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Articles | Mon 25th Jan, 2021
There’s no denying it; this week the team has been frolicking in the snow. Between building snowmen, and standing outside with our tongues out trying to catch snowflakes, it’s been a busy week. We’ve found time to produce a special briefing on jurisdiction, though, and to turn our minds once more to cross border disputes and to the potential ramifications of Saga’s stipulation that its passengers must be vaccinated before they can take up their holidays.
For the First Time in Forever (we’ve got a case on the Lugano rules on lis pendens)
There is apparently a saying in Norway: “to be in the middle of the butter”, which means to find yourself in a great place. There was a time when the ‘Norway option’ was championed by many as the mid-butter destination for a Brexiting UK, with its one-foot-in one-foot-out status. Even now, at least in the policy field of civil judicial cooperation, being more like Norway is the UK Government’s aspiration: the aim is to accede to the Lugano Convention, which boasts Norway as one of its only four non-EU (EFTA) member states.
The Lugano Convention reflects the Brussels regime before those Regulations were ‘recast’; the additions for the EU states not finding themselves recommended by the Lugano Standing Committee. One particular area of difference between Lugano and Brussels recast is the lis pendens provision, which the EU Regulations tweaked in 2012 to neutralise the so-called ‘Italian Torpedo’. As a consequence, if the UK is successful in getting into Lugano then we practitioners need to get a bit more (or re-) familiar with Articles 27 and 28 of the Convention, which deal with the court ‘first seised’ rules. It was therefore pleasing to see those Articles getting an outing before the Court of Appeal in the recent decision in Craig Wright v Magnus Granath  EWCA Civ 28.
The issues in the substantive claim are intriguing enough to merit a brief outline here. The claim in the English courts was one in libel, for a tweet of the Defendant in which he stated that the Claimant fraudulently claimed to be ‘Satoshi’. Some readers might well have sharply inhaled their breath at reading such a statement; some might be utterly baffled. For the benefit of the latter, who maybe are unfamiliar with crypto-drama, ‘Satoshi’ is a pseudonym for the inventor of the cryptocurrency bitcoin, whose true identity is unknown to the world. Before proceedings were issued in the UK, the Defendant, a Norwegian citizen, brought a claim in the District Court of Oslo seeking a negative declaration that he had not been libellous. A month later the claimant, resident in England, started the English proceedings for defamation. As a consequence, for the purposes of the Lugano Convention the Norwegian Court was ‘first seised’ of the action. At first instance, the English courts declined jurisdiction in accordance with Article 27(2) on the basis that the English and Norwegian claims involved the same cause of action.
On appeal, the Court of Appeal considered the tension between the lis pendens provisions and the bringing of ‘mosaic claims’, where it was permissible for a series of claims to be brought in different jurisdictions simultaneously where each was confined to the damage suffered within that jurisdiction. They found that no such tension applied in this case as this was a ‘global’ defamation claim and the Norwegian negative declaratory relief claim was legitimate and was not abusive in restricting the claimant’s choice of forum to sue where the harm occurred under Article 5(3).
However, the Court of Appeal (Popplewell LJ dissenting) held that the two cases did not have the same cause of action for the purposes of Article 27. They had the same object – determination of the respondent’s liability for his tweet. A cause of action comprised the facts and the rule of law relied on as the basis of the action; two cases with the same cause of action would mirror each other and would give rise to a risk of legally irreconcilable judgments. The Norwegian claim included a question that was not present in the English claim – whether the allegations in the tweet were being made negligently. Thus, the juridical basis of each claim was different, and Article 27 did not apply.
It may be that the courts will be dealing a lot more with Lugano in the coming years, if the UK gets its wish. But in the meantime, there is some good news on the Norwegian front. The UK has managed to secure a new civil justice cooperation deal with the kingdom, picking up on an old treaty from 1961. This has a transition period provision similar to the EU Withdrawal Agreement which states that Lugano rules continue to apply for any cases lodged with the court before 31st December last year.
Is this an early sign that, though we are not in the middle, we have reached at least taken the lid off the butter dish?
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.
In Summer (we could all be travelling again – but only if we get our documentation right)
As the rate of vaccination accelerates, so tour operators and travel agents are making cautiously optimistic noises about the Summer season. Interestingly, though, Saga Holidays, whose target demographic is being vaccinated as we speak, has said that it will not allow passengers to embark on its holidays or cruises unless they have been fully vaccinated at least two weeks in advance of embarkation. This includes holidaymakers who had already booked their holidays in advance of the announcement.
Saga has said that if a holidaymaker wishes to cancel an existing booking rather than undergo vaccination, a full refund will be provided, which, for what it is worth, is thought to be no more than its legal obligation under Regulation 13 of the Package Travel and Linked Travel Arrangements Regulations 2018. An interesting question arises, though, as to whether the tour operator would also be liable to compensate the holidaymaker for loss of enjoyment of the holiday in such circumstances.
The starting point is that the tour operator is not entitled unilaterally to alter the terms of the contract, so the additional stipulation that the holidaymaker must be vaccinated cannot form a condition precedent to the performance of any holiday contracts in existence at the time of the announcement (although it may apply in respect of booking subsequently made, depending on incorporation of the term). The tour operator is therefore taking up the position that it could supply the contract, but is refusing to do so for its own (no doubt sensible) reasons. Might it be said that Regulation 13(2)(b) applies? It will be recalled that this provision states:
“(2) Paragraph (3) applies where…
(b) the organiser is prevented from performing the contract because of unavoidable and extraordinary circumstances and notifies the traveller of the termination of the contract without undue delay before the start of the package.
(3) The organiser—
(a) may terminate the package travel contract and provide the traveller with a full refund of any payments made for the package;
(b) is not liable for additional compensation.”
The obvious point to be made is that the refusal to perform the contract is not unavoidable, because it is a decision made by Saga for policy reasons (those reasons, presumably, being primarily that the company does not wish to be responsible for further outbreaks of Covid-19, particularly on its cruise ships). It is suggested that a decision taken by the provider of services itself would be unlikely to be considered to be ‘unavoidable’ within the meaning of the Regulations, and therefore compensation will be payable, as well as a refund, to those disappointed holidaymakers who have not been vaccinated in accordance with Saga’s stipulation.
As indicated, the announcement, and any alteration to the company’s standard terms and conditions, are likely to be effective going forward; unvaccinated would-be holidaymakers are free to choose not to enter into holiday contracts with the company, and the condition does not seem, on the face of it, to be unreasonable. After all, if 100% of passengers on a cruise ship have been vaccinated, the likelihood of an outbreak of illness occurring on board will be much reduced.
The author has concerns, however, that requiring all passengers, without exception, to have been vaccinated raises issues of discrimination; some people cannot be vaccinated due to health concerns such as compromised immunity, some choose not to be vaccinated for faith-based reasons (and an anti-vaccination stance may in itself be a protected belief), and some cohorts will not have been vaccinated by the time Saga’s holiday programme re-opens on 1st May 2021, meaning that younger customers will not have been vaccinated in time to take up their holidays. Saga’s policy decision therefore appears to be discriminatory against some potential passengers on the grounds of disability, belief and/or age. No doubt the operator would argue in its defence that the pressing need to prevent outbreaks of illness outweighs the rights of these would-be passengers to travel with the company, thus justifying the discrimination; but this is a difficult argument at the best of times, and the caselaw on justification is not propitious. Could the Great Refund Saga be about to take yet another turn?
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.
We were interested to read that a couple were denied boarding by Ryanair when they presented at Krakow airport for a flight to Dublin with their negative Covid-19 PCR test results written in Polish. A negative test result is indeed required for air passengers to enter the Republic of Ireland, but the Irish Department of Foreign Affairs does not specify the language in which it ought to be written. Nevertheless, the officious member of Ryanair staff, who, as a Pole, was able to read and understand the test result, told the couple that they could not fly without an English test result and refused to board them. Ryanair has since promised to reimburse the couple for the cost of their enforced additional week’s stay in Krakow, and to fly them home on presentation of an updated negative test result, but the whole sorry affair raises a far more important question than any arising out of the Denied Boarding Regulations; why on earth aren’t Ryanair insisting on receiving test results in Gaelic?
Don’t forget: at noon on Thursday in the next in our 1CL webinar series Sarah Prager and Tom Yarrow will address cross border litigation after Brexit, something to which Tom brings a unique insight, having worked as a policy advisor on the UK-EU Withdrawal Agreement at the Department for Exiting the European Union.
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