The Dekagram: 7th May 2024

This week Anirudh Mandagere looks at the application of the decision of the Supreme Court in TUI v Griffiths; and Julia Brechtelsbauer looks at the reforms under way to the Package Travel and Linked Travel Arrangements Regulations 2018. It seems likely that both Griffiths and the developing law governing package travel arrangements will give rise to uncertainty in the near to medium term future – and as all lawyers know, uncertainty is the precursor to litigation.

TUI UK Ltd v Griffiths stops a dog being killed: Fitzgerald v CPS [2024] EWHC 869 (Admin)

On 29^th November 2023, civil litigation changed. The landmark judgment in TUI UK Ltd v Griffiths [2023] UKSC 48 held that a party must challenge by cross-examination the evidence of any expert witness on a material point which they claim should not be accepted by the trial judge (save for seven non-exclusive instances). In essence, a party cannot challenge or go behind an expert report which is uncontroverted.

The principle in TUI has now been raised in the administrative court, in the context of the destruction of dangerous dogs. The judgment of Fitzgerald v CPS [2024] EWHC 869 (Admin) is well worth reading in this regard. This article sets out the facts, judgments, and comments upon the implications.

The facts

The dog in question was a male bull breed dog named Yosser. He had previously been under the care of the appellant (who was later sectioned), and was then subsequently transferred to the appellant’s brother (Mr. Terry Fitzgerald). There had been three incidents in which Yosser had engaged in violent behaviour:

1. He put his mouth on a surveyor who was attending the appellant’s home.
2. He attacked another dog belonging to a member of the public, dragging him to the ground. The Magistrates made a Contingent Destruction Order (“CDO”), imposing conditions on him.
3. He jumped at another member of the public, and nipped/mouthed her arm.

The police executed a search warrant and seized Yosser. The Appellant entered a guilty plea and on 15^th December 2022, the District Judge made a Dog Destruction Order (“DDO”) in respect of Yosser. The Appellant appealed to the Crown Court.

The Crown Court Judgment

New evidence was adduced before Harrow Crown Court. This included an expert report and an unequivocal statement from the Appellant’s brother that he was willing to take care of the dog. The expert report by Ms. Helen Howell came to the following conclusions:

1. Yosser showed no signs of aggression during an invasive examination by a stranger.
2. There are no reports of Yosser showing signs of aggression during his time in the kennels.
3. The Appellant’s brother was an experienced dog owner. Ownership should be transferred to him.

The CPS responded to say that the expert report was not disputed, and there was no need for the expert to attend the appeal hearing.

Notwithstanding this, the Crown Court refused the appeal, concluding that:

1. Ms. Howell (the expert) had not viewed Yosser’s behaviour in public places.
2. Yosser had been involved in several violent incidents. Therefore, “great regard” should be given to the previous history and behaviour of the dog.
3. The past behaviour was of such great relevance that it outweighed the evidence of the expert and the Appellant’s brother.

The Judgment

An appeal was made by way of case stated. Lord Justice Coulson gave the leading judgment. He allowed the appeal. There were three separate reasons for his conclusion:

The Expert Report

First, the Crown Court failed to have proper regard to the report of Ms. Howell. There was unchallenged evidence before the court that Yosser was not a threat to public safety. The mere fact that Ms. Howell had not viewed Yosser in public spaces was not sufficient to minimise her findings. She was unable to see Yosser in public spaces because he had been detained. She would have been aware of the fact that she had not seen him in public spaces, and factored that into their conclusion. In any event, if there was a point which undermined her conclusions – she should have been asked about it.

Lord Justice Coulson reiterated that the court could not go behind the uncontroverted conclusion of Ms. Howell’s report. He ruled that this matter was closer to civil litigation than criminal litigation, and therefore the rule in TUI UK Ltd v Griffiths applied. Following that judgment, the CPS ought to have required the expert to attend for cross-examination; otherwise there was no valid reason for discounting her evidence.

The Evidence of Terry Fitzgerald

Second, the Crown Court failed to take into account the evidence of the Appellant’s brother. He provided an explanation for the incident which led to the CDO. Namely, that Yosser’s owner had been self-medicating at the time which greatly affected his judgement and character. He believed that Yosser had sensed the change in the appellant’s temperament and had grown more protective over him. This served to fortify the conclusion that rehousing Yosser would be the most appropriate solution. The Crown Court failed to properly address this in its conclusion. They gave no due consideration for the proposal to transfer ownership to him. Therefore, the decision was contrary in law.

Application of the Relevant Principles

Third, the Crown Court had failed to consider the proposed terms of any CDO. The mere fact that there had been a breach of a CDO was not a ‘trump card” which outweighed consideration of all the circumstances. There was no analysis counter-balancing all the factors, and therefore the conclusion could not stand.

Comment

There are two lessons to be drawn from this judgment. First, it serves to highlight the need to challenge expert evidence should a party wish to submit to the court that the evidence should be rejected. Second, it highlights the limits to the ‘exceptions” set out in TUI Ltd v Griffiths. While the Supreme Court averred seven non-exclusive exceptions to the general rule, practitioners should be wary of utilising these exceptions. If a party wishes to submit that unchallenged expert evidence cannot be relied upon, then they must explain (1) why there are valid reasons for departing from the expert, and (2) why it is not unfair.

About the Author

Anirudh Mandagere has a broad practice across all areas of chambers’ specialisms, acting for both claimants and defendants, and is an enthusiastic and valued member of the travel team. Before joining Deka Anirudh worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics.

The Proposed Reforms to the Package Travel and Linked Travel Arrangements Regulations 2018

The Proposed Reforms to the Package Travel Regulations [PTRs] have been a recurrent theme of our Dekagrams, and this provides another update. This Dekagram focuses on two aspects apparent from the recent discussions of both the UK and EC proposals. Firstly, the Department of Business and Trade [DBT] has seemingly abandoned a proposal which raised concerns, and eyebrows, within the travel industry. Since issues with that proposal are also found in other proposals, one may wonder how much the eventual draft legislation will reflect the ideas within the initial consultation process. It is possible the final product may be more consumer-friendly, than the UK proposal appeared on first blush. The second aspect of this Dekagram provides a brief comparison between the UK and European Commission [EC] proposals, and the impact of the DBT’s change in direction on the same.

Update – An Aspect Abandoned but Concerns Remain

You may recall Anirudh Mandagere’s article from September 2023 highlighting the proposals that have been made by the UK to the PTRs, in which he hinted at some concerns. In this update, it seems that those concerns were valid, and the Government appears receptive to them.

Minimum Cost Threshold

The Government proposed that non-flight packages below a minimum price ought not to be captured by the PTRs. This was justified on various grounds, including for example, that analogous protection for consumers is limited for credit card purchases under a certain worth. The issues with this proposal were multi-faceted, but of particular note were the following:

• The travel industry is noted for dynamic pricing; a package might be x price on Monday and y price on Tuesday. Regarding the PTRs and if a Minimum Threshold was set, this would result in significant consumer protection being lost as a result of an arbitrary difference; potentially a matter of hours.
• Having a minimum-price threshold results in the unsavoury implication that those who can only afford cheaper holidays are less worthy of protection. Of course, a cheap domestic walking holiday package has many shared risks to consumers with a lavish holiday to Dubai.
• Consumers who fall outside of the Regulations’ protective scope could be left unprotected. For example, it is possible consumers may not use a credit card, and therefore not invoking that protective regime.

Lisa Kingman at the ABTA Travel Law Seminar last week confirmed that the government will not be proceeding with this proposal. This of course demonstrates that the consultation process by the Government is working and achieving its purpose – the industry is responding, and the proposals are adapting as a result. However, the Minimum Cost threshold was just one of the proposals which has been substantially criticised, and one may wonder what the knock-on effect will be for those other proposals.

Wider Concerns

As well as the minimum cost threshold, the Competition Markets Authority [CMA] considered proposals to remove the protection for UK-only package holidays, and exempt business trips from the regulations could also “leave consumers worse off if the consequences of these changes are not communicated clearly”. The CMA published its strong concerns in February this year.

As to the domestic-package-exclusion, the CMA notes that this can cause confusion if a holiday provider offers domestic and protected foreign holidays. One can imagine that a customer may assume the same protection applies, having been subject to the protection for a foreign holiday previously. Of course, Regulations not applying to domestic holidays could leave the UK consumer less protected than an EU consumer on the same trip. Further, as has been highlighted in the industry, including at the ABTA Travel Law Conference, domestic travel packages often include vulnerable people, such as children on school trips, or elderly walking holidays. Therefore, this proposal could leave the most sympathetic consumer without protection. This proposal is also based on the perhaps misguided assumption that travel within the UK is easier than foreign travel – repatriation from the highlands of Scotland surely could cause considerable difficulties. Whilst it is true some protection may be offered through booking the holiday through a credit card, this is also a current subject of reform through proposals of amendments to the Consumer Credit Act 1974. Therefore, if this is to be a limiting factor on protection, a comprehensive macro-view of consumer protection must be taken to ensure that no one is inadvertently left behind.

The CMA notes that the business exclusion would require precise understanding on the part of the booker of the holiday. Individuals could incorrectly identify themselves as travelling for business when their purposes are in fact mixed – for example, the classic concept of “staying on” for a few days following a business trip.

Whilst proposals may enhance consumer choice and market variety short-term, the impact long-term could be transformative. Research demonstrates that package travel is favoured by consumers due to the protection it provides; should the consumer discover they are not protected, they may “vote with their feet” and trigger radical transformation in the sector.

Divergence from the EC Proposal

Sarah Prager KC gave a thorough analysis of the EC proposals in December last year, and this author can do no better than refer the reader to that Dekagram should they require more by way of background. In sum, the notable comparison is that whilst EC proposals seek to improve the quality of the legislation (for example, the abandoning on the elusive Linked Travel Arrangements concept), they do not seek to limit who is protected by the regulations. By contrast, the UK reforms appear to be maximising the post-Brexit freedom to break away from the EU’s traditional emphasis on consumer protection. The UK proposals project a differing philosophy of consumer choice and market diversity; indeed, the DBT’s aim in its call for evidence is to decide whether the Regulations strike the right balance between consumer protections and business freedoms.

It seems a motivation behind the UK proposals is to assist in the travel industry recovering post-Covid through allowing for competitive pricing; those holidays that are outside of the schema of protection can offer themselves at a cheaper price to the consumer, thereby boosting the market. However, as David Gooder, Managing Director of Tourism Economics, explained at the ABTA Regulations Conference back in November of last year, the British consumer is resilient – people are prioritising travel within discretionary spending, and the market has rebounded to pre-covid levels; despite there being higher prices in travel, rates are up relative to 2019. Therefore, a significant motivation behind the pro-business proposals may have fallen away.

A particular problem faced for the UK, as opposed to the EC proposal, is managing consumer expectations. The PTRs have been in place for a number of years, and as a result, consumers expect a certain level of protection; removing that protection therefore frustrates those expectations. Should the Government seek to row back on protections, careful consideration ought to be paid to how that is communicated – not only that the protection consumers are afforded has changed, but also the manner in which the subsequent legislation is drafted. This is of course something quite possible – perhaps taking the Consumer Rights Act 2015 as an example. The CRA was drafted with consumers as the potential reader of the legislation – though long, its wording and navigation is easily comprehensible and translates easily into every-day consumer knowledge.

Of course, the EC proposal is going through the EU legislature, whilst the DBT continues to consult, and has not yet reached the legislative stage. Bearing in mind the update above, that does suggest that there may some further room for manoeuvre. Therefore, the final products may be much more similar, rather than the current contrast between the two schemas. It appears all is still yet to be revealed.

The overall effect is clear, just as with jurisdiction and many aspects of the law post-Brexit, the metaphorical (and literal) gap between the UK and the European mainland is widening. The practical impact of this is common to consumers, businesses, and lawyers alike. First, the regulations will seemingly differ according to what is the applicable law depending on whether it is UK or EU-based. This of course results in complexity. Businesses, consumers, and lawyers cannot simply refer to the EU suite of rules to be informed about rights across Europe. It also introduces the alien concept, though common in other areas, that consumers from differing countries may go on the same package holiday but have distinct rights. Secondly, just like other areas such as jurisdiction, and serving out, the impression is a blank fresh canvas of legal landscape for the UK. This naturally produces uncertainty and unpredictability – and scope for litigation. Should the proposals remain so distinct in philosophy, it appears hard to envisage the CJEU and its case-law having significant sway in the UK in the future regarding the PTRs, though still persuasive in other areas. 

It certainly worth keeping a keen eye on the developing consultation.

About the Author

Julia Brechtelsbauer is a pupil in chambers. Before coming to the Bar, she took an LLM in Comparative Private Law at the University of Edinburgh, and during this time she also tutored tort and EU law privately at undergraduate level. Studying Law with Spanish Law at the University of Oxford, Julia came first in her cohort in EU Law and Comparative Private Law, placing 5th overall. She has also been published by the Oxford University Undergraduate Law Journal, focusing on the defence of illegality in tort law.