The Dekagram 13th February 2023

Articles, News | Mon 13th Feb, 2023

This week the team’s spent our time discussing whether a cat is a Jack Russell or a Chihuahua, and reaching the tentative conclusion that it’s neither – it’s the magnificent king of the animals. Having cleared that up, we asked ourselves whether the pro-passenger interpretation of the Montreal Convention by the Court of Justice of the European Union might be counter-productive – and decided that it may be. This week’s articles expand upon our reasoning on both issues.

Limitation in a Cross Border Context

Bravo & Ors v Amerisur Resources Ltd (Re The Amerisur plc Putumayo Group Litigation) [2023] EWHC 122 (KB) (26 January 2023) is a significant decision of Steyn J on preliminary issues: this article focuses on the issue of the applicable statute of limitation governing whether or not the claims were time-barred.

This is a case involving claimant rural farmers in the remote Putumayo region of Colombia who seek damages from Amerisur Resources Limited for environmental damage caused by a spillage of crude oil on 11^th June 2015. The claimants’ two causes of action are pleaded under the headings: (i) guardianship of a dangerous activity; (ii) negligence. Both parties accept that the oil spillage was the result of deliberate terrorist activity by the Revolutionary Armed Forces of Colombia (“FARC”, after the initials in Spanish). The parties also agree that under Rome II Colombian law applies on the law applicable to non-contractual obligations, and that Rome II is retained EU law notwithstanding Brexit.

The limitation Issue

The first issue was whether the two year limitation period in Colombian law applicable to group actions (Article 47 of Law 472) applied to the claims. If that were the case, the last date to have brought the claims would have been 11^th June 2017 and, as such, the claims would be time-barred. The claimants contended that the applicable limitation period is the ten year period set out in Article 2356 of the Colombian Civil Code.

The claimants sought to rely on two points of English law and one of Colombian law. First, they contended that Article 47 of Law 472 is a procedural provision within the meaning of Article 1(3) Rome II, and therefore it falls outside the scope of Rome II (“the Rome II issue”). Secondly, they refuted the defendant’s contention that this action should be treated as a group action under Law 472 (“the characterisation of the claim issue”). Thirdly, even if they were wrong on both those points, they submitted that application of the time limit of Law 472 would be inconsistent with English public policy, and so the court should refuse to apply it, pursuant to Article 26 of Rome II (“the public policy issue”).

The claimants highlighted that the question of whether these English proceedings are a Colombian group action or a Colombian ordinary action must be a surreal one: in a colourful phrase, it was submitted to be akin to “asking whether a cat is a Jack Russell or a Chihuahua”. In other words it was a binary question based on a false premise – that it must be one or the other, when it is neither: it is an English action. Accordingly, the claimants submitted that if Article 47 of Law 472 is excluded from Rome II, then it follows the claim was issued in time.

However, on the Rome II issue, Steyn J held the provisions of Article 15 of Rome II should be construed widely. She held that article 15(h) undoubtedly has the effect that the applicable law (here, Colombian law) governs (i) the manner in which an obligation may be extinguished, (ii) rules of prescription and (iii) rules of limitation, and that includes, at least, any rules relating to the commencement, interruption and suspension of a period of prescription or limitation. In any event, the court ruled it to be of no consequence whether the limitation period in Article 47 would be regarded as a matter of procedure or substance: it is a Colombian rule of limitation.

This gave primacy to the characterisation of the claim issue: should this English action be treated as a Colombian group action? The court refined the key question to be whether, applying Colombian law, this action falls to be treated as a group action to which Article 47 of Law 472 applies.

First, this meant an analysis of whether there was a “common cause” requirement to the oil spill claims: the court found undoubtedly there was – given they had chosen to bring all the claims together as Putumayo farmers.

Secondly, there were a sufficient number of claimants (comfortably) to meet the “group size requirement” for a group action.

Thirdly, however, on the facts, the claimants did not choose to bring a Colombian group action; they did not invoke Law 472 or otherwise expressly state that they wished to bring such an action; more than one procedural avenue would have been open to the claimants in Colombia and they have not expressly (or even implicitly) chosen a Colombian procedural route. The court observed the pro homine principle, that being to focus on the preferred application of the most favourable law that will benefit all individuals. In a satisfying analysis, the court observed that treating the claimants as if they had erroneously chosen the procedure that is fatal to their claims (i.e. choosing a time-barred route to their action), rather than the one that is not, would not be reasonable or consistent with the pro homine principle.

As such, Steyn held that that this action does not fall to be treated as if it had been brought as a Colombian group action and accordingly is not time-barred.

On the public policy issue, Steyn J preferred the defendant’s submissions, holding that there can be no objection in principle that a two year limitation period is contrary to public policy.

Conclusion

The Claimants were unsuccessful in their arguments on Rome II’s procedural exception but were successful in their arguments on the application of Colombian law and that the claim was brought within time.

Steyn J’s conclusion [at 106] that Article 15 of Rome II “should be construed widely” and approval of a “broad approach to interpretation of article 15…” is capable of challenge. The claimants’ reliance on the Court of Appeal’s judgment in Actavis UK Ltd & ors v Eli Lilly and Co [2015] EWCA Civ 555 was pertinent given the dicta of Floyd LJ at [139]:  “I do not accept that article 15 should be given a wider effect than its language suggests, treating the listed matters as no more than examples of a class of analogous matters regarded as procedural in private international law, but now to be brought within the designated law.”

The tension was acknowledged by Steyn J and it may be that this, and other matters, will be subject to appeal.

About the Author

John Schmitt was called in 2013 and now specialises in complex personal injury work. He is also experienced in representing families at inquests in a clinical negligence context and has done so through the AvMA pro-bono inquest service. Most recently he has represented a family at a four day jury inquest at the conclusion of which the deceased’s employer was ordered to produce a Prevention of Future Deaths report. He is described by the Legal 500 as having a ‘lovely manner about him’ but being ‘as sharp as a tack’.

Cautionary tales from the coal face – JR v Austrian Airlines may do Claimants more harm than good

As Montreal Convention buffs will know, the decision of the Court of Justice of the European Union in JR v Austrian Airlines (C589/20) was handed down in June 2022, and seemed as though it may potentially broaden the circumstances in which an airline carrier would be liable for personal injury sustained on board or during the process of embarking or disembarking the aircraft.

In JR v Austrian Airlines, the Claimant fell while descending the mobile stairs off an airplane and injured herself. There was no defect with the stairs, and while they were wet, non-slip precautions had been taken. There was no other ascertainable reason why the Claimant fell. The Austrian courts doubted whether this fell within the meaning of the word “accident” for the purposes of Article 17(1) of the Montreal Convention. It referred the following question to the CJEU: whether it “must be interpreted as meaning that a situation in which, for no ascertainable reason, a passenger falls on a mobile stairway set up for the disembarkation of the passengers of an aircraft and injures himself or herself constitutes an ‘accident’, within the meaning of that provision, including where the air carrier concerned has not failed to fulfil its diligence and safety obligations in that regard.”

The CJEU held, in just 35 short paragraphs, that such a person had experienced an accident, and whether the carrier had complied with its safety obligations is “not capable of calling into question that classification”, because the carrier’s liability under Article 17 does not depend on fault or negligence. The strict liability nature of the liability must mean that a fall with no ascertainable external cause must fall within the definition of accident.

While it is true that there is no need to prove fault or negligence, Jack Harding previously highlighted the problems with this judgment:

• It arrived at its conclusions based on a non-analogous CJEU case in which there had been an obvious external event causing the injury (the spillage of coffee by a third party). The court focused on the whether the event needed to be related to aviation risks, but it did not provide any analysis.
• The CJEU did not engage with the well-established case law from multiple jurisdictions that there needs to be an external event that causes the injury. This began with Air France v Saks (470 US 392) in 1985, and has been accepted and applied consistently by most, if not all, major signatory states. Instead, the CJEU simply re-asserted that the Convention is intended to create a regime of qualified strict liability, and so the fact that there is no negligence or fault did not prevent an unexplained fall from qualifying as an accident. It further held that, in such situations, it was up to the carrier to raise the defence of contributory negligence under Article 20, which allows for a finding of 100% contribution.

Given the above, in combination with the fact that post Brexit CJEU judgments are not binding on our domestic courts, it seemed as though JR V Austrian Airlines may have provided limited assistance to Claimants when considered alongside the established and binding domestic law.

However, it is this writer’s experience that a reference to JR v Austrian Airlines may not only not assist a Claimant’s case, but, if relied upon, could actually undermine it.

In the recent High Court judgment in Arthern v Ryanair DAC [2023] EWHC 46 (KB), Mrs Justice Farbey considered an appeal relating to the definition of an accident. The facts in question related to a wet patch that was a mixture of water and de-icing fluid on the floor near the toilets that had been trekked in as a result of bad weather outside, upon which the Claimant slipped. It was the Defendant’s evidence that it is normal for such wetness to be brought in when there are bad weather conditions, and that it is normally very limited and dries quickly. The claim was dismissed on the basis it must be common and usual for planes to have to be de-iced, that therefore it is not unusual or unexpected for there to be de-icing fluid present on the tarmac, and from there, tracked into the cabin. The judge held that, from the point of view of the objective passenger, there was therefore nothing unusual or unexpected in the presence of the liquid in the cabin. The Claimant appealed on the basis that, given it was the Defendant’s evidence that normally there is not much and that it dries quickly, therefore this must be an unexpected event.

Although the Claimant’s submissions on appeal focused on the established and domestic case law, limited reference had been made to JR v Austrian Airlines. In considering the case, Mrs Justice Farbey stated:

“In so far as the judgment forms part of international law about the Montreal Convention, I have considered it. However, I do not regard it as having high persuasive value because the reasoning is brief. The judgment does not demonstrate the same degree or quality of reasoning as (in particular) the domestic appellate courts in the cases that I have cited above.”

This seems likely to be the approach of domestic courts to the case moving forward. In particular, even before it was given short shrift by the High Court, it was poorly reasoned and ignored the substantial existing case law which is necessarily crucial to the proper interpretation of an international convention.

Bearing in mind all of the above, the writer made no more than a caveated, passing reference to the case in a trial recently. The Defendant used the opportunity to raise all the above issues with the judgment, and pointed the Court towards Arthern to show that the High Court shared those concerns. While it was stressed to the judge that very limited reliance was placed upon it and that there was no dispute as to the binding, domestic case law, its discussion took up considerable court time, and created a distraction which in all likelihood undermined the force in the remainder of the Claimant’s submissions.

In short:

1. if a Claimant needs to rely on JR v Austrian Airlines to succeed, their prospects are unlikely to be good; and
2. if a Claimant does not need to rely upon it but considers that it reinforces their position, it may nonetheless be better not to mention it at all, as referencing it provides low hanging fruit for Defendants to score some easy points with the court.

About the Author

Kerry Nicholson takes instructions across all of chambers’ core areas. Prior to joining 1CL Kerry worked for the Government Legal Department working across a variety of departments in both litigation and advisory roles. She is now enjoys working within the team on travel related and other claims.