12
Jul
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the International Rivalry Edition

Like the rest of the nation, the team was glued to the telly last night. Yes, Love Island is really hotting up now…Meanwhile, although Tom Yarrow is far too courteous to mention it, the European Commission has now formally rejected the UK’s application to join the Lugano Convention by way of Note Verbale to the Swiss Federal Council, which acts as the official depository of the agreement. This was only to be expected, of course, but the move has still been unpopular with European lawyers, creating as it does a situation of instability and uncertainty across Europe as regards jurisdiction and enforcement of judgments involving UK litigants. Lawyers from the International Academy of Family Lawyers based in twenty-two jurisdictions have argued that the EU should cease its opposition to the UK’s accession to the Convention on the grounds that its position will increase the likelihood of competing parallel proceedings, create confusion about which country should deal with maintenance payments, and undermine the enforceability of judgments. We couldn’t agree more.

 

Remote Hearings and Practice Direction 32: Don’t End Up Offside

Prior to the pandemic, it was not entirely uncommon for witnesses or experts abroad to attend trials remotely from foreign jurisdictions via a video link. Post-Covid, however, remote attendance has understandably become even more commonplace for all of the parties in such claims, as individuals have become stuck abroad, either through travel restrictions or quarantine, or have been unable to leave their homes. It seems that parties are now more readily agreeing in directions, or indeed in consent orders, for witnesses to give their evidence via video link if they are situated abroad. Despite that, it does not appear that parties always give thought to Practice Direction 32, and the consequences of it.

32PD.33, specifically paragraph 4, states the following: “It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office… with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome”. Paragraph 8 clarifies that the Court will ordinarily direct that the party seeking permission to use VCF is responsible for this. In addition, Sir Julian Flaux, the Chancellor of the High Court, published a practice note in May 2021 stating that in cases where there is a pre-trial review (“PTR”), a party calling a factual or expert witness remotely should have obtained any necessary permission from a foreign jurisdiction to give evidence by the date of the PTR. If there is no PTR, a party calling a factual or expert witness remotely should have obtained any necessary permission by the time of filing the pre-trial checklist, and should record in the pre-trial checklist that permission has been obtained.

In a recent case I was involved in, the parties had agreed by consent for the Claimant to give his evidence from Russia, as he had been stuck abroad when travelling for business purposes during the pandemic. On the date of the trial, the judge raised 32PD.33, asking whether necessary inquiries had been made as to whether the Russian government would be willing for the Claimant to be examined by means of VCF. Unfortunately, 32PD.33 did not appear to have been considered by the Claimant’s solicitors. As the Practice Direction makes plain (and as the judge emphasised), the Claimant’s solicitors could not simply presume that the Russian government would allow the Claimant to give his evidence by means of video link, whilst in their jurisdiction.

If inquiries are not made, and a judge raises 32PD.33, it is inevitable that situations may arise where a trial may have to be adjourned. Undoubtedly, arguments will be made in respect of wasted costs orders, which may well be awarded. To avoid any issues by the date of trial, parties should come equipped to trial with the knowledge of whether permission was ever required from the foreign jurisdiction, and if so, whether inquiries were made and what the outcome of those inquiries were. In addition, a party calling a witness remotely in a foreign jurisdiction should ensure the court is aware at the date of any PTR, or indeed in their pre-trial checklists, that permission has been obtained (if it is required). If permission is not required, the Court should nonetheless be made aware that permission does not need to be obtained, to avoid any arguments relating to the same on the day of trial. Failing to take these steps may result in adverse costs consequences – you have been warned…

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.

 

Data Protection: UK Sighs with Relief at Yellow, not Red, Card

Amidst all the clamour about the 30 June 2021 expiry date for UK-in-EU and EU-in-UK citizens to register for settled status, and for the various joint committees on the Northern Irish Protocol to agree to kick the can (of sausages) down the road, you could be forgiven for having missed a more anodyne deadline in the Brexit roadmap – the D-day of data.

The end of last month might have been the last day on which data could travel freely across the English Channel under the post-transition transitional provisions, unless the Commission were to issue an ‘adequacy decision’ deeming the UK frameworks for data protection to be sufficiently up to standard. The Member States voted unanimously for the Commission to do so and they did.

This ultimately was no surprise (the EU have previously made several such decisions with respect to countries outside the Single Market – e.g. Canada and New Zealand), but it was nonetheless important. Cross-border litigation for instance, in which readers no doubt have vested interests, would have become nightmarish if the data pipelines were to have been sealed off: even more impediments to disclosure, expert instruction and evidence exchange/presentation than already plague the field.

So, certainly a sigh of relief for now, but a few words of warning came alongside the announcement. The Commission press briefing contains quotations from Vera Jourova (VP for Values and Transparency) and Didier Renders (Commissioner for Justice), both heralding the decision and, with a Banquo like ability of putting a real downer on a party, applying some heavy tempering to the good news. Note: “we have listened very carefully to the concerns expressed by the Parliament, the Member States and the European Data Protection Board, in particular on the possibility of future divergence from our standards in the UK’s privacy framework” and “The Commission will be closely monitoring how the UK system evolves in the future and we have reinforced our decisions to allow for this and for an intervention if needed”.

The decisions therefore came with a ‘sunset’ clause meaning they will expire in 2025 and will need renewal. Depending on where the UK goes with various policy decisions in the next few years, the re-up may be far from guaranteed. The GDPR as we all know was retained in UK domestic law as part of the snapshot of EU law taken at the end of the transition period, and the Law Enforcement Directive which covers the non-GDPR data protection rules for the police was implemented (Part 3 of the Data Protection Act 2018) again before Brexit. Both of these were integral to the adequacy decision being taken. There does not seem to be much appetite (yet) to alter those pieces of legislation in the UK, for all the drum-banging about sovereignty.

However, importantly, the adequacy decision was also founded on the UK’s continued participation in the ECHR. The UK’s (at least partial) conjugation with Strasbourg’s Article 8 jurisprudence demonstrates a commitment to high standards and safeguards of/for privacy. For as long as the Conservatives have been in government, however, there have been constant murmurs about renouncing the Convention. If we UK were to do so, it would likely place a further adequacy decision in 2025 in serious jeopardy.

Interestingly, the Commission also highlighted the safeguards provided by the Investigatory Powers Tribunal for challenges to processing of personal data by intelligence agencies. As a point of personal interest, I wonder whether the Supreme Court decision in R (Privacy International) v IPT [2019] UKSC 22 (effectively that decisions of the Tribunal could also be judicially reviewed in the High Court) had any influence, and accordingly whether if judicial review reforms were to effectively oust that supervisory jurisdiction, that would have a downward pressure on the probability of adequacy renewal in 2025.

Data means ‘that which is given’. This month it has been gifted to the UK; long may it stay so.

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.

 

Exclusive Jurisdiction Clauses: getting into an Attacking Position

The Commercial Court recently handed down its decision in Eastern Pacific Chartering Inc v Pola Maritime Ltd [2021] EWHC 1707 (Comm), which concerned the interpretation of an exclusive jurisdiction clause in relation to a claim for damages resulting from an alleged wrongful ship arrest in Gibraltar.

Factual background

The Claimant and Defendant entered into a time charterparty for the “Divinegate” (“the Charterparty”). The Charterparty contained an exclusive jurisdiction clause, which provided that the Charterparty would be governed by English law and that any dispute “arising out of or in connection with this Charter” would be submitted to the exclusive jurisdiction of the High Court of Justice in England and Wales.

After the Defendant redelivered the vessel in November 2019, a dispute arose as to whether the Defendant was liable for the balance of the hire. The Claimant subsequently arrested another vessel, named the POLA DEVORA, in Gibraltar in July 2020, and lodged a claim form at that time in the Supreme Court of Gibraltar (“the Gibraltar proceedings”). The Claimant alleged that the Defendant was the beneficial owner of the POLA DEVOTA; however, the Defendant asserted that it was merely the time charterer. Although the Claimant released the vessel, they did not concede that the Defendant was not the beneficial owner, nor that there was any wrongful arrest.

The Claimant intended to apply for a stay of the Gibraltar proceedings under s.19 of the Civil Jurisdiction and Judgment Act 1993, and to apply that the vessel should remain detained/that adequate security should be provided, whilst the dispute was ongoing. The Defendant filed an acknowledgment of service in the Gibraltar proceedings, contesting jurisdiction. In August 2020, the Claimant brought proceedings in England and Wales (“the English proceedings”). In October 2020, Pola Rise OOO entered an acknowledgment of service in the Gibraltar proceedings, although the proceedings remained stayed, stating they intended to defend the claim.

The Defendant filed and served its Defence and Counterclaim in the English proceedings, advancing a number of counterclaims, some of which fell within the exclusive jurisdiction clause. However, some counterclaims related to the Defendant’s losses allegedly suffered as a result of the wrongful arrest of the POLA DEVORA (“the tort claims”), which were advanced under English law. The Claimant first indicated in its Reply and Defence to Counterclaim that they intended to contest jurisdiction in respect of the tort claims.

Both parties agreed that matters of jurisdiction between England and Gibraltar were governed by the Brussels Convention 1968, by reason of the Civil Jurisdiction and Judgments Act 1982 (Gibraltar) Order 1997, which applied Schedule 1 to the Civil Jurisdiction and Judgments Act 1982 as if England and Gibraltar had been separate contracting states to the 1968 Convention. The issues for the court to determine were therefore as follows:

  • Did the tort claims fall within the scope of the exclusive jurisdiction clause in the Charterparty, i.e. were they claims arising out of or in connection with the Charterparty?
    • If so, Article 17 of the 1968 Convention would apply (it is pertinent to note that the Defendant was domiciled in Cyprus, which is a contracting state) and jurisdiction would be made out.
  • If the claims did not come within the scope of the exclusive jurisdiction clause, should the court assume jurisdiction on some other basis?
  • If the court did have jurisdiction, should it nonetheless decline jurisdiction in favour of the Supreme court of Gibraltar, for example under Article 21/22 of the 1968 Convention?

Judgment

The application came before Patricia Robertson QC, who sat as a Deputy Judge of the High Court. The judge dismissed the Claimant’s application.

The judge referred to the case of Fiona Trust v Privalov [2008] 1 Lloyd’s Rep 254, in which the House of Lords laid down the principles to be applied in construing exclusive jurisdiction clauses. The Court noted that it should start from the assumption that the parties are “likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal”. The judge considered that the language of “in connection with” was naturally to be read as being wider that “arising under”. As such, the judge’s view was that a tort claim may be said to arise “in connection with” the charter not only where there were parallel claims in tort and contract, but also where the claim arose solely in tort but was, in a meaningful sense, causatively connected with the relationship created by the charter and the rights and obligations arising therefrom. In this case, there was such a connection, which was established by the Claimant specifically taking steps to secure its claims under the charter. It was reasonably foreseeable that the parties might, in the event of a dispute, take steps in other jurisdictions to enforce their rights and obligations under the charter.

The judge therefore concluded that where there was an issue between the parties as to whether damages were recoverable for an alleged wrongful arrest made in seeking security for claims under the charter, which was a claim “in connection with” the charter. As such, the court had jurisdiction pursuant to Article 17 of the 1968 Convention. In addition, although the English courts were the second courts seized, the judge noted that the Defendant had not chosen to advance its claims in Gibraltar. The judge further considered that it was appropriate to refuse to decline jurisdiction or stay the tort claims. The judge specifically considered that the risk of mutually irreconcilable judgments was low.

Conclusion

This is an interesting decision, highlighting the importance of the drafting of exclusive jurisdiction clauses and the words used within them. It emphasises that words such as “in connection with” will be construed far more broadly by the Courts than “arising out of”. Consequently, as in this case, claims for wrongful arrest in a foreign jurisdiction can be seen to fall within the scope of an English jurisdiction clause.

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…

British Airways’ lawyers have had an industrious week, first settling the group data breach claim against the airline, and then, on Friday, looking on as an interested party in the judicial review brought by the Manchester Airport Group in relation to the publication of the data underpinning the traffic light system for international travel. The High Court did not give MAG an easy time of it, perhaps prompting BA’s representatives to reflect smugly on the wisdom of reaching a confidential settlement in what is believed to be the largest ever group data breach claim – to date. It is now completely clear that this is only one of many behemoth group claims arising out of the data protection provisions which have been so unpopular with businesses ever since they were introduced; happily we at 1CL have the requisite expertise to deal with them, and, as ever, stand ready to serve.

Written by or involving: Dominique Smith, Thomas Yarrow

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