21
Sep
20
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Kylie Edition

We were sorry to learn this week that On the Beach and Loveholidays, the two largest online travel agents in the UK and third and fourth largest ATOL holders, have resigned as members of ABTA. We have mentioned in previous briefings that they had clashed over whether or not refunds should be given where the FCO advises against travel to a destination, but the airline does not cancel flights to that destination. FCO guidance is not legally binding, and therefore the agents’ argument that refunds need not necessarily be given is legally correct; but as ABTA has pointed out, rebuilding consumer confidence in the industry is a priority at the moment, and providing refunds is a key component of that strategy. We can only hope that our friends at ABTA and at OTB and Loveholidays will decide in the end that it’s Better The Devil You Know.

 

Come Into My World (via reasonably proportionate border checks)

In a move which reflects the dire straits of the European travel sector, a vast number of travel and tourism bodies (including the European Travel Commission) have written an open letter to the European Commission President Ursula von der Leyen calling for quarantine restrictions to be replaced with an EU Testing Protocol. They say that traveller confidence and consumer demand have shallowed owing to “insufficiently coordinated border restrictions” as well as “inconsistent and constantly changing national approaches”. They pray in aid the principle of freedom of movement, and highlight the fact that the sector provides livelihoods for more than 27 million Europeans. Rather compellingly they also point to the European Centre for Disease Prevention and Control, which formally advises states against extreme travel restrictions which are neither risk-based nor proven effective where community transmission is already present.

One fears the plea will fall on deaf ears, as the pressure on national governments to be seen to be ‘doing something’ is monumental, and the act of closing borders is a powerful and visible political gesture (albeit possibly not very effective in terms of supressing infections). Moreover the timing is inadvertently terrible, as many countries (including the UK) just begin to enter the dreaded ‘second wave’ with all the associated chaos and partial/full re-instigation of domestic restrictions. From a presentational angle, it would be strange if international travel was liberated and free-flowing, but families could not come together on Christmas Day in groups exceeding six.

About the Author

One of the more junior members of the team, Richard Collier was called to the Bar in 2016. Before that, he had worked as a Judicial Assistant to Lord Justice Jackson in the Court of Appeal. He is now instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims.

 

 

I Believe in You, FAA and Boeing (but maybe I shouldn’t have been so trusting)

A congressional investigation has recently blamed a “culture of concealment” at Boeing for the two Boeing 737 fatal accidents in 2019. The investigation further found the US regulatory system to be fundamentally flawed.

A number of claims have already been issued in Illinois, and liability is likely to amount to billions of dollars, but there remains significant uncertainty about the extent of Boeing’s liability generally, and about the jurisdiction and applicable law to any claims brought by the victims’ relatives.

In many cases, jurisdiction may be governed by contractual terms within individual contracts for carriage, but it seems unlikely that any action will be taking place in England and Wales. Whilst the courts of England and Wales will automatically have jurisdiction where a defendant can be served with the claim form while in England, claimants would have difficulty showing that the English courts were the most appropriate forum, particularly given that litigation is already up and running in the courts of Illinois. In any case, given the questions that have been raised over the conduct of senior executives at Boeing and the FAA, it seems that the optimal forum and applicable law for claimants would be that of the US states, given the scope for enormous punitive damages and the benefits of jury participation.

About the Author

Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.

 

 

Tears on My Pillow: When sorrows come, they come not single spies, but in battalions …

If it’s not one damn thing it’s another; with the travel industry having been beset by Covid-19, and before that an increasing concern about the environmental effects of air travel, it really could do without something else to worry about. However, proving the adage that trouble comes in threes, it was reported earlier this week that a Which? Investigation had revealed that the websites of several travel firms were potentially putting their customers’ data at risk.

Problems were identified on the websites of easyjet, British Airways, Lastminute.com and American Airlines. The potential scale of the problem is illustrated by two data breaches from Marriott (also a firm shown to have problems in the Which? Survey) that occurred in 2018 and 2020 that affected the data of 339 million and 5.2 million customers respectively.

The problem of data security for firms is not simply a matter of losing customer confidence; breaches can have significant financial repercussions. Earlier this year the ICO fined Cathay Pacific Airways Ltd £500,000 for failing to secure their customers’ personal data.

Such fines are the tip of the iceberg however. The parenting club Bounty was fined £400,000 in 2019 for sharing their customers data with various marketing agencies. Between June 2017 and April 2018 Bounty shared approximately 34.4 million records of 14 million people. There are now several law firms contacting the public seeking to bring a class action against Bounty. Given that damages can be awarded for breaches of data protection law without having to prove pecuniary loss or indeed distress, the pool of Claimants could be vast.

Unless and until the travel industry takes data security seriously, it could be facing litigation on a terrifying scale.

About the Author

Ian Clarke was called in 2005. He specialises in professional negligence claims, but also undertakes cross border claims, with a particular emphasis on data protection. The Legal 500 rates him as being ‘very adept at picking up the detail of document-heavy matters very quickly’ and an ‘accessible and level-headed junior’.

 

 

Je Ne Sais Pas Pourquoi (unregulated providers of legal services should not be subject to the same regulation as the rest of us)

There are some signs that the Ministry of Justice is finally considering partially regulating the currently unregulated providers of legal services. The proposal is to compile a register of such providers, with a safety net of redress in the event the legal services are not properly supplied. The idea was most recently recommended by Professor Stephen Mayson (not our Stephen Mason, of travlaw fame; another one) in an independent review in June. Professor Mayson discovered, to no one’s surprise, that the advice seeking public didn’t know one end of a regulated lawyer from another, with the effect that clients did not fully understand the potential pitfalls of seeking the assistance of an unregulated provider. The review therefore proposed that a register should be set up so as to bring some kind of organisation to the current chaos; but also, in the long term, envisaged a radical alteration of legal regulation. Professor Mayson recommends regulation of services rather than lawyers, so that all providers, whether legally qualified or not, would be registered and regulated by a single regulator, much as the Professional Standards Authority accredits a number of organisations registering unregulated healthcare practitioners. This, he says,

“…would give all consumers of legal services the confidence to instruct providers secure in the knowledge that the incompetent, the shoddy, the dabblers and the charlatans could be rooted out and dealt with, and that sector-specific redress would be available…”

We at 1CL would be only too delighted if the legal sector could rid itself of incompetent shoddy dabblers and charlatans, but fear the resulting shortage of lawyers might leave the rest of us severely overworked; but Professor Mayson and the Ministry of Justice appear to agree that the longer term reform of legal regulation will have to wait until after the current pandemic has receded. We suspect the MoJ has quite enough on its plate as it is, and will be so busy dealing with the court backlog for some considerable time to come that further legal regulation will be placed on the government back burner indefinitely.

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. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury.

 

…And Finally…

Where do you fly to, when you can’t fly anywhere? Quantas’ Flight to Nowhere concept has been a huge success, with its seven hour round trip to and from Sydney selling out within ten minutes. The trip takes in aerial views of Uluru and the Great Barrier Reef, with the aircraft flying in figures of eight over the Australian landmarks, so as to enable passengers on both sides of the plane to get a good view of them. The airline reckons it’s the fastest selling flight in its history, which at between £445 and £2,145 a ticket is quite impressive stuff. We wonder how similar UK-based flights would work: a three hour round trip from Luton to Aberdeen could feature York Minster, the Angel of the North and Balmoral, with passengers being treated to bottles of Newcastle Brown Ale instead of the Kylie rosé we feel sure Quantas passengers are guzzling en route to their destination (and place of departure). But what would Kylie herself make of it all? We think she’d be Carried Away.

Regular attendees of the (unmissable) 1CL Thursday Webinars will already be aware that this week’s webinar features the Dream Team, comprising Sarah Prager and Andrew Spencer, speaking on the Athens Convention. Interest in what is – let’s face it – quite a niche area has been gratifyingly enthusiastic, with a number of attendees already having raised questions which have our presenters Spinning Around searching for answers.

The link to sign up to the webinar is here:

https://us02web.zoom.us/webinar/register/WN_cSFD_yYVR5KhyiYp3_LjEw

As if that were not enough, the following week will see Sarah Prager and Henk Soede discussing claims under the Montreal Convention. The link to sign up to this webinar is here:

https://us02web.zoom.us/webinar/register/WN_HgrtJn1HRB-f7t-yhed35g

 

Two Thursday Webinars in a row on the international conventions? We do these things Especially For You.

Written by or involving: Sarah Prager, Ian Clarke, Conor Kennedy, Richard Collier

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