The Weekly Roundup: the Sporting Edition

Articles | Mon 13th Sep, 2021

Regular readers will be aware of 1CL’s prowess with bat and ball, and it was with no small degree of disappointment that we greeted the news that the fifth England-India Test had been cancelled at the last moment (will there be claims for loss of enjoyment and consequential losses, we wonder?). But barely had we digested that than our thoughts turned to tennis, and thence to the start of the rugby season (another opportunity for loss of enjoyment, we’ll wager, although it was nice to see Marcus Smith J get his Lions call-up earlier in the year). Elsewhere, the Ministry of Justice announced the extension of the fixed costs regime to claims under £25,000, and the Maritime and Coastguard Agency released a Guidance Note on mitigating the effects of shocks and impacts on small vessels (MGN 436 Amendment 2 whole body vibration guidance on mitigating against the effects of shocks and impacts on small vessels (nextgen-marine.com)). The former development will be of interest to all practitioners, indicating as it does a willingness on the part of the Powers That Be to extend fixed costs in accordance with Jackson LJ’s recommendations (albeit we are yet to see the regime extended to all claims for less than £250,000). The latter is of importance to practitioners involved in litigation arising from the not insubstantial number of cases arising from the use of RIBs and other small vessels, some of which involve catastrophic injury.

Criminal Penalties for Covid-19 Offences

This article considers the potential criminal penalties which may be imposed on persons entering England in breach of Coronavirus related restrictions. This article:

• Applies only to acts of omissions taking place on or after 4am on 17^th May 2021, the significance of which being described below.
• Does not apply to entry to other parts of the UK or offences committed prior to this date, though, in practice, the penalty scheme is extremely similar.
• Does not apply to potential offences committed abroad, or on leaving the UK, as the traveller would then be subject to the laws of the destination country.
• Applies to offences which might potentially be committed by ordinary travellers. There are other offences which might potentially be committed by an operator, such as an airline.

Lastly, this article does not attempt to describe all circumstances in which a traveller may be made subject to a restriction; such an attempt would be out of date before the ink is dry. The current rules for the time being are described online[1].

The current regime is set out under The Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021[2] (“the Regulations”).

As alluded to above, the Regulations replaced the Coronavirus: Health Protection (Coronavirus, International Travel) (England) Regulations 2020[3] at 4am on 17^th May 2021, so offences committed before that time will be subject to the earlier regime. Essentially this change reflected the resumption of leisure travel abroad from the UK.

Reg.25[4] provides that the Regulations will expire at the end of 16^th May 2022 so the Regulations will either cease to apply after this date or be replaced.

Reg.19[5] creates a total of thirteen offences likely to be of relevance to an ordinary traveller in force during the COVID-19 pandemic. The first ten offences are committed by a person doing any of the following without reasonable excuse (so are not offences of strict liability):

• Failing to provide information required by reg.3 (e.g. not completing a traveller locator form when required to do so).
• Not having a negative test when required to have one by reg.4, i.e. entering England without having a negative test result of the kind required prior to travelling.
• Not booking tests on return as required by reg.6 (i.e. the day 2, and, if applicable, day 8 tests on arrival).
• Failing to undertake workforce tests when required to do so by reg.7 (i.e. certain transport related professions, such as pilots, Channel Tunnel workers, and ferry operators are exempt from self-isolation but must take additional “workforce tests”, the offence is committed if they do not).
• Failing to comply with the testing requirements as an offshore installation worker contrary to reg.8 (e.g. oil rig workers are subject to similar, but different, requirements to transport professionals, the offence is committed by non-compliance).
• Failing to comply with an enforcement order pertaining to self-isolation contrary to reg.11; e.g. failing to return to a place of self-isolation when directed to do so by a policeman; failing to disclose a passport to demonstrate the time of arrival in the UK. A further (strict liability) offence is committed by leaving the place of self-isolation, see below.
• Failing to comply with an enforcement order under reg.11(2) (e.g. to remain in a particular area of an airport prior to transportation to a quarantine hotel).
• Failing to comply with a requirement relating to a managed self-isolation package contrary to sch.11 para.5, e.g. leaving a quarantine hotel in breach of the regulations following arrival from a red list country.
• Failing to comply with a requirement relating to a responsible adult contrary to sch.11 para.16(aa); e.g. a responsible adult failing to remain with a child arrival in quarantine.
• Failure by an employer to facilitate workforce tests contrary to sch.9 para.4.

There are then two other strict liability offences to which the defence of reasonable excuse does not apply:

• Contravention of a requirement to self-isolate contrary to reg.9.
• Contravention of any other requirements relating to red-list countries set out under reg.11.

Reg.19(2) creates an absolute defence of reasonable belief in certain circumstances, specifically where:

• The traveller reasonably believed that they had taken a negative test where they did not (e.g. they were falsely told that the test result was negative).
• The traveller took a test which was of a required type, but reasonably believed that it was of a required type.
• The traveller reasonably believes that information given in relation to the intended port of entry is accurate but it was not (e.g. the aircraft was diverted on arrival).

Regs.19(3)-(5) describe potential reasonable excuses for the purposes of the first three offences described above. These are likely to apply only under fairly extreme circumstances- e.g. a person travelled from a country where a test was either not available at all or not reasonably practicable (reg.19(3)(f)); a person cannot reasonably practicably take a relevant test due to disability (reg.19(4)(a)); a test was cancelled for reasons beyond the passengers control (reg.19(5)(c)). These are not exhaustive but do indicate a high threshold for such an excuse to apply.

Reg.19(6) creates a thirteenth offence of intentionally or recklessly providing false information, this might, for example, include a deliberate falsehood included on a passenger locator form.

Regs.19(7)-(13A) set out a separate system of criminal penalties. In broad terms, an operator (such as an airline) will face fines if it does not comply with a range of provisions set out within the Regulations for the management of coronavirus. Failure to comply is likely to attract a fine limited to £2,500 (reg.19(15)).

Reg.19(14) creates a fourteenth potential offence for the ordinary traveller, the obstruction of any person carrying out a duty under the regulations- potentially a very broad offence but presumably this would apply to, e.g., assaulting a person conveying the passenger to a quarantine hotel.

In general, reg.20[6] provides that these offences will be dealt with by way of fixed penalty notices. A full description of all possible fines would be beyond the scope of this article as the amount of that fixed penalty notice is described in sch.14[7] and varies tremendously. However, illustratively:

• Failing to have a negative test when required to do so incurs a fixed penalty fine of £500 on the first offence, £1,000 on the second, £2,000 on the third, and £4,000 on the fourth and every subsequent occasion.
• Absconding from a quarantine hotel, by contrast, is likely to attract a fine of £10,000 for the first offence.
• An offence under reg.19(6)- intentionally or recklessly providing false information- varies depending on the nature of the information. Essentially, if the passenger falsely states that they were not in a red list country, hoping to avoid managed quarantine, a £10,000 fine is imposed for the first offence. For less important false information, the same system of fixed penalties applies as for failing to have a negative test.

However, in principle, prosecution rather than a fixed penalty notice remains an option under reg.21[8]. Such prosecutions are on a summary basis only and must be initiated within six months of there being sufficient evidence to prosecute or three years of the offence, as described in s.64A Public Health (Control of Disease) Act 1984. In short, s.127(1) Magistrates Court Act 1980 does not apply. In principle, an unlimited fine can be imposed on conviction under reg.19(16).

The CPS provides guidance that prosecution will be considered where it is in the public interest to do so[9]. There is a strong indication that this will be considered where there is forgery of, e.g., a test result, possibly in conjunction with proceedings under the Fraud Act 2006. It might also apply in the case of a person with a high public profile (e.g. if breached by a government minister) or in a case of a co-ordinated assault on the quarantine system.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus.

Vicarious Liability Revisited in a Sporting Context

In Blackpool Football Club Limited v DSN [2021] EWCA Civ 1352 the Court of Appeal examined recent developments on the law of vicarious liability in relation to a children’s football tour abroad.

The Facts

In 1987 an individual named Frank Roper organised a footballing tour for young boys to New Zealand. Frank Roper was a serial sex offender. He had convictions for indecent assaults in 1960, 1961, 1965, and 1984. In the 1980s, he also played a role as a ‘scout’ in which he would introduce promising young footballers to Blackpool Football Club (“the Club”). On the 1987 tour, he sexually assaulted one of the boys who had gone on the tour. Years later, the boy issued a claim against the Club for damages on the basis that they were vicariously liable for Roper’s acts.

The context of the claim was that Frank Roper’s scouting had brought the Club considerable financial reward. In 1983, the Club had sold David Bardsley to Watford for £150,000. In 1987, it sold Paul Stewart to Manchester City for £200,000. Both players were introduced to the Club by Frank Roper. The Chairman and Manager of the Club (at the material times) agreed that these two sales had “saved the Club” financially.

Apparently out of gratitude for Roper’s work, the Club made a financial contribution of £500 to the tour. Frank Roper carried the rest of the cost, estimated to be in the region of £25,000. Evidence at trial suggested that the tour had in fact been a profitable commercial enterprise by which Mr Roper had purchased counterfeit sports goods whilst returning through Thailand, which he then sold through his sports goods shops in the England.

At first instance Griffiths J held the Club to be vicariously liable for the abuse committed by Roper. The Club appealed on the basis that:

1. the judge had been wrong to hold that Frank Roper was at any material time in a relationship with the Club that could give rise to vicarious liability; and
2. the judge was wrong to hold that there was a sufficient connection between the assault, and any relationship between Roper and the Club.

Giving judgment in the Court of Appeal, Stuart-Smith LJ held that the findings of fact “did not justify a finding that the relationship between the Club and Roper was one that can be properly treated as akin to employment”. Whilst Roper’s association with the Club did confer important benefits on the Club, such that he was treated with deference and welcomed by the Club, “none of the normal incidents of a relationship of employment were otherwise present”. There was “no evidence of any control or direction of what he should do”. Roper’s activity was not exclusively for the Club, and the evidence was that some of the boys he scouted were trying to join other clubs.

Whilst the fact that Roper was an unpaid volunteer was not determinative, the fact that he planned, exclusively ran, administered, and financed the trip, showed that there was “a complete absence even of a vestigial degree of control” on the part of the Club. There was certainly no relationship that was “akin to employment”, in contrast with the Christian Brothers case. The appeal was allowed on both grounds.

Analysis

Sports trips abroad can involve require extensive levels of organisation. As this case demonstrates, the details of control, financing, and administration will be key to determining responsibility for wrongdoing on such trips. As Stuart-Smith LJ observed, the process of determining vicarious liability is “not susceptible to a ‘tick-box’ approach”. It is an area where it is particularly true that each case will turn on its own facts.

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.

…And Finally…

We were intrigued to see that the Austrian Supreme Court has referred the following questions on the interpretation of the Montreal Convention to the Court of Justice of the European Union:

1) Is primary medical care on board an aircraft following an accident within the meaning of Article 17(1) of the Montreal Convention, which leads to a further bodily injury to the passenger which is to be distinguished from the actual consequences of the accident, to be regarded together with the triggering event as a single accident?

2) If question 1 is answered in the negative:

Does Article 29 of that Convention preclude a claim for compensation for damage caused by the primary medical care if that claim is brought within the limitation period under national law but already outside the limitation period under Article 35 of the Convention?

The plaintiff had been injured on a flight from Tel Aviv to Vienna by hot coffee poured over him. Due to insufficient primary medical care, he suffered further injuries. The plaintiff’s claim for compensation was only filed after the expiry of the limitation period under Article 35 of the Montreal Convention, and accordingly the domestic courts had dismissed the claim as time-barred.

The domestic courts’ decisions contrast with our own domestic caselaw, notably Ford v Malaysian Airline Systems [2013] 9 WLUK 617, and although the decision of the CJEU will not be binding, it will of course be of persuasive authority on the subject. We await the outcome with interest.

[1] https://www.gov.uk/guidance/red-amber-and-green-list-rules-for-entering-england

[2] https://www.legislation.gov.uk/uksi/2021/582/contents

[3]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/933559/health-protection-_coronavirus-international-travel_-_england_-_amendment_-regulations-2020.pdf

[4] https://www.legislation.gov.uk/uksi/2021/582/regulation/25

[5] https://www.legislation.gov.uk/uksi/2021/582/regulation/19

[6] https://www.legislation.gov.uk/uksi/2021/582/regulation/20

[7] https://www.legislation.gov.uk/uksi/2021/582/schedule/14

[8] https://www.legislation.gov.uk/uksi/2021/582/regulation/21

[9] https://www.cps.gov.uk/legal-guidance/coronavirus-health-protection-coronavirus-international-travel-and-operator