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The Weekly Roundup: the Spaced Edition

Articles | Mon 18th Oct, 2021

As Captain Kirk resumed his Space Odyssey this week, the team remained depressingly earthbound. But thank goodness we were! If we’d been Lost In Space, we’d have missed the New Hope presented by the court’s new remote hearing platform. We might also have been left unaware of the Gravity of the new Foreign and Commonwealth Office and Foreign, Commonwealth and Development Office guidance on what to do if you’re the victim of crime abroad in some Undiscovered Country. We were also interested to receive a Cargo of caselaw including the decision of the Court of Justice of the European Union in CS v Eurowings GmbH, Case C-613/20, in which the CJEU considered the obligation of air carriers to compensate passengers for flight cancellations due to strikes. Attentive readers will have Total Recall, of course, of the previous decision of the CJEU in Krusemann v TUIfly GmbH, Case C-195/17, in which the court found that flights cancelled or delayed for over three hours by strikes gave rise to Article 7(1)(a) rights to compensation. You would have thought that after that Close Encounter with the CJEU German carriers would be cautious about having any further Contact with the Court, but they appear to have been all too keen to return to the Arena for another go. Perhaps predictably, the Court in CS consigned their arguments to Oblivion once more, however. Finally, The Day After Tomorrow the Supreme Court will be handing down the latest judgment in the Brownlie saga; will the Four Seasons (hotel) Empire Strike Back?


Punishing Consumers for Exercising their Rights: Approaching the Unknown?

Ryanair has been in the news again this week after it was reported that the airline had “barred” passengers who pursued chargebacks during the pandemic. The reports followed an investigation by MoneySavingExpert. It appears that at least some of the passengers in question had booked their flights after pursuing their chargeback remedy, and had been denied boarding after their booking had been accepted by Ryanair. In one case, it was said that the passenger was told they could not fly with Ryanair just hours before their scheduled departure. Passengers faced losing accommodation, car hire, and Covid testing reservations, in addition to their flights.

The obvious remedy for such passengers would be EC Regulation No. 261/2004 (‘the Denied Boarding Regulation’) which establishes a right to fixed compensation sums, depending on the distance to be flown. Presumably Ryanair believes that either they will be able to counterclaim for the sum previously claimed by chargeback on grounds of unjust enrichment or breach of contract (there being no judgment against the airline for that chargeback sum, but merely an administrative decision of the card provider); or alternatively Ryanair believes that its action will serve as a high profile deterrent to customers from seeking chargeback again in the future, and that the fall in the number of future chargeback claims will outweigh the cost of a few more payments under the Regulation.

Any judge faced with a claimant treated in this way by an airline would instinctively want to find for the claimant. It is unclear what actions the customers affected have taken, but possible remedies might include exemplary and/or aggravated damages, and costs awards, regardless of whether claims are brought in the small claims court. The compensation recoverable is fixed under Article 7 of the Regulation, but passengers are also entitled to be rerouted, and where passengers have had to fly with an alternative airline, that sum should be recoverable also.

A more difficult question is whether Ryanair will face consequences for barring the passengers in question from booking with the airline in future. The clear purpose of such a policy would be to deter consumers from accessing their statutory rights. It might be that either the Civil Aviation Authority or the Competition and Markets Authority will step in, but it might also be arguable that individual consumers could claim damages for additional costs of flying with a rival as a result of Ryanair’s policy (forcing Ryanair to contract with consumers would likely be a step too far). Legislatures have long intervened in consumer-trader relationships so as to confer statutory rights on consumers, rather than leaving their rights to be determined by freedom of contract. Should the courts allow airlines effectively to deter consumers from enforcing their statutory rights, then the rights under the Denied Boarding Regulation would become, in practice, worthless. It remains to be seen whether any passengers will attempt to Approach the Unknown in making such a novel and cutting-edge claim.

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.


Brownlie in the Supreme Court: Marooned in the Court System?

On 13th and 14th January the appeal in FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45 was heard by the Supreme Court; on 20th October the Court will hand down its judgment. Seasoned practitioners will be aware of the long and tortuous history of the litigation; and even after the decision is handed down, it’s unlikely to be the beginning of the end, although it may just be the end of the beginning.

The facts will by now be familiar: on 3rd January 2010 Lady Brownlie’s husband was killed in a car accident in Egypt during an excursion booked through the Four Seasons Hotel Cairo, a hotel operated by the Defendant, FS Cairo. Lady Brownlie was injured in the same accident. The driver was subsequently convicted in Egypt of involuntary manslaughter. In December 2012 Lady Brownlie brought claims in tort and contract in the High Court against Four Seasons Holdings Incorporated, a Canadian company, for damages for injury and losses suffered as a result of the accident. The claim wound its way through the High Court and Court of Appeal, until in 2018 the Supreme Court concluded that the evidence showed that Four Seasons Holdings Incorporated was a non-trading holding company which neither owned nor operated the hotel and that therefore the courts of England and Wales had no jurisdiction to try the claims against it. In the light of the company’ jiggery pokery around identity of the correct Defendant, however, the Supreme Court ordered that the Claimant had permission to apply to correct the name of the Defendant, to substitute or to add a party to the proceedings.

Consequently Lady Brownlie applied to the High Court to amend her claim so that it could be brought against FS Cairo instead of Four Seasons. Permission to amend her claim was granted but, because FS Cairo is an Egyptian company, Lady Brownlie also required permission to serve her claim out of the jurisdiction, and applied to the High Court and then the Court of Appeal for such permission.

In order to serve her claim outside the jurisdiction, English law requires Lady Brownlie to show, in respect of each claim in contract and tort, that:

(1) it falls within a ‘jurisdictional gateway’ under CPR6PD6B;

(2) it is a claim that has a reasonable prospect of success; and

(3) England and Wales is the proper place in which to bring the claim.

The High Court and a majority of the Court of Appeal (Arnold LJ dissenting) decided that Lady Brownlie had met all three elements of this test in respect of her claims in tort and contract. Lady Brownlie was therefore granted permission to serve her claims on FS Cairo. FS Cairo appealed to the Supreme Court only against the decisions concerning the first two elements of the test.

A Stellar court comprising Men in Black Reed, Lloyd-Jones, Briggs, Leggatt and Burrows LLJ will now provide Judgment Day in respect of these issues:

  1. Whether the Court of Appeal was wrong to hold that the jurisdictional gateway for claims in tort under CPR6BPD3.1(9)(a) was satisfied in this case, in which the accident which gave rise to the claims occurred in Egypt;
  2. Whether the Court of Appeal was wrong to hold that the Claimant had discharged the burden of establishing that each of her claims, in a claim in which Egyptian law applies, has a reasonable prospect of success, by relying on the ‘default rule’ or ‘presumption’ that foreign law is the same as English law and in the absence of any pleading of Egyptian law.

But will there be a Minority Report? Our readers will be the first to find out.

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. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she has recently been invited to join the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists and the Admiralty Court Users’ Committee.


…And Finally…

As William Shatner blasted off into outer space this week the team took a moment to consider the implications of his flight. It seems that commercial space flights are closer than we may have thought – indeed, are upon us – and this has caused us to wonder whether Space Cruises might be next. There is no obvious reason why the existing travel law framework should not apply to these trips, although interesting questions arise as to applicable law, carriage by air and whether a stay at a space station comprises transport or accommodation or a combination of the two. Sooner or later we as practitioners will have to grasp the nettle and begin to consider the regulation of commercial space flight. The starting point is the American jurisdiction, which is 20 years ahead of us in terms of legislation, and which has been developing a consensus-led model which relies on the industry to determine best practice in terms of standards. The Federal Aviation Administration, which has authority over commercial space flights, is due to report on 31st March 2022 on whether the nascent commercial space industry is ready for regulation; and if it is, what form that regulation should take. We anticipate a regulatory regime similar to that in place for carriage by air; licensing and safety inspection of aircraft, licensing of pilots, and a contractual framework that seeks to provide clarity on jurisdiction and applicable law. There will be further considerations, however, peculiar to space travel; consumers will need to be educated about the negative effects of zero-gravity, there may need to be mental and physical health screening of potential passengers, and quite possibly medical personnel retained to provide assistance during flights. We await the FAA report with interest; whatever the eventual legal regime, as ever, we stand ready boldly to go where no lawyers have gone before.

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