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Articles | Mon 24th May, 2021
The excitement at 1CL reached fever pitch this week, which saw, after a two year hiatus, the return of the 1CL Eurovision Sweepstake. We know that the Eurovision is not for everyone, but it was at least encouraging to see a return to some kind of normality; if indeed that word can be applied to the Eurovision, even at the best of times. Meanwhile, it was a bad week for some of the airlines; the General Court of the European Union annulled the state aid provided to KLM and TAP, the Dutch and Portuguese national carriers respectively, on the grounds of inadequate reasoning, and the English High Court demonstrated to Air Canada that you should be careful what you wish for. In Varano v Air Canada [2021] 5 WLUK 207 the airline insisted that what would otherwise have been a small claim for €600 should be heard by the High Court in order to provide a precedent in relation to the matters litigated. This has turned out to be a mistake, at least for the time being, since the claim succeeded, the court finding that the existing authorities provided a ‘clear answer’ to the issues raised in the case. So we now have a High Court determination that connecting flights are to be treated as a single flight for the purposes of Regulation (EC) No.261/2004, with the effect that a passenger may be entitled to compensation where one leg of the flight is significantly delayed or cancelled, even where that leg does not begin or end at an EU airport and the flight is not operated by an EU carrier. In Varano the Claimant had booked a ticket for a flight from London to Texas via Toronto, and the first leg of the flight had gone to plan, but the Toronto to Texas flight was delayed by five hours. The Defendant was not a Community carrier. Nevertheless, following the analogous decision in Gahan v Emirates [2017] 10 WLUK 299, the Regulations applied because the journey, taken as a whole, had begun within the EU. For what it is worth, the decision appears entirely consistent with both domestic and CJEU authority on the Regulations.
Here I Stand: ‘Accident’ within the Meaning of the Montreal Convention
A recent Israeli case, NR v IAA (CF 58288-02-19, 2021), when read with the recent judgment of the Court of Justice of the European Union in YL v Altenrhein Luftfahrt GmbH (Case C-70/20), raises some intriguing possibilities. For a full discussion of the decision in YL, you can’t do better than Jack Harding’s recent Special Briefing, to be found here. Essentially, the CJEU found that a hard landing which caused the Claimant a spinal injury was not an ‘accident’ within the particular meaning given to that word in Article 17 of the Montreal Convention. In doing so the Court held that the incident giving rise to the claim must, if it is to be classed an accident, be unusual or unexpected from an objective and not a subjective point of view. If therefore the incident fell within the normal operating range of the aircraft, Article 17 would not be engaged.
As Jack observes in his briefing, this decision appears at first blush to be inconsistent with the English line of authority following the decision of the Supreme Court in Re: Deep Vein Thrombosis [2005] 3 WLR 1320, which holds that the event must be subjectively unusual or unexpected; that is, from the point of view of the passenger. Jack suggests that the tension between the two can be resolved by way of an ‘objective bystander’ test; so an event which is unusual and unexpected from the point of view, not of the airline or of the passenger in question, but of the finder of fact, would qualify as an accident within the meaning of Article 17.
In NR the Claimant brought a claim against the Israeli Aviation Authority, which operates Ben Gurion International airport, after someone collided with her whilst she stood reading the flight schedule board, thereby causing a fracture to her shoulder. She said that had the airport provided ground stewards to shepherd the unusually high number of people in the terminal, the incident would not have occurred. The court accepted her contention and noted that similar incidents had occurred on three previous occasions, and in respect of all three the IAA had been found liable to the passengers (cf Nasser v MHM Ltd (CA 6216/03, 2005) and Lautman v Soroka Medical Centre (CA 9719/10, 2012)). Further, Israeli domestic law reversed the burden of proof, so that it was for the IAA to show that the lack of stewards had not contributed to the accident, and it had not done so. The court therefore found for the Claimant.
Clearly the incident giving rise to the claim in NR did not fall within the scope of the Convention; but what if it had? What if, for example, in his eagerness to catch a flight to Mustique a certain British politician were to collide with another passenger in the course of embarking on a flight to Newcastle in order to visit the celebrated nearby Castle? Would the collision be classed as an accident within the meaning of the Convention? The airline would surely say that it would not. The event would hardly be unusual from the point of view of the airport or the airline; visitors to airports must bump into each other all the time. But from the point of view of the indignant collidee, being run over by a galloping politician would be very unusual indeed. What would an objective bystander make of it all? Remember, under Article 17 the Claimant need only prove that an accident within the meaning of the Convention has occurred; he or she need not prove causative (or any) fault on the part of the airline. So if a collision between passengers is an accident, the claim will succeed.
In the opinion of the author an English court considering such a claim would be likely to have half an eye on public policy and floodgates considerations. If a Claimant were able to succeed in a claim under the Convention in such circumstances there would be risk of unscrupulous passengers throwing themselves into collisions with other passengers throughout the airports of England and Wales. ‘Collision for compensation’ could be the next ‘crash for cash’. And yet – can it really be said that this type of occurrence is not unexpected? It surely depends how you characterise the event; passengers bumping into each other is not unusual, but a passenger colliding with another person with sufficient force to cause him or her significant injury may well be.
As international travel resumes, and as the caselaw in this area continues to develop, we will surely see more judges grappling with these concepts in the months and years to come. Will we see the caselaw of the EU diverge from that of the other signatories to the Montreal Convention? Only time will tell.
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 has recently been invited to join the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists.
Birth of a New Age: the Whiplash Reforms and Accidents with a Foreign Element
The whiplash reforms are finally here. Or at least they will be by this time next week. Laid before Parliament on 25th February, and finally approved by the affirmative procedure in both the Houses of Parliament last Tuesday, the Whiplash Injury Regulations 2021 come into force on 31st May. The Regulations set out a new range of tariffs for PSLA damages for whiplash type injuries resulting from road traffic accidents. Both with and without concomitant psychological injuries (travel anxiety etc.), these range from £240 at the very bottom for injuries of less than three months duration without a psychological injury all the way up to £4,345 for soft-tissue prognoses of up to two years alongside a psychological element. These figures are considerably less than the previous awards which practitioners have been used to under the Judicial College Guidelines.
Alongside the Whiplash Regulations there is a new raft of amendments to the Civil Procedure Rules. The Rules themselves are amended by the Civil Procedure (Amendment No. 2) Rules 2021, also laid on 25th February 2021 (under the negative procedure this time, and unsurprisingly, there were no objections). Simultaneously the Master of the Rolls has issued a new and catchily named ‘Pre-Action Protocol for Low Value Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents’ and a new Practice Direction 7B for claims exiting the new protocol and beginning life before the courts. The amendments to the rules themselves are most notably to Part 26 and in particular rule 26.6 on allocation. The new rule 26.6 specifies that the Small Claims Track is the normal track for road traffic accidents where the value for personal injuries is not more than £5,000. This is expressly for accidents which occur on or after 31st May 2021. The limit remains £1,000 for other personal injury actions.
The more arithmophilic readers will therefore note that even the highest of the new tariffs comes in under this limit and the small claims track will be the normal track for such claims.
The policy aim of the reforms is stated on Gov.uk to be “to tackle the high number and costs of whiplash claims, and the impact these have on the cost of motor insurance premiums for hard working families.” Costs are a given, as the reduction of tariffs and the new rules on allocation will necessarily lower the cost to insurers in pounds and pennies, but whether pulling the lever will result in fewer claims will remain to be seen. Behavioural scientists will tell you it is not always that simple.
But this is a travel briefing, so what of road traffic accidents involving a cross-border element? How do the reforms apply to them? First scenario, for accidents occurring outside England and Wales: typically the applicable law of the claim will be the foreign law, and therefore quantifying damages will fall under the local regime and not the 2021 Regulations. The new rules on allocation will also not apply to a foreign accident: a new rule 26.6(2A) defines ‘road traffic accident’ for the purposes of the allocation rules as being an incident which occurs on a road or public place in England and Wales. £1,000 will remain the small claims limit for these cases.
What about claims against foreign registered vehicles and/or foreign defendants? In short, the new tariffs apply, but the new allocation rules do not. Section 1(4) of the Civil Liability Act 2018 (the primary legislation under which the 2021 Regulations are made) which gives the definition of a ‘whiplash injury’ and therefore defines the scope, specifies that both the Claimant and Defendant must be using (or being carried by) motor vehicles in England and Wales; it does not make any carve out for foreign vehicles or foreign defendants. The CPR amendments on allocation, however, do make such a carve out. Working through the new rules (and bear with me) – a new rule 26.6(1)(a)(ii)(bb) specifies that the new allocation system does not apply in any of the circumstances specified in a new rule 26.6A. Rule 26.6A(e) (which one would think should be 26.6A(5), but there we are) sets out that unless new rule 26.6B applies, one of those circumstances is where the defendant’s vehicle was registered outside the UK (N.B. Scottish and Northern Irish Vehicles are not carved out). The new rule 26.6B specifies that for children and protected parties, the claim will never be allocated to the small claims track for whiplash injuries (even if below £1,000). For good measure, the new Protocol specifies the same in paragraph 4.3: even if all of the conditions which would otherwise mean a claim falls under it are satisfied, the Protocol will not apply to a claim “where the defendant’s vehicle is registered outside the UK”.
There is a sensible policy reason for this. Recovery of costs for Claimants on the small claims track is pitiful. In a claim against a foreign defendant, litigation will necessarily be more expensive (particularly after Brexit). By carving out these types of claims, the government has elected to afford the weaker parties a little more protection.
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.
…And Finally…
After last week’s knuckle-rapping for the High Court judge who took 19 months to produce a judgment (cf Natwest Markets Plc v Bilta (UK) Ltd (In Liquidation) [2021] 5 WULK 66), we were interested to read this week of the Master of the Rolls’ horror at the six year jurisdictional challenge occurring in Alta Trading UK v Bosworth [2021] 5 WLUK 148. The parties have travelled all the way to the Court of Justice of the European Union before going back to start again in the High Court, up again to the Supreme Court, down to the Commercial Court, and then, most recently, up to the Court of Appeal, where the matter came to the attention of Sir Geoffrey Vos MR, Henderson LJ, and Nugee LJ. Nugee LJ gave the lead judgment, leaving the Master of the Rolls to say only this:
It seems that the defendants have spared no expense in seeking to challenge the jurisdiction of the English court over them. There have now been no fewer than 6 substantive hearings at different levels from the Commercial Court to the CJEU, and many interlocutory ones. The claim form was issued as long ago as 13 February 2015, now 6¼ years ago, but the defendants have yet even to file a defence to the claimants’ claims for some US$339 million. This, I regret to say, is an indictment of a system that has, in this case, allowed relatively straightforward jurisdictional arguments to expand into an unrestrained litigation extravaganza. Courts at all levels need to keep a close eye on proportionality.
In my judgment, the defendants’ jurisdiction challenges must now be considered to have been finally resolved, and the litigation should move to its substantive phase.
We can only imagine what he makes of the ongoing litigation in FS Cairo v Brownlie [2020] 7 WLUK 417 (nine years and counting). And this may be of more than passing interest to litigants in cross border disputes; not only should they be advised that in the event of a tenacious jurisdictional challenge their claim might well be delayed by some years, but any argument that the courts of England and Wales are the forum conveniens for the claim based on their efficient distribution of justice (as in Pike v Indian Hotels [2013] 12 WLUK 744) now looks increasingly difficult to make out. In Pike, it will be recalled, an anticipated 15 year delay before first instance judgment in the Indian courts was held to render the courts of England and Wales the more appropriate forum, providing as they did proper access to justice. Only time will tell whether Lady Brownlie and NatWest will manage to have their cases heard more timeously.
