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Articles | Mon 19th Oct, 2020
As regular readers know, we at 1CL like nothing better of an evening than to huddle round the chambers wireless listening to the government’s pronouncements on the issues of the day. For the last few months, admittedly, the news has been dominated by the ongoing Covid-19 pandemic, but in recent times we have detected a shift in focus away from one upheaval and towards another: Brexit. On 15th October, for example, the government published its response to its consultation on the departure from retained EU caselaw by UK courts and tribunals. In a nutshell, it asked for views on whether the caselaw of the Court of Justice of the European Union should continue to hold value in respect of those provisions of European law retained after 31st December. Under the EU (Withdrawal) Act 2018 Eurolaws will continue to be interpreted in line with the decisions of the CJEU, but the Supreme Court has the power to depart from retained EU caselaw. The consultation asked whether that power should be extended to lower courts. Most respondents felt that it should not; but the most senior judicial officers were concerned that this would lead to further backlogs and strain on the appellate system, and in the end the government has decided to extend the power to depart from CJEU caselaw to the Court of Appeal, but not to the High Court. The power will only be used, however, in those circumstances in which the Supreme Court will depart from its own decisions, and the caselaw in that regard is therefore relevant in this context. Curiously, in order to preserve the doctrine of precedent, domestic authorities will still be binding, giving rise to the theoretical possibility that the Court of Appeal might decide to depart from a decision of the CJEU, but nevertheless still be bound by a previous judgment of the Supreme Court following that CJEU decision.
We can foresee all sorts of unforeseen problems arising; we wouldn’t Wannabe sitting in the Court of Appeal in the next five or ten years.
Never Give Up on the Good Times
It isn’t often that the travel industry can point towards a piece of good news these days. However, The International Air Transport Association has recently released some data that should give heart to air carriers and the holiday sector generally.
The figures that have been released suggest that just 44 cases of Covid-19 are thought to have been associated with the fact that patients have taken a flight. To put that number into context, the figures cover the start of 2020 (prior to the introduction of mandatory face-covering and other Covid security measures) to date, in which time about 1.2 billion passengers have flown on planes; that gives an incidence of roughly one case per 27 million travellers.
Even taking into account asymptomatic infection, problems with tracing, and non-reporting of infection, it seems the likelihood of becoming infected whilst on an aeroplane are remote. This may seem counter-intuitive given the close proximity of passengers on most commercial aircraft, but it seems that the use of High Efficiency Particulate filters, sophisticated airflow systems and the seating layout provides a fair degree of protection from infection.
So, if you’re relatively safe on the plane it’s just a matter of working out where to go. Helpfully the EU has just approved a ‘traffic light’ system to coordinate the different approaches to travel restrictions between member states. Under the approved agreement the European Centre for Disease will publish a map with each region assigned a red, amber or green rating based on the last 14 days of testing data. Although the idea is to avoid states unilaterally closing their borders, however, the system does still allow for member states to set their own policies on quarantine and testing.
So, you may be safe on the plane, may be able to go to your choice of destination, but you might get stuck in a hotel room for a fortnight. Still, it’s something, I suppose.
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 serious injuries arising out of sporting accidents. 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’.
Stop (travel restrictions): Could a Judicial Review be on the Cards?
The news that air travel may not be as potent a vector for the spread of Covid-19 as was initially thought gives us pause for thought. If flying, in itself, does not give rise to a significantly increased risk of infection, and if the UK’s infection rate appears to be higher than that of most other nations, can the current restrictions on international travel sensibly be maintained?
Some sectors have already decided to challenge government measures affecting their industries. In England, the Night Time Industries Association has launched proceedings seeking judicial review of the restrictions crippling their industry, citing as the basis for their claim the fact that there is no hard evidence indicating that hospitality venues have contributed to the spread of the virus. They say that the measures, particularly those most recently imposed in relation to Tier 1 locations, are wholly disproportionate to the evidence that the virus is spread in pubs and restaurants. The government disputes this, and cites American academic studies as the foundation for its decision.
Whether or not the NTIA is successful in its application, the proceedings raise some interesting questions. Could the travel industry take similar action? Few sectors of the economy have been as hard hit, and some in the industry take the view that the government’s weekly Travel Corridor updates do more harm than good, since they wreak havoc with consumer confidence in the ability to book holidays even as much as a week ahead.
But if, say, ABTA were to initiate proceedings for judicial review of the current Travel Corridor Policy, what would the chances be of any such proceedings succeeding? Contrary to what some, lesser, publications would have you believe, overturning a government decision by way of judicial review is no easy matter, and there are very limited circumstances in which such a challenge could succeed. Clearly the government has the power to impose these restrictions, so any challenge would have to centre on unfairness in the decision-making process itself, or on the ground of irrationality. The challenger would have to show that the decision was so unreasonable that no person, acting reasonably, could have made it.
Whether or not the policy, or the way in which it has been formulated, would fall foul of either of these criteria is open to question – but the fact that air travel does not appear to hold the dangers previously thought would seem to be relevant to the decision. Interesting times.
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.
2 Become 1 (consolidated case)
Last week the Supreme Court of the United States heard argument in the consolidated cases of Ford Motor Company v Montana Eighth Judicial District Court and Ford Motor Company v Bandemer (citation pending). Both cases concern the doctrine of ‘specific personal jurisdiction’ or, more specifically, the question of when a defendant domiciled in one State (or, indeed, a foreign State) can be made to litigate in another. For UK-domiciled tour operators and other holiday businesses that sell holidays in the United States, the decision can be expected to clarify (and perhaps even amplify) their exposure to the risk of State-side litigation.
Ford Motor Company (“Ford”), the defendant in both actions, is headquartered in Michigan and incorporated in Delaware. Ford designs and manufactures cars, which it then sells to independent dealers across the world. The claims against Ford arise out of road traffic accidents allegedly caused by design defects in Ford automobiles. The accident in Montana occurred in Montana, whereas the accident in Bandemer occurred in Minnesota. In Montana, the Ford automobile was assembled in Kentucky and was sold and re-sold a number of times in different states by independent dealers, before finally being purchased from an independent dealer by the relevant person (the claimant in Montana is the estate of the deceased driver) in Montana. In Bandemer, the Ford automobile was assembled in Ontario, Canada and was sold and re-sold a number of times by independent dealers, before finally being purchased from an independent dealer by the claimant in Minnesota. The question for SCOTUS, generally speaking, is whether the claimants in both cases can deploy the doctrine of “specific personal jurisdiction” so as to force Ford to litigate in Montana and Minnesota, respectively.
The case law on personal jurisdiction in the United States distinguishes between ‘general personal jurisdiction’ and ‘specific personal jurisdiction’: see Justice Alito’s discussion in Bristol-Myers Squibb Co v Superior Court 137 S.Ct. 1773 (2017) at 5-7. To establish general personal jurisdiction against the defendant, the claimant must show that the defendant is ‘at home’ in the state concerned. In Montana and Bandemer, Ford was plainly at home in neither Montana nor Minnesota (it being incorporated in Delaware and headquartered in Michigan), so general personal jurisdiction could not be established. The claimants in Montana and Bandemer were thus required to establish specific personal jurisdiction over Ford in their respective State courts.
The principal enquiry under the doctrine of specific personal jurisdiction is whether the specific claim “arises out of or relates to the defendant’s contacts with the forum”: see Goodyear Dunlop Tires Operations v Brown, 564 S.Ct (2011) at 919. In addition, the court will look to other factors to determine whether enforcing personal jurisdiction would be reasonable, such as the burden on the defendant; the forum State’s interest in adjudicating the dispute; the claimant’s interest in obtaining effective relief; and the interstate judicial system’s interest in ensuring the most efficient resolution of disputes: see World-Wide Volkswagen v Woodson, 444 S. Ct (1980) at 292-95. At a more specific level, the question before SCOTUS is the interpretation of the “relatedness” limb.
Ford argue that “arises out of” and “relates to” are conceptually one and the same in that they define a specific and stringent requirement of causation between the defendant’s “contacts” and the case. On the facts in Montana and Brandemer, Ford argue, this causal requirement is not made out: the business activities that caused the accident – i.e., assembling and manufacturing the claimants’ specific cars and then shipping those cars into the state – were not related to Ford’s business activities in the forum (the claimants’ cars were manufactured and assembled out of state and were ultimately shipped into the state by independent dealers – see above). In other words, Ford’s “contacts” in the forum did not cause the accident in question.
The claimants make a much simpler argument: “if a defendant deliberately cultivates a given state as a market for a product, it may be sued in that state for injuries caused in that state by that product”. Ford, they submit, clearly cultivated Minnesota and Montana as markets for their product, and their product caused the accident in question, so specific personal jurisdiction should be enforced. The fact Ford did not sell the specific units involved in the collision would, on that analysis, be irrelevant. The relevant point is simply that Ford do generally sell those units in Minnesota and Montana.
The pending decision is expected to provide some much-needed clarity on the manner in which the “relatedness” test will be applied when determining specific personal jurisdiction. If the claimants are successful, UK domiciled tour operators conducting business in America will be exposed to a much greater risk of State-side litigation. If Ford are successful, that risk will be substantially lessened. In either event, UK domiciled businesses will want to ensure their business terms contain comprehensive and carefully drafted provisions relating to jurisdiction and choice of law – the prospect of being subject to the United States’ punitive laws on damages is not an attractive one.
About the Author
Henk Soede was called to the Bar in 2019 and is chambers’ newest recruit. Since April 2020, he has been instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims. He is eager to build on his experience in these areas, but accepts briefs in all chambers’ areas of work.
We know that these are worrying times for the profession, and so in the spirit of helpfulness which characterises the team, we have found a job paying an annual salary of £30,000, the main requirement for which appears to be an ability to walk short distances. A Holborn based firm of solicitors is looking for a ‘personal assistant and dog walker’, which is apparently a ‘predominantly non-desk based position’ which also encompasses ‘running errands’. Experience of walking dogs is required. We reckon this lies within our collective skill set and are tempted to make a group application. Should you see us trotting round Lincoln’s Inn Fields in the weeks and months to come, do be sure to Holler.