unreality in an untutored skipper of a vessel being expected to devise a system of finding out which diver was a ‘fins first’ person, which was ‘fins last’ and taking it upon himself to allocate seats at relative distances from the exit point, telling experienced divers how and when to walk on their fins and ensuring that the services of a deckhand were used even if they were neither required nor wanted; the divers were far better placed than the skipper to decide upon what constituted a reasonably safe system of moving a very few metres along an unobstructed and non-slip deck which was provided with adequate handrails.

Secondly, in relation to the defenders’ risk assessment, it was far from clear why the Lord Ordinary did not consider that, given the defenders’ limited role of carrying out their own operations on board, navigating with reasonable care and providing a safe vessel for the dive, the steps taken by them did not meet the required standard of care, especially given the absence of any assumption by the defenders of any greater responsibility. There was, in short, a fundamental problem with the Lord Ordinary’s conclusion. The problem focused on whether, when setting the standard of care, the defenders had any substantial responsibility for the divers’ movements, from the point at which they began to gear up, beyond providing them with a safe vessel (including handrails) and taking reasonable care in the navigation of the vessel during its passage to, at, and passage from, the diving site.

It was sufficient in the exercise of reasonable care for the defenders to have provided a safe means of moving from the seat to the exit point in the form of a non-slip and unobstructed deck, handrails and a deckhand; Mr Warner, who was well aware of what was an obvious and inherent risk, chose not to use the provided means, but that was a matter for his choice in the context of a leisure pursuit in which he, and not the defenders, was the skilled and experienced person. It followed that the pursuer had failed to prove fault within the meaning of Article 3 of the Athens Convention, and the claim must fail.

Comment

This decision has been a long time coming; attentive readers will recall that initially there was a limitation issue, resolved in favour of the defenders at first instance but reversed on appeal. The accident which gave rise to the claim occurred on 14th August 2012 and proceedings were signetted (issued, to you and me) on 14th May 2015. This latest judgment was handed down on 10th May 2022, some seven years after issue and almost a decade after the accident. The outcome is of course a desperately disappointing one for Mr Warner’s widow and son, but it is suggested that it is the right one. Divers have a high degree of autonomy due to the nature of their chosen pastime, and they choose where, when and how to gear up. The author tends to stand majestically on the brink of the dive boat whilst crew scurry around her attaching fins and tanks and whatnot, leaving her with only the task of flopping gracefully into the water and (hopefully) sinking whilst breathing. Others prefer to gear up at an earlier stage. The point is that this is their choice, and the implication of the claim made against the dive boat operators was that they should be deprived of this autonomy. The author finds it difficult to accept that this should be the legal position; as, in the event, did their Lordships. Of course it would be a different matter if the breathing equipment fell apart whilst the diver was underwater, as happened to the author on a recent dive trip; but that’s another story…

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. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she was a member of the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists, and is a member of the Admiralty Court Users’ Committee. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.

…And Finally…

Regular readers will recall that a couple of weeks ago we brought to you news of a crackdown on drinking instigated by the local authorities in Ibiza and Mallorca. This week we read of warnings to holidaymakers in the affected resorts that the authorities are planning to impose hefty fines on people attending illegal parties. The British Embassy explains the reasoning behind the decision:

“There have been a number of serious accidents involving people attending irregular commercially promoted parties in villas and private homes on the islands of Ibiza and Majorca. Licensed clubs and bars are required to meet safety and security standards, including emergency exits and capacity limits, and to have trained, licensed security staff. Irregular commercial parties may not meet these standards.”

To which we would only add that they are unlikely to have any, or any adequate, insurance to call upon should things go wrong.

The response from British travellers to these new policies has been predictably brusque, raising an interesting conundrum: will holidaymakers injured at these illegal parties find themselves on the wrong end of a finding of volenti non fit injuria? Only time will tell.

Written by or involving: Sarah Prager, Tom Collins, Thomas Yarrow

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