The Weekly Roundup: The Sunshine Edition

News | Mon 23rd May, 2022

The team are in sunny mood this week; not only are we looking forward to an enjoyable and educational webinar on cross border claims, featuring Sarah Prager and Andrew Spencer, on Thursday, we spent the weekend basking in sunshine and in the glow of a Harlequins victory due in no small part to the brilliance of Marcus Smith (the player, not the judge, although come to think of it they’ve never been seen together). In other news, the Commercial Court (in H C Trading Malta Limited v K I (International) Limited [2022] 5 WLUK 183) has confirmed that in relying on the ‘anchor Defendant’ jurisdiction provided for in CPR PD 6B, para.3.1(3), as long as there was a real issue to be tried between the Claimant and First Defendant at the date the order was made for service out of the jurisdiction, it was irrelevant that the First Defendant no longer intended to defend the claim by the time jurisdiction came to be determined. The Second Defendant had provided cheques as security for the first defendant’s liabilities under international sale contracts subject to English law and jurisdiction and, although the cheques had been issued, presented and dishonoured in its state of domicile, Singapore, in all the circumstances England was the proper place in which to bring the claim.

HM Senior Coroner for South London v HM Assistant Coroner for South London [2022] 5 WLUK 22

Facts

B had a significant medical history of asthma, being overweight and diabetes. The day before his death, he had drunk beer in the afternoon and wine with his evening meal. In the night, he woke up and went to the bathroom where he fell asleep. At about 4.50am his wife woke up, and found him unresponsive in the bathroom. She called for an ambulance, but he was pronounced dead at the scene.

The post-mortem report concluded that death was due to hypertensive heart disease and acute alcohol toxicity. While the alcohol level was below that which was associated directly with fatality; his underlying natural disease had made him more susceptible to the effects of alcohol.

The assistant coroner’s conclusion and the subsequent application

The assistant coroner held an inquest and recorded her conclusion that the death was “alcohol related”. The claimant was authorised by the Attorney-General to make an application under S. 13(1)(b) of the Coroners Act 1988 (“the 1988 Act”) to quash the conclusion on the basis that it was inconsistent with the unchallenged medical evidence and that it was necessary or desirable for another investigation to be held.

Judgment

The words “or otherwise” in S. 13(1)(b) of the 1988 Act provided that the court could intervene where it was in the interests of justice or on conventional public law unreasonableness grounds. A failure to take into account relevant evidence which pointed to a specific conclusion could support a submission that the ultimate verdict was unreasonable.

It was accepted that the assistant coroner’s conclusion was unreasonable, because it failed to properly reflect the unchallenged medical evidence. It was in the interests of justice for the conclusion to be quashed. It was highly likely that on reconsideration a different conclusion would be reached and would reverse the adverse impact that the original conclusion had on the Deceased’s family. However, the court had no power under S. 13 to amend the coroner’s conclusion or substitute a new conclusion. The correct order was for the court to quash the coroner’s conclusion and remit the matter for redetermination.

Commentary

There are two points in this case which are important for travel practitioners. First, there is a high bar to challenging inquests under S. 13 of the 1988 Act, where no new factors have been discovered. Indeed, the High Court’s reference to Wednesbury unreasonableness indicates that any decision quashed under this ground must be truly irrational. Practitioners ought to think deeply as to whether such a challenge is feasible.

Second, practitioners ought to be aware of the difference between challenges under S. 13 of the 1988 Act and judicial reviews of coronial verdicts. It is only under the latter that the courts can quash a verdict and remit the matter to a coroner with a direction to enter a new verdict in accordance with the decision of the court. Accordingly, while challenging coronal verdicts by judicial review is harder, the courts have wider and more flexible powers to avoid a further inquest.

About the Author

Anirudh Mandagere has a broad practice across all areas of chambers’ specialisms, acting for both claimants and defendants, and is an enthusiastic and valued member of the travel team. Before joining 1CL Anirudh worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics.

The Court of Justice of the European Union confirms that national procedural rules cannot operate to prevent the consideration of whether contract terms are unfair

The CJEU has handed down four preliminary rulings relating to whether the operation of procedural principles of national law were compatible with the requirements of Council Directive 93/13/EEC of 5^th April 1993 on unfair terms in consumer contracts (“the Directive”). The Court was asked about whether national procedural rules that do not allow the assessment of the fairness of contracts at the enforcement stage, including by the enforcing court of its own motion, are compatible with the Directive. It found that courts in enforcement hearings must be able to consider the fairness of terms, whether at the request of the consumer or of their own volition, if such terms had not been explicitly considered before, and without prohibitively high costs to the consumer.

Article 6(1) of the Directive provides:

“Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.”

Article 7(1) of Directive states:

“Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.”

The Court found that, under the Directive, the national court is required to assess whether a contractual term falling within the scope of the Directive is unfair. Member States are required to ensure that the domestic courts are able to provide effective judicial protection from unfair terms. In three of the rulings, the Court highlighted that while finality of judicial decision making and time limits on appeals is important for stability, the point of the Directive was to correct the power imbalance between consumers and companies by making unfair terms not binding on consumers. It also found that there should not be practical deterrents or barriers to consumers attempting to challenge the fairness of terms during enforcement proceedings.

Unicaja Banco (Case C-869/19)

In Unicaja Banco, the Court was asked to consider a domestic rule that, where an aspect of an operative judgment is not challenged by any of the parties in an appeal, the appeal court cannot deprive that aspect of the judgment of its effects or alter it. The court reaffirmed that EU law precludes a domestic law that temporally limits the restitutory effects of amounts wrongly paid under an unfair term after the delivery. It also found that a national court hearing an appeal cannot be prevented from considering the fairness of a term under the Directive on the basis that the issue had not been raised by the consumer.

Ibercaja Banco (Case C-600/19)

In Ibercaja Banco, a the Court was asked to consider the domestic rule that the court hearing enforcement proceedings was not allowed to assess the fairness of the terms, either at the request of the consumer or on its own motion, because the previous court had examined the contract. However, the national court had done so without express reference to any examination of the terms in question. The Court found that EU law precludes a law which neither allows a consumer to raise, nor a subsequent court to consider of its own motion, whether terms of a contract are unfair, on the basis that a negative assessment has already been done where the previous judicial consideration does not contain any reasons, does not comment on the existence of an examination of the fairness of the terms, and does not mention that the terms could not be challenged unless an objection were lodged within a specified period.

The Court did note that, where enforcement proceedings are complete and ownership rights have been transferred to a third party, a consumer cannot rely on any unfair terms to get an annulment of the facts transferring ownership. However, in such a situation, a consumer must be able to rely on the unfairness of the terms in subsequent proceedings against the original party to the contract in seeking compensation.

SPV Project 1503 and Banco di Desio e della Brianza and Others (Joined Cases C-693/19 and C-831/19)

In the joined cases of SPV Project 1503 and Banco di Desio e della Brianza and Others, the Court considered a national rule that prevented a court in enforcement proceedings based on enforceable instruments which have acquired the force of res judicata from considering the fairness of terms in that contract where an objection to them has not been raised by a consumer. It held such a rule was precluded by EU law, as it rendered meaningless the national court’s obligation to examine the fairness of the terms of its own motion.

Impuls Leasing România (Case C-725/19)

In the case of Impuls Leasing România, the Court reviewed national legislation that prevented a court considering enforcement proceedings from assessing whether the terms of the contract were unfair on the basis that there is a separate action under the domestic law in which the fairness of terms may be reviewed. There was a provision that allowed the court dealing with enforcement proceedings to suspend those proceedings, but any consumer seeking such a suspension was required to pay a security calculated on the basis of the value of the action. The Court found that, since it is unlikely that a consumer would have the financial resources necessary to provide the security required, such costs should not be allowed to dissuade a consumer from bringing court proceedings to assess the fairness of a contract.

About the Author

Kerry Nicholson takes instructions across all of chambers’ core areas. Prior to joining 1CL Kerry worked for the Government Legal Department working across a variety of departments in both litigation and advisory roles. She now enjoys working within the team on travel related and other claims.

…And Finally…

Regular readers will already be aware of our fascination with the Scottish courts and their magnificent use of legal language. It will come as no surprise, therefore, to learn that we were agog to read the decision in Mather v (1) Easyjet Airline Company Limited, (2) DRK Hamburg Mediservice [2022] CSOH 40, in which Lord Uist gave the Opinion of the Outer House, Court of Session.

The pursuer, who is paraplegic, had booked an Easyjet flight from Edinburgh to Hamburg, notifying the airline when he did so of his need for special assistance in embarking and disembarking the aircraft. The airline’s standard terms provided that:

“The provision of assistance through the airport, onto the aircraft, off the aircraft and through the arrivals process at the destination is the responsibility of the relevant Airport Authority.”

The flight duly arrived at Hamburg and Mr Mather was deplaned using an aisle wheelchair and then an airport wheelchair. One of the assistance personnel pushed the wheelchair ‘quite briskly’ between 10 and 20 metres up the ramp of the air bridge towards the terminal building, whereupon the wheelchair stopped very abruptly and Mr Mather fell from it, landing on his legs on the marble floor just inside the threshold of the airport building and sustaining compound fractures to both legs below knee level as a result. It was subsequently established that the accident was caused by the front wheels of the wheelchair hitting the raised edge at the point where the air bridge joined the airport building, formed by a narrow metal ramp at the join between the higher and lower floor levels.

Mr Mather sued Easyjet on the basis that the accident had occurred during the course of disembarkation within the meaning of the Montreal Convention. The airline contended that its liability was limited under the Convention because it had not been at fault for the accident; the assistance personnel were employed by DRK to carry out duties owed by the airport. In the alternative it sought a contribution or indemnity from DRK under the Civil Liability (Contribution) Act 1978. DRK averred that its personnel had been acting as agents for the airline in undertaking its duty to keep passengers safe whilst they disembarked, but that in any event that the accident had been caused by negligence on the part of the airport, for which it was not liable. It denied that the Act was applicable to the proceedings, since its contribution liability was governed by German law as the law of the tort.

The court undertook a review of the relevant caselaw under the Convention and held that ‘the test for determining whether a part was the carrier or an agent of the carrier was initially taken to be whether the task the party was undertaking was one which the carrier would otherwise be required by law to provide but this has developed into whether the task was executed in furtherance of the contract of carriage.’ Applying this test in this case DRK was acting as Easyjet’s agent even though there was no contractual relationship between the two companies, because it was disembarking the passenger from the aircraft at the time of the accident.

“What matters is that the services provided to easyJet were in furtherance of the contract of carriage by assisting Mr Mather to disembark the flight. They were also, in terms of the earlier test, services which easyJet would themselves have been required by law to provide had DRK not provided them as they were part of the process of disembarkation.”

The judge found as a matter of fact that the accident was due to the negligence of DRK’s staff in rushing; therefore Easyjet was liable to Mr Mather in an unlimited amount under the Convention.

As for the position as between Easyjet and DRK, the relevant law was that of Germany and not that of England and Wales, because DRK could not be bound by the choice of jurisdiction clause contained in Easyjet’s standard terms, and because the relevant tortious applicable law was that of Germany. Under German law Easyjet’s claim against DRK was time-barred, and the position was therefore that although it was liable for the acts and omissions of DRK’s employees, it could not claim a contribution or indemnity from their employer.

It would seem, then, that Scottish law is different from that of England and Wales insofar as contribution and indemnity is concerned; had the claim been pursued within this jurisdiction, the Act would have applied whatever the tortious or contractual applicable law, following the decision in Roberts v The Soldiers, Sailors, Airmen and Families Association [2021] 2 WLR 87 (not cited in the Scottish case, and in respect of which the appeal remains outstanding).

It is difficult not to experience some sympathy both for Mr Mather, but also for Easyjet, whom everyone agreed was not responsible for the accident itself, but who will now end up picking up the bill, without any recourse either to the tortfeasor, his employer, or the airport which contracted its services. It is also interesting to note the different result in the Scottish and English jurisdictions in respect of contribution and indemnity.