The Dekagram: 8th July 2025

In the week the Hague Convention came into force, whilst the domestic courts heard an important appeal on Covid refund claims, Anirudh Mandagere and Tom Collins bring us all the latest news both internationally and nationally. And as always, members of Deka Chambers are at the forefront of developments in law and policy.

No Causation? No Problem! The latest word on Covid cancellation claims

Case note: Eversfield Preparatory School Trust Limited v Diverse World Ltd (trading as Diverse School Travel) [2025] EWCC 33.

A recent appellate decision by His Honour Judge Tindal in the Birmingham County Court marks another victory for consumers in the long-running COVID cancellation saga.

Background Facts

In May 2019 Eversfield Preparatory School (“the School”) entered into a contract with Diverse World Ltd (“the Travel Agency”) for a school trip for 38 children aged 10-11 and four staff members, to Barcelona, to take place from 11^th to 15^th May 2020. The School paid in full by February 2020. The holiday was a “package” within the meaning of the Package Travel and Linked Travel Arrangements Regulations 2018 (“the 2018 Regs”).

On 12^th March 2020 the UK Department of Education (DoE) advised against all overseas school trips for children under 18. This was swiftly followed, on 17^th March, by the Foreign and Commonwealth Office (FCO) advising against all but essential travel abroad, and a national lockdown in the UK from 23^rd March. Spain, the destination country, had also imposed a national lockdown on 15^th March, which continued through May 2020, despite an initial review period.

Accordingly, on 1^st April 2020 the School cancelled the trip and requested a refund. The Travel Agency refused to refund more than 25% of the total price, relying on its cancellation terms.

The School asserted that it was entitled to a full refund and pursued a claim for £15,176.25 plus interest. On 4^th October 2024 the matter came before a Deputy District Judge for a fast track trial. The claim was dismissed. The School appealed.

“Unavoidable and extraordinary circumstances”

The School asserted that it was entitled to a full refund, and that the Travel Agent had wrongly applied a 75% termination fee, contrary to Regulation 12(7) of the 2018 Regs, which implements Article 12(2) of the EU Package Travel Directive 2015/2302 (“the 2015 Directive”). Regulation 12(7) provides that:

‘…in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and which significantly affect—

(a)the performance of the package, or

(b)the carriage of passengers to the destination,

the traveller may terminate the package travel contract before the start of the package without paying any termination fee.

The issue was complicated by what by Judge Tindal described as the “perfect precedent storm” created by Brexit. Because the cause of action accrued before the end of 2020, the case fell into a category where EU Law, including the 2015 Directive, still had “indirect effect” on domestic legislation. However, all relevant Court of Justice of the European Union (CJEU) decisions on Article 12(2) of the 2015 Directive were delivered after the UK’s departure from the EU, meaning they were not strictly binding but could be “highly persuasive”. This created a complex interplay between non-binding CJEU authority and a divergence of approaches among County Court judges.

The Grounds of Appeal

The School appealed, principally, on the grounds that:

1. The DDJ erred in law by finding that Regulation 12(7) only granted a right to cancellation and refund if the holiday was cancelled solely due to unavoidable and extraordinary circumstances at the destination.
2. The DDJ erred in finding that the evidence did not show the global Covid pandemic constituted unavoidable and extraordinary circumstances in Spain that would significantly affect the package holiday or carriage of passengers.

The Arguments on Appeal

The School argued that the DDJ wrongly applied a “causation test,” particularly a stricter “sole causation” test, by stating that the cancellation had to be “solely because of something arising at the destination”. It contended that Regulation 12(7) did not require a causal link between the circumstances and the cancellation, but rather set out “conditions precedent” for a fee-free termination.

The Travel Agency contended that the DDJ did not apply a causation test but rather a “reasons test” or simply focused on the lack of sufficient evidence for a “destination UEC” (unavoidable and extraordinary circumstances at the destination). He emphasized the importance of assessing the situation at the date of cancellation without hindsight and argued that official restrictions at the destination were necessary proof.

The Court’s Decision on Appeal

Allowing the appeal on the first two grounds of appeal, His Honour Judge Tindal found that the DDJ committed several errors of law – he awarded the School a full refund. In reaching its decision, the Court:

• Emphatically rejected both the “causation test” and the “reasons test”. He agreed with HHJ Malek in Our Lady & St John’s Catholic College v Acorn Travel Group [2025] EWCC 6 that these were “impermissible glosses” on Regulation 12(7). He stressed that the wording of the regulation focuses on objective preconditions (“in the event of”), not subjective reasons or causal links. This aligns with the CJEU’s emphasis on objectivity in MD v Tez Tour [2024] Bus LR 1024.
• Concluded that official travel restrictions are merely evidential, not determinative, of a “destination UEC”. He found that the DDJ erred in effectively requiring proof of official restrictions in Barcelona, particularly given Mr. Gardiner’s (the Travel Agency’s witness) admission that a Spanish national lockdown, including Barcelona, was in place on 1^st April 2020. This interpretation aligns with CJEU rulings in Que Choisir [2024] 1 CMLR 43 and MD.
• Affirmed that the “significant effect” on performance or carriage must be assessed objectively and prospectively at the date of cancellation, without the benefit of hindsight. He adopted the test from QM v Kiwi Tours [2024] Bus LR 1045, asking whether “an average traveller, who is reasonably well-informed and reasonably observant and circumspect, could reasonably take the view that the unavoidable and extraordinary circumstances…would probably have consequences significantly affecting the performance of his or her package or for the transfer of passengers to the travel destination”. He also noted that circumstances at the departure point and personal circumstances of travellers can be relevant to this assessment. Applying this test, Judge Tindal concluded that the Covid-19 situation in Barcelona and the UK, combined with the nature of the school trip, undeniably met the “significant effect” threshold.

Implications for Travel lawyers

Although not binding, this judgment offers important guidance for travel lawyers still grappling with runoff Covid cancellation disputes (or cancellations due to unforeseen circumstances more generally). It emphasises the following points:

• Travellers are not expected to hold off cancelling until the last minute if there is a reasonable prospect that the trip will be significantly affected.
• The “significant effect” is assessed prospectively and objectively at the date of cancellation, without the benefit of hindsight. The traveller does not need to prove either that (i) the extraordinary circumstances were causative of the affected performance or (ii) that the affected performance was the reason for wishing to cancel.
• Travellers are not dependant on official government advice or restrictions to prove “unavoidable and extraordinary circumstances.” Other credible evidence, such as widespread public knowledge may be sufficient.
• The test for a traveller’s cancellation under Regulation 12(7) (“significantly affect”) is distinct from an organiser’s cancellation under Regulation 13(3) (“prevented from performing the contract”).
• While not legally binding on English and Welsh Courts, in cases where the cause of action post-dates Brexit (31^st December 2020), post-2020 CJEU decisions are “highly persuasive”, particularly where they reflect an established line of pre-2021 CJEU cases or a consistent line of post-2021 decisions from the ultimate authority on EU Law

The Court’s careful and well-reasoned decision in this case provides welcome clarity for consumers.

Conor Kennedy of Deka Chambers appeared for the successful appellant, instructed by Grace Berry at DAC Beachcroft. A copy of the judgment is available on request.

About the Author

Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions. In recent years he has appeared in a number of landmark appellate decisions on jurisdiction, as well as the last ever reference by a UK court for a preliminary ruling from the CJEU. 

The Hague Convention is now in force!

On 1^st July 2025, private international law changed. The Hague Convention of 2019 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (“Hague Convention”) has entered into force in England and Wales. This means that it applies to the enforcement of judgments given in proceedings commenced after this date. It goes some way to rectify difficulties with enforcement after British withdrawal from the European Union.

Cross-border enforcement: proceedings issued prior to 1^st July 2025

Judgments from EU member states are enforceable under the Hague Convention (2005). However, this only applies to judgments with a qualifying exclusive jurisdiction clause. The following jurisdictions are covered under the pre-existing statutory regimes:

1. Administration of Justice Act 1920. This covers judgments from the Bahamas, Barbados, Bermuda, the British Virgin Islands, Cayman Islands, Jamaica, Malaysia, New Zealand, Nigeria, Singapore, Sri Lanka and other Overseas Territories.
2. Foreign Judgments (Reciprocal Enforcement) Act 1933. This covers judgments from India, Pakistan, Australia, Canada (except Quebec and Nunavut), Tonga, Guernsey, Isle of Man, Austria, Belgium, Germany, France, Israel, Italy, the Netherlands, Norway, and Suriname. For EU countries, there is an argument (albeit unlikely) that the 1933 Act applies in the absence of a specific agreement.
3. Common Law Regime. At common law, a judgment creates an obligation which can be enforced as a debt in fresh legal proceedings in England. This would require service of proceedings out of the jurisdiction (CPR PD6B, para 3.1(10)).

Accordingly, the status quo is that victims of cross-border injuries will need to rely upon domestic rules of enforcement. This generates uncertainty, delay and additional cost. As cross-border practitioners are well aware, the withdrawal from the European Union has exacerbated these problems given that the UK can no longer rely on this framework. The Hague Convention 19 will significantly reduce the exigencies required by domestic methods of enforcement.

What is the Hague Convention (2019)?

This Convention is intended to simplify the recognition and enforcement of judgments for litigants in the UK and in other jurisdictions that accede to the Convention. This includes the European Union (excluding Denmark), Uruguay and Ukraine. It has been signed, but not yet ratified, by other states, including the United States and Russia.

Article 4 of the Hague Convention (2019) provides as follows:

1. A judgment given by a court of a contracting state shall be recognised and enforced in another contracting state.
2. There shall be no review of the merits of the judgment in the requested State. There may only be such consideration as is necessary for the application of the Convention.

Article 5 of the Hague Convention 19 sets out the minimum requirements for a judgment to be eligible for recognition. Examples include that the defendant was habitually resident there (Article 5(1)(a)), or that they were found liable for the tortious harm (Article 5(1)(j)).

Article 7 provides that a judgment be refused enforcement on grounds including fraud (Article 7(1)(b)), that it is manifestly incompatible with public policy (Article 7(1)(c)), or that it was inconsistent with a judgment given by a court of the requested state (Article 7(1)(e)).

As a matter of procedure, the party seeking recognition and enforcement must produce a certified copy of the judgment and documents to establish that the judgment has effect in the state of origin (Article 12(1)(a/c). In the case of a default judgment, the requesting party must also include an original or certified copy of a document establishing that the document instituted proceedings or an equivalent document was notified to the defaulting party (Article 12(1)(b)).

What are the limitations of the Hague Convention 2019?

The Hague Convention 2019 is not a panacea for the difficulties of cross-border enforcement. The Association of Personal Injury Lawyers (APIL) have identified a number of lacunae within this framework:

The tort gateway and indirect damage

Under Article 5.1(j), for a claim in tort to succeed, the damage must have occurred in the state of origin, irrespective of where the harm occurred. APIL have identified that cross-border victims who fall under the following circumstances may find that their judgments are unenforceable because of the tension between the gateway and Convention requirements:

• A claimant relies upon an alleged tort as the basis for their claim.
• They bring a claim for damages under the tort gateway at CPR PD6B para 3.1(9)(a).
• They rely on the fact that they are suffering ongoing losses and indirect financial consequences as a result of going abroad (under FS (Cairo) (Nile Plaza) LLC v Brownlie [2021] UKSC 45).

There is an open question as to whether a claimant in that situation can rely on the Hague Convention 2019 because the Convention requires the “act or omission” to have occurred in the state of origin of the judgment. The countervailing argument is that a distinction ought to be drawn between ‘act’ in the state of origin and the ‘consequences’ which are in the state of judgment. Nevertheless, practitioners must consider this issue properly before relying upon the Hague Convention 19.

Fatal Accidents

Article 5.1(j) provides that the harm must be “directly caused”. The risk is that enforcement of a judgment pertaining to loss of financial dependency on the deceased is precluded because such losses are ‘indirect’. This position is open to debate, especially given that a financial dependency claim ‘arises from death’ and therefore could fall within scope.

The Public Policy Exception

In the past, some foreign courts have been reluctant to enforce English judgments on the basis that the costs generated were excessive. For example, the Greek Court of Appeal has previously ruled against enforcement of an English costs award on the basis that costs were excessive. While this judgment was overruled by the Greek Supreme Court, it raises the issue that a defendant in another jurisdiction may seek to deploy similar arguments.

Carriage of Passengers and Goods

Article 2.1(f) excludes the carriage of passengers and goods from the Hague Convention 2019. This exclusion means that a passenger in a road traffic accident cannot rely on the Convention to enforce a judgment for damages.

Interim damages, costs awards and preliminary requests for disclosure

Under Article 3(1)(b) of the Hague Convention 2019, the definition of “judgment” excludes interim measures. Accordingly, interim payments (which are vital to fund care costs and rehabilitation) are excluded from the ambit of the Convention.

Concluding Thoughts

The ultimate goal must be for the UK Government to rejoin the Lugano Convention to fill the gaps left by British withdrawal from the European Union. Only when the Lugano Convention is rejoined can those who have suffered injury abroad be put in the same position as prior to withdrawal from the European Union.  

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. He is ranked as a “rising star” in the Legal 500, where he is described as “clear, knowledgeable and informative to clients. He also has “a kind touch with all clients to give them reassurance and support”.