The Dekagram: 9th March 2026

This week brought the news we’ve all been waiting for – yes, the proposed amendments to the Package Travel and Linked Travel Arrangements Regulations 2018 have finally been published! The Package Travel and Linked Travel Arrangements (Amendment) Regulations 2026 As well as being every bit the rollicking good read you would expect, the Powers That Be have taken heed of the existential despair prompted in litigators and industry professionals alike by the concept of ‘linked travel arrangements’, and propose scrapping them. Other than that, the proposals are modest indeed, save for the clarification of the Regulation 29 right to redress, already clarified in fact by the High Court in the context of the Covid-19 air travel refund litigation. Still, it’s nice to know one was right all along. It will interesting to see whether the EU proposals to amend the underlying Directive follow a similar course; but one thing is for certain – once the amendments come into force, divergence is inevitable, whether by legislature or by judicial intervention.

It is with a weather eye on the Court of Justice of the European Union that Kerry Nicholson considers this week whether the driver of a vehicle can ever lose his or her status as driver as a result of the actions of a passenger, a question with important repercussions for insurers and insureds alike. Domestically, but still with an international outlook, Thomas Yarrow brings us up to date with the latest authority on taking videolink evidence from abroad.

ECJ confirms: there is no such thing as a back seat driver

The European Court of Justice was asked to consider whether the driver of a vehicle that crashed because a passenger pulled the handbrake on unexpectedly remained a driver for the purposes of compulsory insurance.

European Directive 2009/103 (“the Directive”) requires Member States to make it compulsory to insure motor vehicles, which must “cover liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle” (Article 12).

The domestic law in the Netherlands which implements the Directive states “[t]he insurance need not cover liability for damage caused to the driver of the motor vehicle causing the accident’.

The underlying facts of the case were that a man, “ED” had been driving a minibus owned by a football club, and that one of the passengers had unexpectedly pulled the handbrake. ED and one of the other passengers were ejected from the minibus as a result, the latter dying and the former sustaining significant injuries. The football club had taken out compulsory insurance, which did not cover any liability for damage suffered by the driver. ED’s claim against the insurance policy was refused on the basis that he was the driver of the minibus and therefore excluded.

ED brought an action seeking a declaration that he was not excluded from cover as, although he had been behind the wheel of the vehicle at the time, he could no longer be regarded as the driver because, by pulling the handbrake and causing the accident, the passenger had acted as the driver. ED was successful at first instance but that was overturned on appeal. ED appealed to the Supreme Court of the Netherlands, who referred the following question to the European Court of Justice for a preliminary ruling:

Is Article 12(1) of [Directive 2009/103] to be interpreted as requiring compulsory insurance to cover liability for the (initial) driver’s damage in a case where a passenger interferes with the [driving] of the motor vehicle and an accident occurs as a result of that intervention?

In answering that question, the ECJ noted the following:

• for the purpose of interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (at [23]);
• determination of the meaning and scope of terms for which EU law provides no definition and in respect of which it makes no reference to the law of the Member States must be determined by reference to their usual meaning in everyday language (at [24]).

The Court found that, while there may be multiple passengers, there can only be one driver at a time, and that is normally the person behind the wheel/controls of the vehicle. The Court also noted that, while a passenger may do something that plays a role in causing an accident, and that Member States can reflect that in relation to civil liability, that is distinct from compulsory insurance for the purpose of the Directive (at [35]):

In that regard, the Court has repeatedly held that the obligation to provide insurance cover against civil liability for damage caused to third parties by motor vehicles is distinct from the extent of the compensation to be afforded to them on the basis of civil liability. Whereas the former is defined and guaranteed by EU legislation, the latter is, essentially, governed by national law.

Having taken all this into account, the Court concluded that Article 12 must be interpreted as meaning a passenger’s intervention which causes an accident cannot deprive the driver of the vehicle of their status as driver (at [36]). The Court highlighted that the objective of the Directive would be undermined, “If, depending on random factual circumstances, the person at the wheel of a vehicle could lose his or her status as driver because of a passenger’s intervention” (at [39]). It also noted that the legal uncertainty that would inevitably flow from such a finding was in itself incompatible with the objective (at [40]).

About the Author

Kerry Nicholson takes instructions across all of chambers’ core areas. Prior to joining Deka chambers 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.

Article on Video-link evidence from abroad

With the current recent extraordinary news cycle, one might be forgiven for having this week missed the diplomatic incident that has flowed from Nicklin J’s interim judgment in the Associated Newspapers litigation and its unexpected foray into the procedural difficulties which can and frequently do arise in cross-border litigation – Baroness Lawrence & Ors v Associated Newspapers Ltd [2026] EWHC 451 (KB) (26 February 2026). The judgment tackled the well-known problems practitioners encounter in this field of the taking of evidence from witnesses overseas by video-link; but oddly the judge referred to few domestic authorities in reaching his conclusion which is perhaps at odds with what many of us might consider to be the present orthodoxy on the issue.

The judge was considering a particularly esoteric set of facts – the relevant witness was outside the jurisdiction and unwilling to travel to the UK to give evidence (so far so normal), but also unwilling to disclose his location for safety reasons. It was, however, known that he was not located in a jurisdiction which was party to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters.

The starting point for the judge’s focus was the uncontroversial interests of justice test on the giving of evidence remotely by video-link per se, and there is not a great deal of note in his judgment in this regard. However, when it came to the cross-border element, his findings and analysis are certainly capable of raising an eyebrow. In the early parts of his judgment, he did note and quote paragraph 4 of Annex 3 to Practice Direction 32, which refers to the party arranging the video-link being “required to make all necessary inquiries” about whether there are objections at the diplomatic level from the jurisdiction from which the witness is expected to give evidence (again, so far so normal). But by the latter part of his judgment this paragraph seems to have been forgotten, and the diplomatic issues (and process for resolving them) entirely subsumed beneath the pure questions of law.

Nicklin J focused heavily on the case of Joyce -v- Sunland Waterfront (BVI) Ltd [2011] FCAFC 95 – an Australian case which had held that where the giving of evidence was the voluntary act of a person without seeking the assistance, facilities, or authority of the foreign state, that ‘does not constitute an exercise of judicial power on foreign territory and does not, of itself, infringe the sovereignty of the foreign state’ (Nicklin J’s summary at §33-34). He followed such in finding that ‘concerns over comity do not prevent my granting permission’ and ‘the law of England & Wales […] does not make it a pre-condition for the grant of permission for the use of video-link from a foreign jurisdiction that the foreign state consent to the giving of such evidence’ (§43). For Nicklin J, the key issue was not one of diplomacy but simply of law.

That might be correct, but it is hard to see how such a conclusion does not ride rough-shod over Annex 3 to the Practice Direction (which itself has status in law) for which diplomatic considerations are expressly a key concern, and a requirement and process is clearly specified. While the case of R (Raza) v SSHD [2023] EWCA Civ 29is authority from the Court of Appeal that it is not that ‘the taking of video evidence from abroad without the permission of the state concerned is unlawful, or that it makes the hearing a nullity’, rather that ‘the sanctions for such conduct are diplomatic, not legal’; that case did not give carte blanche to ignore the provisions of the Practice Direction, but rather considered what the post breach position in law would be.

Nicklin J’s judgment seems to go further (without referring to Raza, or the cases and guidance cited therein), and does seem to make the requirements of the Practice Direction entirely toothless. Nicklin J’s suggestion appears to be that if the foreign jurisdiction allows evidence to be given remotely by video-link per se as a matter of its own law, and the interests of justice test is passed for remote evidence to be given, then the consent of the foreign state can be entirely bypassed.

Although it can fairly be said that paragraph 4 of Annex 3 is only a duty of process and not of outcome, since it is framed as a requirement to ask not to get an answer (and practitioners will know, it is seldom that an answer comes), Nicklin’s judgment seemingly relegates it to an even lower status than a tick-box exercise; or goes further, perhaps, and suggests that even if the answer comes back “no”, it matters not.

It may be that the decision can be reconciled by reference to Nicklin J having noted 30 paragraphs earlier that there was in fact advice in his case from local lawyers that there was no diplomatic objection to the witness giving evidence by video-link to the English courts – but of course diplomacy is not the domain of lawyers(!), which is why the Annex directs us to make enquiries of the FCDO (i.e. diplomats) not foreign attorneys in answering the question of consent.

In the meantime, this judgment will be useful reference fodder for parties in cross-border claims who have witnesses in jurisdictions which are known to take diplomatic objections to them giving evidence. It would seem according to Nicklin J, where the witness is participating voluntarily without the apparatus of the state, the protestations are de rien.

About the Author

Before coming to the Bar, Thomas worked as a Civil Servant, including as a policy advisor at the Brexit Department. His former experience gives him an encyclopaedic knowledge of legislation, treaties and international conventions in the field of Private International Law, which he has applied to his cross-border practice, building a reputation as a go-to barrister for complex questions of jurisdiction and applicable law. He wrote the relevant chapter on such in the latest edition of the leading practitioner textbook, Saggerson on Travel Law and Litigation. His travel practice spans cross-border personal injury, commercial disputes and consumer protection. He is listed in the Legal 500 as a Rising Star in the administrative law and human rights and personal injury categories, and as a leading junior in the law relating to sanctions. He is described by the Legal 500 as being ‘very sharp, with fantastic attention to detail’, and with ‘excellent knowledge of public law and human rights, with experience in a wide range of areas, from sanctions to cutting edge issues such as state use of facial recognition’.