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Articles | Mon 13th Dec, 2021
The team has been in a festive mood this week; it’s been one Christmas party after another, each more glittering than the last. And excitement has reached fever pitch, of course, in anticipation of the 1CL festive caselaw roundup; sign up here to participate in an hour’s run-through of the year’s most important cases across 1CL’s main practice areas, including travel and cross border work.
It hasn’t all been festive good cheer for litigants, though. The CJEU and the High Court have both reached decisions disadvantageous to Claimants, the former effectively reversing Keefe, and the latter (in Apollo Ventures Co Ltd v Manchanda  11 WLUK 412) holding that even where a Defendant had submitted to the jurisdiction and then effectively delayed for two months without explanation before making an application for the court to decline jurisdiction on grounds of forum non conveniens, he had a cogent argument on forum which outweighed the fact that the Claimant had incurred substantial costs in the English proceedings, and he should be allowed to make it.
The Balloon goes Up for Claimants: Tattersall v Occidente (C-708/20) Reverses Keefe in the Court of Appeal
In what is likely to be the last ever reference of its kind by an English court under Article 267 of the Treaty on the Functioning of the European Union, the Court of Justice of the European Union handed down a preliminary ruling as to whether it is a requirement of Article 13(3) of the Brussels I Recast Regulation that, for an injured person to make a parasitic claim against the insured, the claim against the insured must involve “a matter relating to insurance”.
The Claimant, Ms. Tattersall, was staying with family in a rental villa in Alicante when she tripped and fell down an unmarked step. As a result, she suffered a fractured wrist and hip, and required surgery in Spain. She brought a claim against Seguros Catalana, the public liability insurer of the villa, and the owner of the villa, Emily Basquille. The insurance contract was governed by Spanish law, and under this law a direct claim against the insurer was permitted.
At the county court, Ms. Basquille argued that the English courts lacked jurisdiction over the claim. The issue for the court was whether the Claimant was able to issue a claim against Ms. Basquille in England on the basis that the claim was “parasitic” upon the direct claim against the insurer. On hearing submissions from both sides, the county court referred the dispute to the CJEU for a preliminary reference. Judgment was handed down on 9th December 2021.
In Mapre Mutualidad Compania De Seguros Y Reaseguros SA v Keefe  EWCA Civ 598, the Court of Appeal ruled that such joinder described above was permitted, and jurisdiction of the English court was established in these circumstances.
In a concise judgment, the CJEU confirmed that an injured party bringing a direct claim against the insurer cannot use Article 13(3) of Brussels I (Recast) to anchor jurisdiction against the insured in the same proceedings.
They came to the decision based on the nature of insurance. The special rules on insurance, as per Recital 18 of the Regulation, were designed to correct an imbalance between the insurer and the insured. The insurer is likely to be the stronger and better-financed party and therefore the insured requires special protection.
By contrast, this dispute concerned the claimant and an insured party. They were both classified as weaker parties and therefore the justification for allowing that claimant to sue the insured in the English courts did not arise.
The Recast Brussels Regulation ceased to apply to the UK as of 1st January 2021. Further, the refusal of the EU Commission to permit the UK to accede to the Lugano Convention means that this ruling does not apply to future travel law claims in EU member states. Nevertheless, this ruling by the CJEU is vitally important for travel law claims brought before that date. Keefe is no longer good authority for any submission that an insured party can be joined in a direct claim against an insurer.
About the Author
Anirudh Mandagere is a probationary tenant in chambers. He previously worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics. He looks forward to building a practice in all of chambers’ specialisms, including travel law.
The Bunting Comes out for Claimants: Bradshaw v Emirates  FCA 1407 – Australian Federal Court Confirms that the Montreal Convention sits above Domestic Law
The Australian Federal Court recently considered whether domestic limits on liability apply to a claim made under the Montreal Convention, and found that they do not.
Mr Bradshaw was hit on the head by a suitcase that fell from the overhead compartment during an international flight. He brought a claim against the airline for personal injury and economic loss under Article 17 of the Montreal Convention. Article 17(1) states:
The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Article 17 is given the force of law in Australia by Part 1A of the Civil Aviation (Carriers’ Liability) Act 1959. It is a strict liability regime, and there is no minimum threshold for injury – it is enough for a passenger to show that (s)he sustained an injury as a result of an accident on board an aircraft. A claim made relying on strict liability has a limit on damages of around $242,000, and if the claimant can prove the injury was the fault of the airline or its agents, there is no limit on damages.
The Court found that Mr Bradshaw’s claim for economic loss was not made out. Emirates accepted that Mr Bradshaw was struck by the suitcase and that he was to a limited extent injured by it, but disputed that he was entitled to any damages. It argued that because the injury caused him no economic loss, he could not recover for his injuries: it said that Part 2 of the Civil Liability Act 2002 was picked up and applied as a federal law, with the result that s.16(1) of that Act applied. Under s.16(1), a minimum threshold of injury severity must be passed for damages to be awarded for non-economic loss for personal injury if there is no associated award of economic loss. Mr Bradshaw’s injuries would not have passed that threshold.
The Court rejected the argument that the domestic limitations in s.16(1) applied. It held that
it was “well recognised that a claim under Article 17 is an independent statutory cause of action and is not a claim in either contract or tort” (at 120). Therefore, “[t]here was no need for application of the common law to carry its provisions into effect. The principles to be applied may be derived from the common law by analogy, but the damages are not common law damages; they are damages under Convention (or statute) as interpreted and implemented by domestic courts” (at 163).
The court found that to apply s.16 to an Article 17 claim would fundamentally distort, or derogate from, the structure of the Montreal Convention, which provides that damages recoverable are for “damage sustained in case of…bodily injury” and that such damages are compensatory. There is no threshold that must be passed before those damages are recoverable. The domestic regime and the Montreal Convention were substantially different, and inconsistent with one another. Limitations could not be plucked from the domestic regime and applied to claims under the Montreal Convention, and so Mr Bradshaw’s claim for general damages was successful.
It is unclear how this decision dovetails with the recent decision of Master McCloud in Silverman v Ryanair DAC  11 WLUK 158, in which the Master considered the applicable law in relation to quantification of damages under the Convention in what appears to be a more intellectually satisfying judgment grappling with the Convention’s underpinnings.
About the Author
Kerry Nicholson is a probationary tenant in chambers. She undertook pupillage with the Government Legal Department and on secondment at Henderson Chambers and is looking forward to working within the team at 1CL on travel related and other claims.
You can imagine our feelings when we read of the case of the German man who slipped and broke a thoracic vertebra when commuting down a spiral staircase from his bed to his desk whilst working from home. The Defendant employers’ liability insurance association rejected his claim on the basis that the injury had not been sustained at work. At first instance the German Social Court regarded the journey from bed to the home office as an insured operational route, but on appeal the Regional Social Court considered it an uninsured preparatory act that preceded work. The 2nd Senate of the Federal Social Court overturned this decision and restored the decision at first instance. Now that we will all be working from home under Plan B, we wonder when it will fall to the English courts to consider whether similar accidents might give rise to liability under domestic law; and whether they would follow such decisions under foreign applicable law.