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Articles | Tue 19th Apr, 2022
What a lovely weekend! Cunningly this year the team refrained from taking our usual Easter trip to the seaside, enabling us to make the most of the four day break by staying at home and lounging around on the 1CL deck chairs supping the official 1CL cocktail (the French 55, since you ask). And it’s just as well we did, what with the entirely foreseeable Travel Chaos plaguing airports and roads. This week’s Roundup focusses on would-be travellers both in the holiday context and as witnesses; suffice to say that there seems to have been a shift in the courts’ approach to the latter, and just this week a member of the team was surprised to find that a judge in a lowish value multitrack case was unwilling to allow French lawyers to give evidence by videolink, requiring their attendance at trial to explain the operation of the Dintilhac tables. Quelle surprise!
Holiday Travel Chaos: Which? calls for fines over travel disruption
City A.M. reports that UK passenger disruption over Easter has renewed calls from consumer rights champion Which? for greater enforcement powers for the Civil Aviation Authority. An overburdened and under resourced HMCTS, plus the usual hassle and irrecoverability of costs in the small claims track, mean that consumers are too often left without an effective remedy for delays and cancellations.
We wrote about Which? passing 14,000 complains to the CAA in July 2020 (https://1chancerylane.com/the-weekly-roundup-powers-of-prognostication/), and subsequently about enforcement action against an airline by the CAA under the Enterprise Act 2002 (here: https://1chancerylane.com/the-weekly-roundup-the-de-la-soul-edition/), but Which? reports that consumers are still being ignored or left out of pocket by airlines.
Last year’s CAA Response to the government’s Consultation on Reform of Competition and Consumer Policy commented that the powers under Part 8 of the Enterprise Act 2002 were “time consuming, resource intensive, and do not, in too many circumstances, provide a strong deterrent against bad behaviour from businesses determined to benefit commercially from non-compliance”. The report further supported strengthening enforcement by allowing direct enforcement of consumer protection law rather than through the civil courts (comparable with the powers of Ofcom and the FCA).
Only a fraction of wronged consumers seek formal redress for delayed or denied boarding, and there are insufficiently significant costs or penalties for airlines which drag their feet on compensating passengers. It seems inevitable that further powers and sanctions will need to be made available to the CAA, although it is not clear when the government will have the necessary bandwidth to implement the required amendments to enforcement legislation. It may be that matters will reach boiling point around the summer holidays later this year. Until the costs of sanctions exceed the financial benefits of breaching consumer rights, rational airlines may conclude that ignoring their consumer obligations is a certain route to maximising profit margins.
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.
Litigation Travel Chaos: Taking evidence from foreign witnesses
We previously wrote about the recent decision in Jackson v Hayes & Jarvis (Travel) Ltd  EWHC 453 (QB), where a defendant was refused permission for its witnesses to give evidence via video link from abroad (https://1chancerylane.com/the-weekly-roundup-the-de-la-soul-edition/). This week, the implications of Jackson were revisited in Horlick v Cavaco  4 WLUK 166 (QB).
The Claimants had brought claims against the Defendants seeking the repayment of loans and/or unjust enrichment. Two of the defendants’ witnesses lived in Mozambique. In March 2022, the defendants applied for permission for these witnesses (W1 and W2) to give evidence via video link from Mozambique. The defendants notified the claimants of this and sought the application to be agreed by consent. The Claimants sent holding responses to consider their response, but during that time the Master granted the application on the papers. The Claimants thereafter indicated their opposition to the application and served evidence in support.
The matter later came before Butcher J. Butcher J referred to Jackson and noted that an order to permit evidence via video link would not be made simply for a witness’s convenience. The appropriate course was to consider each witness separately.
In terms of W1, he was 85 years old required radiotherapy for prostate cancer. He had subsequently been declared unfit to fly. His evidence was anticipated to take 2.5 hours, however it was not known exactly what date he would give his evidence, as the trial date was floating. In the circumstances, the Court considered that it would be in accordance with the overriding objective for W1 to give his evidence via video link.
The same could not be said for W2. Unlike W1, she was able to travel. Her evidence was also anticipated to take longer than W1’s evidence. The only argument in favour of her giving evidence remotely was that it was more convenient, as the link would already be established for W1. However, the circumstances that existed for W1 did not mean that a less satisfactory method of giving evidence should be used for W2. Consequently, the Master’s order was set aside in part, insofar as it related to W2.
Both Jackson and Horlick show that if witnesses wish to give their evidence from abroad, they should have good reasons for doing so. Without any good reasons, or indeed any evidence in support of the need to give evidence remotely, it is unlikely such an application will succeed.
About the Author
Ranked by the Legal 500 2021 and 2022 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.
By now our readers will be aware that 1CL will be merging with 9 Gough Chambers in the Autumn. How we’ve kept our news quiet til now is anyone’s guess; we can only conclude that each and every one of the team is the very soul of discretion, but of course we knew that already. Now that we’re empowered to speak, please do get in touch with any questions or thoughts on the merger you may have, and we will do our best to answer them. We are of course open to ideas about the Launch Party, the more outlandish the better. And what better way to introduce our new friends to our readers than the Weekly Roundup? Look out for guest appearances in these pages from members of the 9GC travel and cross border team in the months to come.