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Articles | Mon 25th Oct, 2021
Regular readers will recall that the team was delighted, a couple of weeks ago, to report that 1CL has once again been nominated Barristers’ Chambers of the Year in the Personal Injury Awards 2021; this week we bring you news of our excellent rankings in Chambers and Partners, to be found here: 1 Chancery Lane, Travel: International Personal Injury | Chambers UK Bar Profile. But really, you only encourage us with your kind testimonials, and we’re quite incorrigible enough already, particularly our ‘completely unflappable’ clerks.
Truly, Madly, Deeply in Trouble: CMA Action on Refunds
Over the past months, there have been several MMB articles about liability for refunds for package holidays cancelled because of Covid. This week saw the start of a new chapter in the story: the Competition and Markets Authority (“the CMA”) has issued a claim against a tour operator seeking an order requiring prompt payment of refunds to consumers.
More than eight months ago, the CMA began investigating Teletext Holidays and Alpharooms.com in respect of these refunds. Following this, towards the end of May, the company that operates these two businesses, Truly Holdings Ltd (“Holdings”), entered into voluntary undertakings committing the businesses to use all reasonable endeavours to providing refunds to package holiday consumers within a specified period of time (https://assets.publishing.service.gov.uk/media/60ad7acfd3bf7f737c3caf18/210525_-_FINAL_-_undertakings_for_execution_Redacted—.pdf)
The latest time for providing refunds was the end of August 2021 (in respect of cancellations between November 2020 and 24th May 2021). The undertaking makes clear that it is not an admission of breach of consumer law on Holding’s part – but that it is a binding commitment by Holdings to comply with the terms of the undertaking, and, if breached, the CMA may bring proceedings for an enforcement order.
Not all consumers have yet received their refunds, and, in its claim, the CMA contends that Holdings has not done enough to provide these. It is understood that Holdings disputes this.
A number of other tour operators have provided similar undertakings in the course of the past two years. There was a previous instance of the CMA sending a letter of claim threatening court proceedings against a tour operator for not complying: the tour operator paid the outstanding refunds. As far as the author is aware, this is the first time the CMA has brought enforcement proceedings against a major tour operator under Section 215 of the Enterprise Act 2002 in respect of Covid refunds.
Section 215 enables the CMA to bring proceedings against tour operators who have breached the Package Travel Regulations and harmed the collective interests of consumers for an order requiring the tour operator not to continue or repeat the conduct: so in this instance, an order requiring payment of the outstanding refunds. The court is only able to make the order if it finds that the Package Travel Regulations have been breached.
Under Section 217 the court will be required to consider whether Holdings complied with its undertaking: this will likely turn on interpretation of “reasonable endeavours” in the context of the very large number of Covid cancellations and the practicalities involved with contacting and obtaining information from the customers affected.
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.
Contributory negligence, children and the English courts
As travel law practitioners will be aware, it is not uncommon for foreign legal regimes to have dramatically different approaches to liability and quantum in personal injury disputes. Indeed, in cases where there is scope for argument on applicable law, it is crucial that practitioners properly appraise the relative advantages / disadvantages of each of the potentially applicable options. This article looks at the principles that apply under English law in cases where contributory negligence is alleged against a child. Helpfully, these principles were neatly summarised in the recent decision of Alabady v Akram  EWHC 2467 (QB).
In Alabady, the Claimant (then 9 years old) was at a light controlled crossing with her mother and three cousins. The Claimant and the group went to cross the street despite the fact that the “red man” was indicating pedestrians should not cross. The Claimant became separated from the other members of the group as she crossed and was hit by the Defendant’s vehicle, thereby suffering serious injuries. The following findings of fact were made by HHJ Bird: a) the decision to cross when the “red man” was showing was probably not the Claimant’s; b) the Claimant did not look with care across the road because otherwise she would have seen the Defendant’s vehicle prior to the collision; c) the group stopped on the crossing when they noticed the Defendant’s vehicle approaching, whereas the Claimant did not stop because she was distracted; d) the Claimant was 9 years old and thus easily distracted; and e) the Claimant only moved away from the group for 1.32 seconds prior the collision.
Under English law, the standard of care to be expected of a child is to be measured by what is reasonably to be expected of a child of the same age, intelligence and experience: Ellis v Kelly  4 WLR 124. In Davies v Swan Motor Company Limited  2 KB 291, Lord Denning explained that there are two questions to be considered when analysing contributory negligence: (1) what was the causative potency of the claimant’s alleged contributory negligence? (2) what are the proportions in which the damages should be proportioned having regard to the respective responsibilities of those in fault? The second question is determined by reference to “relative causative potency and the moral blameworthiness of each party” (). HHJ Bird further considered the Court of Appeal’s decision in Gough v Thorne  1 WLR 1387, where two principles were identified: (1) if a child if of such a young age that he or she cannot be expected to take precautions for his or her own safety a finding of contributory negligence is precluded; (2) if a finding is to be made, blame must attach to the child. The reason there was no blameworthiness in Gough was because an older lorry driver had beckoned the child across the road and the child was not blameworthy for following those instructions.
The Judge’s central findings on contributory negligence were as follows: (1) the Claimant was not at fault for crossing the road when the red man signal was against her – she was under the general supervision of her mother and adult cousin and a child of her age “would naturally work on the basis that it was safe to follow the lead” of both adults (); (2) the Claimant’s momentary lapse in concentration which caused her to move head of the group did not amount to fault – it would not be reasonable to expect a girl of her age to keep such a close eye on the group that she could stop within a second or so of them stopping (); and (3) even if there had been fault, the Judge would have found that the reduction in damages would have been minimal and at most 10% — this would have been regarded as “de minimis” and no reduction would therefore have been made ().
For those reasons, HHJ Bird found that the Claimant was not at fault and, in the alternative, that any reduction in her damages would be de minimis. There was accordingly no deduction for contributory negligence. The decision serves as a useful reminder of the principles that apply in determining whether a child has been contributorily negligent. It is arguable that English law takes a “child friendly” approach to these issues, and travel practitioners will want to keep this in mind in similar cases where there are likely to be arguments on applicable law.
About the Author
Henk Soede was called to the Bar in 2019. 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 can’t let this week go by without noting that Lady Brownlie’s odyssey through the courts of England and Wales has finally passed through the Supreme Court for the second time. Sarah Prager’s commentary on the history of the matter, and the Court’s latest decision, is to be found here: https://1chancerylane.com/case-update-the-supreme-court-judgment-in-fs-cairo-nile-plaza-llc-v-brownlie-2021-uksc-45/. Although no doubt the Claimant is happy with her victory, it cannot be overlooked that it has taken nine years only to determine the issue of jurisdiction; this is very much not how the system is supposed to work, and it is to be hoped that in the light of the decisions of the Supreme Court parties will not need to spend as much time, energy and money in dealing with jurisdictional challenges in the post-Brexit claims to come.
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