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Articles | Mon 1st Feb, 2021
We were gratified to see so many friends at our 1CL webinar on Brexit, which combined Tom Yarrow’s intimate knowledge of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 with Sarah Prager’s sunny prognostications as to the future of cross border litigation (link to the recording here). The mood was generally optimistic; a welcome corrective to the generally accepted Always Winter But Never Christmas pre-Brexit feeling. But Sarah Prager wasn’t the only person talking crystal balls last week; Sir Geoffrey Vos, the new Master of the Rolls, shared with the Law Society his Ultimate Vision for civil justice. Further food for thought came with two more decisions on whether or not hearings should be adjourned in the context of the pandemic, which taken with the firm views expressed by Marcus Smith J in Bilta v SVS Securities Plc  1 WLUK 42, must surely amount to a judicial injunction to Keep Calm and Carry On. Martin Spencer J and Marcus Smith J do seem to be determining most if not all of the cases in this field lately, but as District Judges Harding and Spencer complete their judicial training, we must expect to see even more cross border specialists joining the Bench in the near future.
The Lion, the Guide, and the Local Safety Standards Defence
Last week, the UK press reported the settlement of liability issues in a claim which had been listed to commence for trial (over 4 days) on Monday 25th January 2021: Fourgeaud v Africa Travel Resource Limited. Liability was resolved by agreement (on 90:10 terms in the Claimants’ favour) on the Saturday afternoon immediately preceding the Monday start date for the liability (only) trial. A (remote) hearing to resolve the contested ancillary issues (an interim payment on costs and further directions) took place before the scheduled Trial Judge: Martin Spencer J.
The Claimants are a married couple. Their claim arose out of an incident which occurred on 1st August 2015 (sometime between 0200 – 0300 hours) while the Claimants were enjoying a safari holiday in Tanzania. It was common ground that the holiday was a regulated “package” within the meaning of regulation 2(1) of the Package Travel etc. Regulations 1992 (SI 1992/3288) (and that the Claimants were “consumers” and the Defendant, an English-registered limited company, “the organiser” and “other party to the contract”). The Defendant supplied the relevant safari holiday services by means of a local supplier/ground agent.
The Claimants suffered injury when they were attacked by a lion at the mobile camp where they were sleeping in the early hours of 1st August 2015. The Claimants were inside their tent (asleep) when the lion gained entry (by clawing its way in). The camp (colloquially, a “fly-camp”) was located within a dry river bed at the remote Ruaha National Park, Tanzania. The camp was an exclusive one: at the material time, the only occupants of the camp were the Claimants (sleeping in one tent) and their safari guide (from the Defendant’s local supplier) and his partner (together, occupying another tent). Before the campers retired to their tents for the night, they enjoyed a convivial dinner. The waiting and catering staff then departed the camp (leaving just four persons, including the Claimants, to spend the night under canvas).
It was common ground that, during the course of the evening/night preceding the attack, lions had been heard in the vicinity of the camp (and it was also common ground that a small pride of lions had been seen earlier that day). The Defendant’s factual evidence was that lions could be heard up to around midnight, although by that time the noise of lions was “veering out of earshot.” Equally, it was common ground that, at the time of the attack, the guide (who had a rifle in his tent) was asleep and was woken only by a scream (emanating from the Claimants’ tent at or about the time of the attack). The lion was eventually chased away by a warning gunshot (but not before it had mauled the First Claimant and, the Claimants allege, left them both in considerable fear for their lives).
By reason of the incident, the Claimants suffered significant physical and psychological injury. They brought proceedings against the Defendant on conventional package holiday contract lines, relying on causes of action in contract pursuant to the Defendant’s Booking Conditions (which were in standard form) and the Package Travel etc. Regulations 1992. They pleaded particulars of breach of duty which focused, among other things, on: the absence of an active/waking night watch at the time of attack; the absence of any risk assessment; the placement of the tents (at a distance of 40 metres from the guides’ tent according to the Claimants); and, the lack of any equipment which might have enabled the Claimants to attract attention and/or to deter the lion.
The Defendant’s Defence put the Claimants to proof that the matters on which they relied constituted a breach of the local, Tanzanian, safety standard, on volenti non fit injuria (the Claimants were experienced in safari conditions in Africa and were, so the Defence suggested, volens the risk) and the proposition that the attack (being extremely rare in the context of a tourist experience) was not reasonably foreseeable (for good measure, the Defence also pleaded reliance on regulation 15(2)(c) (both sub-paragraphs (i) and (ii)) of the 1992 Regulations). The Claimants’ evidence was that they were unaware that the leader/guide would be asleep during the night (leaving no one else on active watch), notwithstanding the proximate presence of lions: in the circumstances, they characterised the volenti argument as hopeless (relying as it did on consent to risks of which the Claimants were unaware). Similarly, the Claimants relied on Jolley v London Borough of Sutton  1 WLR 1082 (HL) with respect to foreseeability: in any event, the expert evidence was that lion predation on humans in Tanzania was not all that unusual.
Perhaps unsurprisingly, by the time that the case was settled, the Defendant’s arguments had been refined to concentrate on local safety standards and on causation. As to local safety standards, the Defendant conceded that there were Tanzanian regulations (secondary legislation dating from 2009) which covered the qualifications, registration and conduct of tour guides and the nature of tourist accommodation (including the provision of tented and mobile accommodation). However, the Defendant’s position was that the 2009 regulations did not deal (with any useful specificity) with the breaches of duty on which the Claimants relied. Moreover, so the Defendant argued, the Claimants’ expert evidence might have covered customary local standards in southern Africa (generally), but did not deal satisfactorily with the customary standard in Tanzania. As to causation, the Defendant relied on factual evidence that the presence of an active/awake guide would not have made a difference (in time): a proposition with which both parties’ expert witnesses and the Claimants disagreed.
Both parties relied on expert witnesses in the permitted field of Tanzanian safari safety standards: the Claimants on a highly qualified professional Field Guide from South Africa and the Defendant on a US-based Professor of Ecology and Animal Behaviour. In a Joint Statement, the experts agreed, among other things, that there ought to have been a waking/active night watch in camp and that the presence of such watch/guide would likely have deterred the lion (in time). The Defendant’s response was that this did not assist the Claimants to prove the (requisite) breach of local/Tanzanian standards.
As to the relationship between formal/regulatory and customary local (Tanzanian) standards, the Claimants would (had the matter proceeded to Trial and if necessary) have relied on a variant of a theme which can be detected in dicta in Balram Singh v Libra Holidays Ltd  EWHC 276 (QB) and Healy v Cosmosair Plc  EWHC 1657 (QB): generally expressed local regulations might be expressive of and evidence for customary local standards of reasonable conduct (in other words, formal and informal local standards often interact and can be regarded as inter-dependent. In the same way that local customs cannot water down strict, specific formal standards, the same formal standards will not water down a customary standard which is not inconsistent with the formal standard). The Claimants also intended to rely (if the need arose) on the very recent appeal decision in Morgan v TUI  EWHC 2944 (Ch), “Although ‘local standards’ will doubtless be ‘a very important signpost’ where they are readily ascertainable by reference to – say – a local law or regulation, in cases where there is no readily ascertainable standard it will be for the Claimant, as in Lougheed, to establish the content of the duty by leading other evidence.” (Judgment, #17 per Marcus Smith J).
In common with another commentator in this field (Bernard Doherty, Accidents Abroad (2nd ed, 2017), para 16-034) I have long regarded the insistence on local standards in a case like this (the Claimant required to discharge the burden of proof by leading expert evidence) as “fatuous”: do we really require an expert to tell us that tourists sleeping in a flimsy mesh tent placed in a dry riverbed with proximate lions should be watched over by someone at night? The local standards defence (and the fatuous insistence that the Claimant prove a breach of the local standard in every case no matter how obvious) is, perhaps, now teetering on the brink of collapse (and not before time). It is a pity that the settlement of Fourgeaud has deprived the Courts of the opportunity to give it a further/final push in the right direction.
Matthew Chapman QC of 1 Chancery Lane and Leane Shanks of Irwin Mitchell, London acted for the Claimants.
About the Author
Matthew Chapman QC was called in 1994 and took silk in 2017. Widely regarded as one of the best travel lawyers of his generation, he has been involved in almost all of the leading cases in the field of cross-border litigation in the last two decades. Together with his colleagues at 1 Chancery Lane, he co-authors the leading legal textbook in the area, and is described in the legal directories as being ‘the go-to barrister for complex issues of jurisdiction and applicable law’.
The Magician’s Nephew: conjuring up court capacity
Judges are often criticised for lacking human emotion: A career spent refereeing the disputes of strangers has an inevitable calcifying effect. But in years to come, you may be surprised to find that your claim against the builder for the leaky roof is presided over by a fully-fledged automaton.
On Thursday last week, the incoming Master of the Rolls Sir Geoffrey Vos, set out his vision for the future of civil justice, appropriately enough, via a webinar hosted by the Law Society. The speech contained ambitious proposals for reform of the court process. These included an ‘integrated online dispute resolution’ service with a ‘single transferable data set’ (no more turning up to trial in Leeds to find the court file is in Manchester). ADR, which he described currently as ‘patchy’, is to be a ‘continuous’ part of the process. And remote hearings are not just a necessity of the current pandemic but are to be encouraged and expanded.
But amongst these proposals is an altogether more eye-catching one: the possibility of courts using artificial intelligence to resolve disputes. The Master of the Rolls cited eBay’s use of AI to resolve 60 million claims a year with ‘high user satisfaction’, as well as the success of the Ombudsman service, which is based on written submissions.
Quite how existing AI technology could be applied to the court process was not explained; Nor was it explained what sort of disputes it might be used for, or the timescale within which we might start to see AI in court.
For those lawyers and judges concerned that they’re about to be usurped by tin-clad humanoids programmed to recite the Highways Act by heart, the Master of the Rolls attempted to give some reassurance by likening ‘traditional’ court hearings and judges to the survival of the high street amidst the ‘astonishing growth of online shopping’. At a time when the high street stands empty, however, this might not have had the desired effect.
The full speech is available here.
About the Author
Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.
The Last Battle: Last Ditch Attempts to Adjourn Hearings
In Spring last year certainly this writer’s experience was that many hearings were being adjourned rather than heard remotely. In fact, some hearings were listed remotely, only to be adjourned after the hearing had started on the basis the judge did not consider the hearing suitable to be heard remotely and/or due to technical problems. Similarly, judges seemed willing to grant long extensions on relatively scant evidence.
But now, almost a year on, and with a large court backlog, there is some evidence that the pendulum has swung the other way. Last week saw two instances of High Court judges refusing Covid-related adjournments.
In Cooke v Archers Solicitors  1 WLUK 330 a hearing to set aside a settlement agreement was listed remotely. Late in the day, the claimant applied to for an adjournment and for the hearing to be held remotely. The claimant stated that he had a hearing impairment which made it difficult to hear everything that was being said, and that he would be disadvantaged by being on a separate connection to his legal team, making it hard to give instructions.
The judge refused the application, noting it was made very late, but determining it on its merits. The difficulty of giving instructions was a feature of many remote hearings and could be accommodated with appropriate adjournments. This was not a hearing with evidence and the claimant was represented by solicitors and counsel. The defendant did not wish to adjourn, and the court did not consider it “necessary” for the claimant to attend court. A fair hearing could take place remotely.
In Ashford Borough Council v Wilson  1 WLUK 307 it was the defendant seeking an adjournment. The defendant also had a hearing impairment and had been ordered to attend a ‘hybrid’ hearing. The defendant applied to adjourn, saying he had to self-isolate having been exposed to Covid-19, and that he could not attend remotely because of his deafness. The difficulty with the application was that the defendant had already applied for an adjournment on the same basis and did not explain how he had come to be exposed to coronavirus so soon after the last hearing was listed. The application was not supported with medical evidence as to the defendant’s hearing impairment or other medical conditions or why a remote hearing would be unfair.
It is clear that the courts are alive to the possibility that some unscrupulous litigants may seek to use the pandemic as a litigation tactic – for delay, or other purposes – and are scrutinising Covid-related applications perhaps more carefully than they did a few months ago.
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.
Our predictions of a rush to jump the queue for vaccination have been realised. We’re not talking about the unseemly spat between the EU and the UK though; we hear that public health officials in Florida have identified ‘vaccine tourism’ as the reason 39,000 people resident outside the state have been vaccinated within it, using vaccines intended for residents. It seems wealthy Argentinians and Canadians are travelling to Miami for the jab, and a number of Indian travel agencies are also offering Vaccine Packages, including flights, accommodation and vaccination. American news agencies also report that a British travel agent is offering similar packages to Dubai at a cost of $55,000. For this modest sum you get flights aboard a private jet, seven star accommodation for a month, and two trips to a private clinic for doses of either the Pfizer or the Sinopharm vaccines. We at 1CL foresee all sorts of interesting arguments about whether or not vaccination is a ‘tourist service’, and as always stand ready to serve.
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