X v Kuoni: Supreme Court unanimously allows Claimant’s appeal

The Supreme Court has handed down judgment in X v Kuoni Travel Ltd (ABTA intervening) [2021] UKSC 34, unanimously finding in favour of the Appellant. It follows the ruling of the CJEU in March of this year.

We previously blogged about the first instance decision, the Court of Appeal’s decision, the interim judgment of the Supreme Court, and the Advocate-General’s Opinion.

The Respondent was represented by William Audland QCNina Ross and Achas Burin of 12 King’s Bench Walk on instructions from Gary Tweddle at MB Law.

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Permission to appeal granted in struck-out Fundão Dam Disaster Litigation

We previously blogged about Turner J’s decision to strike out the Fundão Dam Disaster Litigation. Coulson LJ then refused permission to appeal that decision on paper. The claimants applied for Coulson LJ’s decision to be re-opened on the basis of the court’s exceptional powers to avoid injustice pursuant to CPR r. 52.30.

The Court of Appeal has granted that application and now given permission to appeal following a hearing before three appeal judges.

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Beyond Visual Line of Sight (BVLOS) drone use is coming. What should insurers be doing?

In this blog post, Patrick Vincent QC and Max Archer of 12 King’s Bench Walk explain the imminent challenges for insurers arising out of the rapid rise of drone technology. The proper regulation of drone use and its implications for insurers has quickly developed into a transnational legal issue generating ongoing discussions between lawyers, lawmakers, and insurance industry representatives from around the world.

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Expert foreign law evidence … or judicial roulette?

We have previously blogged about the need for parties to litigation to follow the proper formalities in order to rely on expert foreign law evidence.

In Pescatore v Valentino & Ors [2021] EWHC 1953 (Ch), HHJ Paul Matthews set out the position again:

Before I turn to deal with the application for an injunction, I should say this. There was no direction for expert evidence of Italian law or procedure, and therefore no such admissible evidence before me. Some of what Avvocato Giambrone says in his witness statement might be seen as bordering on expert evidence of Italian law. But even if there had been a direction for such evidence, he as the respondents’ lawyer would obviously not have the necessary independence to give it.

HHJ Paul Matthews was hearing a claim for an anti-suit injunction in the context of related litigation in Italy. An assessment of Italian law was relevant to the question of whether the Defendants would be deprived of a juridical advantage if an injunction were granted against them.

Despite there being no formal foreign law evidence, the judge decided to take “judicial notice” of some of the different features of property and inheritance law in civil law jurisdictions as against England and Wales.

Given that the content of foreign law is generally treated as a fact which must be proved by evidence, why did he do this? And does this approach open the gates for future parties to plug gaps in their cases in this way?

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Post-Brexit edition of Butterworths Personal Injury Litigation Service published

The “Accidents Abroad” Division of practitioner text Butterworths Personal Injury Litigation Service has for some years now been written and edited by members of 12 King’s Bench Walk’s International & Travel Team.

Earlier this year, I worked with cross-border guru Philip Mead on the first post-Implementation Period version of the Division, building on last year’s excellent work by Elizabeth Boulden, Charley Turton, Spencer Turner, and Christopher Fleming, with oversight from David Green.

It is one of the first major personal injury law textbooks dealing with the changes brought about by the Trade and Cooperation Agreement, the new rules on service, and the complex transitional procedural provisions following the UK’s ejection from the Brussels-Lugano system.

The key change we have made is that the Section dealing with “Accidents with a foreign element” no longer includes a structure based on a core division between accidents falling under the Brussels-Lugano regime and accidents falling under the CPR service gateways.

The new structure is instead split into easily identifiable scenarios, with a focus on providing practical advice for lawyers who encounter these claims. The scenarios are:

  • Defendant domiciled in Scotland or Northern Ireland
  • Jurisdiction in relation to consumer contracts and in relation to individual contracts of employment
  • Proceedings against EU and EFTA-domiciled defendants issued and served by 31 December 2020
  • Proceedings against EU and EFTA-domiciled defendants issued but not served by 31 December 2020
  • Proceedings against (i) all non-EU and non-EFTA-domiciled defendants and (ii) EU- and EFTA-domiciled defendants issued after 31 December 2020

The new edition is available online on the LexisNexis website. Any comments or requests for the inclusion of additional content in the next edition are of course always gratefully received.

European Commission backs Hague Judgments Convention

We start the week with one eye on the future. On Friday, The European Commission adopted a proposal for the EU to accede to the Hague Judgments Convention.

Didier Reynders, European Commissioner for Justice, said:

Having one’s rights enforced in a country outside of the EU can be very cumbersome, both for private persons and for businesses. The EU joining the Hague Judgments Convention would improve legal certainty and save citizens and companies time and money. The average length of proceedings would decrease considerably.

The Convention, which facilitates the recognition and enforcement of judgements in civil and commercial matters, could go some way to plugging the enforcement gap left by the UK’s departure from the Brussels-Lugano regime.

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An English fatal accident claim with a Spanish twist

In Chouza v Martin & Ors [2021] EWHC 1669 (QB), Martin Spencer J considered a number of interesting issues arising out of a fatal road traffic accident. John-Paul Swoboda of 12 King’s Bench Walk represented the Claimant.

Although there was no foreign applicable law in this case, the judgment depended heavily on expert foreign law evidence to assist with quantification of the claim according to English law principles. It is a reminder that the need for foreign law evidence is not necessarily restricted to “standard” cross-border claims: it may also be vital in proving the quantum of losses recoverable in English law claims by the estate and the dependants.

In this blog post, Richard Ive, a pupil at 12 King’s Bench Walk, considers the interplay between English law quantification and the relevant foreign law. Although this blog post focuses only on the “international” aspects of this judgment, it is worth noting that the case also contains many additional interesting points concerning the nature of dependency and other issues in fatal accident claims, which make it worth reading in full.

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EU: Lugano is off the table

We previously blogged about reports that the European Commission had advised the EU not to allow the UK to accede to the Lugano Convention.

On 1 July 2021, Switzerland, in its capacity as depository of the Convention, notified the Parties to the Convention that the EU has formally withheld its consent to the UK’s accession:

With reference to its notification of 14 April 2020, the depositary informs that, by communication received on 28 June 2021, the European Union notified not to be in a position to give its consent to invite the United Kingdom to accede to the Lugano Convention (see enclosed note verbale of 22 June 2021).

The EU note verbale withholding consent is available here.

Inquests overseas: common issues and how to get around them

I am grateful to Natasha Jackson of 3 Hare Court for letting me feature this excellent article on inquests overseas and their interaction with the process in England and Wales. The article first appeared in 3 Hare Court’s Travel & Aviation Quarterly, which can be accessed here.

Inevitably a coroner conducting an inquisition into a death abroad will be faced with difficulties of evidence and so on, but that must have been so ever since the statute of George II … Coroners are well experienced [in] dealing with such problems.

R v West Yorkshire Coroner, ex parte Smith [1983] QB 335, per Lord Lane CJ

Inquests and inquiries into deaths that occurred out of the jurisdiction give rise to a number of particular complexities. This article looks at some of the issues that practitioners may want to consider when acting in an inquest involving a foreign death.

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