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Articles | Mon 21st Dec, 2020
Regular readers know that we at 1CL maintain Pollyanna levels of optimism and good cheer at all times, but even we have to admit to some small dismay at the cancellation of Christmas this year. Happily we consider ourselves one big happy family, so the 20lbs of sprouts already on the boil will not be wasted, but we must regretfully forego our annual trip to the panto, always a most invigorating occasion. We’ve been entertaining ourselves by crying ‘he’s behind you’ at judges via CVP, and booing at our opponents’ closing submissions, but it’s just not the same.
Little Red Riding Hood and the Big Bad Wolf
It’s really happening this time. We’ve had four Brexit deadlines, with ‘wolf’ being cried on each occasion; and on each occasion the hungry predator being kept at bay. For clarity – the wolf for the purposes of this article symbolises the dangerous unknown of being outside the EU regime for civil judicial cooperation, affectionately known as ‘CJC’.
Now we have 31st December 2020. As I write, negotiators are burning the midnight oil desperately seeking to bridge differences over fish and ratchet mechanisms. We should know in the coming hours (at the time of going to print, maybe we do already) whether it will be deal or no deal. But in the context of CJC, it really doesn’t matter. No matter what happens between the UK and EU in the next few hours/days, there will not be a deal in this area. It is simply not on the negotiating table, and hasn’t been since Theresa May’s famous Chequers proposal was flung about the House of Commons and roundly dismissed – somewhat confusingly, by both sides.
What’s gone and what will remain? Well, some words of comfort: Rome I and Rome II are part of the ‘snapshot’ of EU law which is being incorporated into domestic law by virtue of the European Union (Withdrawal) Act 2018 – see the catchily named The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019 for details. The UK can implement these laws unilaterally, despite exiting the EU regulatory framework and withdrawing from the Rome Convention, as it is ultimately a matter for the UK what law their courts apply. In fact, there will continue to be reciprocity in any event as EU Member States will still apply English, Scottish or Northern Irish law in matters on which the Rome provisions bite in their own courts (as the Rome Regulations require EU Member States to apply the law of Third Countries in relevant disputes).
Second, the UK will have the benefit of the Hague Convention 2005 on Choice of Court Agreements. The 2005 Convention came into force on 1st October 2015, with the EU being a party on behalf of all its Member States (except, as ever, Denmark). During the transition period, the UK has maintained an odd status of being covered by the 2005 Convention without being in the EU, but that of course will come to an end on 31st December of this year. The UK will join the Convention in its own right from 1st January 2021, although with some ambiguity as to its retrospective effect on choice of court clauses before that date – a space to watch. The Private International Law (Implementation of Agreements) Act, which received Royal Assent last week, provides the necessary statutory basis for the provisions of the Convention to apply. Claims for personal injury and, of course, non-contractual torts are outside the scope of the 2005 Convention.
There is then there a further Hague-suite Convention in the pipeline – the Hague Judgments Convention 2019. This importantly will cover matters such as personal injury expressly excluded from the earlier iteration, the aim being to create a system not unlike the New York Convention in the sphere of arbitration. Neither the UK nor the EU has signed up yet; it is certainly not a short-term solution.
The big loss, of course, and the reason so many claims are being issued at the moment, is the exit from the Brussels recast regime. This the UK cannot simply replicate unilaterally. As we have written about before, the UK has made no secret of its desire to join the Lugano Convention, which essentially reflects the position prior to Brussels I recast (i.e. without for instance the lis alibi pendens provisions neutralising the so-called ‘Italian torpedo’ tactic). But the EU’s approval is needed, and the EU have not (yet) agreed to the UK’s accession. Even if they were to give agreement, the Convention will still not apply immediately, as there is a three-month lead in period to being in force. For a seamless transition from Brussels to Lugano, the accession needed to be confirmed by 30th September of this year and that boat has sailed.
The UK Government official line is still that it remains confident of a deal on accession to Lugano, even if it means there is a short gap between the end of the transition period and the UK’s accession becoming effective. For my part, I am not so sure. The EU have always viewed this as a single market issue, with the only non-EU/EEA country participating in Lugano being Switzerland, which we well know the EU are not keen to hold up as an example EU-Third Country relationships. Even in areas where it is arguable that there it would be in the EU’s interests to allow the UK to participate, the EU has remained consistently intransigent on its red line relating to division of freedoms and benefiting from single market provisions from the outside. In this sphere, as with financial services (and the Galileo program), it appears the Commission have accepted there may well be negative consequences in hindering the operation of markets where the UK is (if not dominant) a key player, but that it is nevertheless better to let the Brexit chips fall as they may, and re-assess in the coming months and years.
So, broadly speaking, it will be back to common law for the rules on jurisdiction and enforcement of judgments in areas not covered by Hague 2005, albeit with a little help in some spheres from some secondary legislation – the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 for instance amongst other things, unilaterally allows UK domiciled consumers to continue to enjoy the benefits of bringing proceedings in their home courts. Otherwise, there will invariably be more applications for service outside the jurisdiction; more parallel proceedings and more risk of irreconcilable judgments; no ability to secure CJEU injunctions against proceedings continuing simultaneously in the EU; no automatic ability to enforce judgments in the EU; and foreign law advice will be needed for foreign enforcement.
In a best case scenario, from a UK perspective, this will merely constitute a gap, and by the springtime, the UK will have at least reached the shores of Lugano. But I will not be holding my breath. Ten days left. Better to issue now and ask for forgiveness later.
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.
The EU Motor Directive is behind you!
The latest exciting travel law news relates to iterative regulatory developments in the field of motor insurance. Since the green card system was introduced in 1949, there have been six Motor Insurance Directives. The current regime aims to ensure coverage for civil liability of motor vehicles, to allow the sharing of information in the event of cross-border RTAs; and to facilitate streamlined and proportionate litigation (including facilitating early settlement of claims).
To address difficulties relating to cases of insolvent insurers (see e.g. Csonka v Magyar Allam C-409/11;  1 CMLR 14 (CJEU)), and the scope of the requirement of compulsory insurance (see e.g. Vnuk C-162/13;  RTR 10 (CJEU), the EU commission began work in 2016 to revise the present regulatory regime and last year the EU parliament and Council published updated positions on the matter.
The process is ongoing. The EU Parliament has proposed a 12-month transposition timetable, whereas the Council proposes that an amended directive be transposed/implemented 24 months after entry into force. In either case, any change will take effect after the UK has exited the transition/implementation period provided by the withdrawal agreement. The UK Government has already stated its intention to provide a degree of continuity in this area: see the Motor Vehicles (Compulsory Insurance) (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/551). Given the long history of international cooperation in this important area, it seems likely that the revised Motor Insurance Directive (when in force and implemented) will continue to be of relevance in the UK, whatever the position on leaving the Brexit transition period after 31st December 2020.
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.
It’s a “shipping incident”! Oh no it isn’t! Oh yes it is!
The Athens Convention (as amended by the 2002 Protocol) provides for a form of strict liability for injuries caused by “shipping incidents”. In such cases, the carrier is liable for up to up to 250,000 units of account unless the carrier proves the incident was caused by war, exceptional natural phenomena, or deliberately caused by a third party. To the extent the loss exceeds 250,000 units, the carrier is liable unless it proves the absence of fault or neglect.
Article 3(5)(a) defines “shipping incident”. This includes a “defect in the ship”. “Defect in the ship” is, in turn, defined by Article 3(5)(c) as “any malfunction, failure or non-compliance with applicable safety regulations in respect of any part of the ship or its equipment when used for the escape, evacuation, embarkation and disembarkation of passengers, or when used for the propulsion, steering, safe navigation, mooring, anchoring, arriving at or leaving berth or anchorage, or damage control after flooding; or when used for the launching of life saving appliances”.
This means that whether or not a particular accident was caused by a “defect in the ship” can be of critical importance for the question of liability. There are different potential readings of the definition, though. Does the second part of the definition apply only to equipment, or to “any part of the ship” as well?
The issue was discussed in detail in Nolan v TUI UK Ltd  1 Lloyd’s Reg 211. In that case, the claimant sought to argue that a norovirus outbreak on a cruise ship was caused by a failure to carry out a proper deep clean, and that this was a “defect in the ship”. The cruise in question took place before the coming into force of the 2002 Protocol, so before this term was specifically defined. At paragraphs 18 and 19 the judge accepted submissions from the defendant that there was a “strong demarcation” between defects on the “navigational side” of a ship on the one side, and the “hotel side” on the other. The judge considered that there was an important difference between “a typical maritime peril” and “something which could have happened onshore”, stating that it would be a distortion of language to construct “defect in the ship” to include a failure to deep clean.
This decision suggests that malfunctions and so forth in the ship would need to be within the “navigational side” of the ship – as set out in the second part of the definition – to be a “defect in the ship”, and that a malfunction limited to the “hotel side” would not fall within it. However, this has yet to be tested in reported cases, so watch this space!
About the Author
Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited  11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.
This is the last Weekly Roundup of the year. We hate to leave you, our dear readers, bereft of our company at this most festive season, but those sprouts won’t eat themselves, and the annual argument over which is the best adaptation of A Christmas Carol is hotting up (The Muppets’ version just pips Blackadder’s, in the editor’s view, but this is not a truth universally acknowledged). It would be remiss of us to let 2020 slip by without thanking our friends and clients for all your support in what has been a challenging year for us all, both professionally and personally; we will strive to prove ourselves worthy of your loyalty in the challenges which are, no doubt, to come in 2021.
We will return in the New Year, not only in the form of the Weekly Roundup, but with a resumption of our webinar series, starting, on 14th January, with an examination of cross-border clinical negligence claims, by popular demand.