27
Sep
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Gamblers’ Edition

As everyone knows, we at 1CL like a flutter; in truth, what litigator does not? The ability to assess odds is an important part of our professional skillset. So we were intrigued to read of a new cruise ship, NCL’s Norwegian Prima, which will feature a three-level racetrack. Our musings around the logistical challenges involved in caring for a stable of racehorses aboard the vessel were cut short, however, when we saw that the track will be used for go-karting. Apparently there are no fewer than fourteen ‘nail-biting’ turns, and fifteen drivers will be able to race at speeds of up to 30mph. Not only that, but there will be a freefall dry slide, which involves a ten-story drop ‘reaching the highest G-forces of any cruise line’; greater, we understand, than an accelerating Formula 1 racing car. It seems to us that the decision of His Honour Judge Freedman in Harrison v Intuitive Business Consultants Limited [2021] 8 WLUK 187 could not have come at a better moment for NCL. In that case, it will be recalled, the Claimant sued the organiser of an assault course event for injuries she sustained when falling from monkey rings. Her claim failed because the court found that the Defendants had conducted appropriate risk assessments and provided the Claimant with appropriate instruction in how to tackle the course. The judge concluded:

“This was a most unfortunate accident resulting in very serious injuries. It goes without saying that the Claimant is deserving of much sympathy. I am satisfied, however, that her accident and the resultant injuries were not occasioned by any fault on the part of the Defendants. Accidents of this type are an inherent risk of participation in activities such as obstacle races; and no amount of care and vigilance on the part of the organisers and planners of such events can eliminate the possibility of such risks materialising from time to time. The Claimant elected to participate in the Bear Grylls Race and, whilst, of course, she did not expect to suffer any injury when doing so, nevertheless, it was a risk of which she was well aware when she registered for the event and signed the indemnity. Her confidence in her ability to complete this obstacle was not misplaced; it was simply a matter of grave misfortune that she was the victim of a serious accident.”

It is an unfortunate truism that not every gamble pays off, as the Claimants in this week’s cases discovered to their cost.

Covid Cancellations: Gambling on Insurance Cover

In a recent case I acted in, the court was asked to determine an insurance claim arising out of cancellation of a trip due to changing Foreign and Commonwealth Office advice in light of the Covid-19 pandemic. While it was the first such case this particular insurer had seen go to court, it is believed that there are many similar cases which are likely to be heard in the coming months.

The Claimant had an international flight booked just before the March 2020 lockdown. Two days before he was due to fly, the FCO advised against all but essential travel. Without contacting the insurer or the airline (which had not yet cancelled the outbound flight), the Claimant cancelled his flights. The return flight was later cancelled by the airline. The Claimant claimed the cost of the flights under the cancellation section of his policy. The insurer refused the claim, noting that the Claimant only had cancellation cover in seven expressly defined circumstances, none of which applied. The Claimant pursued his claim in the county court.

The Claimant’s claim was superficially attractive. He pointed out that under the general exclusions of the policy, he would not be covered for any claim arising out of him travelling to a country to which the FCO had advised him not to travel. He further argued that this obliged him not to travel.

The Defendant, while disputing that the Claimant was obliged not to travel, accepted that if its construction of the policy was correct, the Claimant was left with a choice of travelling without insurance or cancelling his trip and bearing any cost not recoverable from the airline. However, the Defendant argued that this was the consequence of the Claimant having purchased a policy which only provided cancellation cover in specified circumstances and which moreover expressly stated that no cover was available for disinclination to travel.

The court preferred the Defendant’s construction of the insurance contract and dismissed the claim. The outcome does seem unfortunate for the Claimant who paid for insurance for his trip, had to cancel it through no fault of his own, followed the FCO advice and would have found himself uninsured if he had travelled. However, the case serves as a reminder that ultimately these cases are likely to turn on a strict construction of the words of the policy itself. The Claimant had argued that the Defendant’s position was in breach of an implied term that he would be covered in these circumstances, but was unable to identify a legal means by which such a term would be implied. Ultimately it is to be remembered that insurance policies are all about balancing risk between insurer and consumer. A consumer who wants more comprehensive cover will usually be able to obtain it, but will have to accept paying a higher premium. A consumer who chooses, and pays for, a policy which unambiguously limits the extent of cover being offered, will be bound by those limits, however unforeseeable or unfortunate the circumstances which arise.

About the Author

Ella Davis was called to the Bar in 2013. She undertakes work in the cross border field on behalf of both Claimants and Defendants. She has particular expertise in claims involving allegations of fundamental dishonesty and has a good deal of experience in conducting trials around the issues which arise from such allegations.

 

Late Adjournments: Gambling on the Court’s Patience

It is often perilous to make an application shortly before a listed trial which is likely to lead to an adjournment, as the recent case of FTAI Airopco UK Ltd v Olympus Airways SA [2021] 9 WLUK 259 demonstrates.

Factual background

The Claimant was the lessor through a novation agreement by which it took over an aircraft lease. The Defendant was the lessee. There was a dispute between the parties as to the nature of the Claimant’s interest in the aircraft.

A single joint expert was appointed, and the matter was listed for trial in October 2021. The Defendant had made an application in May 2021 to appoint a further expert, yet this application was refused.

The Defendant later renewed that application, and also applied to cross-examine the single joint expert, amend its defence, and adjourn the trial.

The applications came before HHJ Pearce in the High Court, and judgment was handed down on 23rd September 2021.

Judgment

The Defendant’s applications were refused. When dealing with the late amendments, the Judge noted that the court would have to consider whether it would put the parties on an unequal footing and/or jeopardise the trial date. The Judge said there was a heavy burden on the party seeking a very late amendment to show the strength of their new case and why justice to that party, their opponent and other court users required them to be able to pursue it.

In this case, the Judge considered that the amendments concerned matters already pleaded and were unnecessary. Further, the amendments would require the trial to be adjourned, as the Claimant would have to consider whether to serve further evidence. None of the amendments were permitted, as disruption to the trial process so close to trial could not be tolerated.

Turning to the issues concerning the expert evidence, the Defendant contended that the single joint expert had not properly disclosed his duties and was biased in favour of the Claimant. However, the expert had been instructed upon the agreement of the parties. The Defendant had previously been given an opportunity to appoint its own expert, yet chose not to do so. Notably, an earlier application to appoint its own expert was refused, and this application appeared to be a re-run of the arguments already put. As such, the application was refused. It was noted that the application would have been refused in any event, as it would have caused he trial to be adjourned if permitted.

Further, the Judge said that the cross-examination of a single joint expert should not be the norm, although it may be appropriate in unusual circumstances. In this case, it was not appropriate. The Defendants sought to put questions which had been put already, or simply implied the expert was biased or unqualified.

In light of the above, the adjournment was also refused.

Comments

This case demonstrates that unless a party has a very good reason as to why they need to amend their statement of case late in proceedings, an application will almost inevitably be refused if the trial date will be lost. In this case, it does not appear as though the Defendant was near to satisfying the ‘heavy burden’ upon it.

Further, if an earlier application has been refused, it is inherently risky to essentially re-run the arguments made in that application in a later one. The appropriate way to challenge an earlier decision must always be to appeal it.

About the author

Ranked by the Legal 500 2021 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.

 

…And Finally…

Regular viewers will know that participating in 1CL webinars is no gamble; if you haven’t already signed up to attend the webinar on Tuesday 28th at 12.00, you’re at risk of missing out on a fascinating discussion on How To Get The Most Out Of Your Expert, with Sarah Prager and Jose Maria Pimentel of DAC Beachcoft. Register here for the link to join.

Written by or involving: Ella Davis, Dominique Smith

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