Ryanair challenges travel traffic light system

Something of a newsflash for those yet to see today’s headline story that Ryanair and Manchester Airports Group are launching a legal action over the government’s travel traffic light system.

According to the report, the challenge ‘has been put together after huge frustration within the travel industry at the inclusion of Portugal on the green list in mid-May and then its sudden removal a few weeks later.’ The action apparently enjoys substantial backing in the travel industry, and ‘further signatories to the challenge are set to be revealed on Thursday.’

Whether the prospect of this challenge will force the government to relax the current restrictions on travel in time for the summer holidays remains to be seen. We will of course blog on updates about the nature of the challenge as soon as further details are released.

Greenaway v Parrish: full decision on post-Brexit approach to EU Directives released

We previously blogged about the case of Greenaway & Rocks v Covea Insurance & Others. This was a case in which the various parties were represented by Patrick Vincent QC and Cressida Mawdesley-ThomasPhilip Mead, and Richard Viney, all of 12 King’s Bench Walk.

It is the first decision of which we are aware grappling with the difficult issue of how English courts are now to approach the interpretation of EU Directives.

The full text of the decision has now been released under the citation: Greenaway v Parrish & Ors [2021] EWHC 1506 (QB).

For those interested in a criticial view of the decision, it is worth reading this interesting case note by members of Outer Temple Chambers. They argue that, not only was the judge’s approach not justified under EU law principles as they stood prior to the UK leaving the EU, but it ‘also appears to be prohibited under the European Union Withdrawal Act 2018’.

Court of Appeal: continuing role for EU law supremacy in certain cases

In The Open Rights Group & Anor, R (On the Application Of) v The Secretary of State for the Home Department & Anor [2021] EWCA Civ 800, the Court of Appeal considered an appeal concerning the lawfulness of statutory restrictions on data protection rights, in the context of immigration.

The point of interest for this blog is the Court’s comments on the continuing relevance of the principle of the supremacy of EU law to cases involving conflicts between retained EU law and pre-exit domestic legislation.

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Dutch court rules on Rome II and applicable law in climate change cases

In what can be described as a truly historic judgment, the Hague District Court ruled yesterday in Milieudefensie et al. v. Royal Dutch Shell (Judgment of 26 March 2021) that Royal Dutch Shell must slash its CO2 emissions (by 45% by 2030 from 2019 levels).

Of course, the most interesting part of the judgment is the court’s analysis of the applicable law under article 7 of Rome II. This provision, which deals with “Environmental damage” (the meaning of which caused all kinds of problems in a recent English case), says this:

The law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred.

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European Commission formally advises EU to block UK Lugano accession

We previously blogged on reports that the UK’s bid to accede to the Lugano Convention had been opposed by the European Commission at a closed-door meeting with EU diplomats.

The Commission has now released its “Assessment on the application of the United Kingdom of Great Britain and Northern Ireland to accede to the 2007 Lugano Convention”, available here. It has formally advised the EU not to allow the UK to accede.

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Oktoberfest jurisdiction torpedo defused

We previously blogged about Master Davison’s unusual decision in Jamieson v Wurttemburgische Versicherung AG & Anor [2021] EWHC 178 (QB) to make a request under art. 29(2) of Brussels I (Recast) to the Munich Regional Court to inform him of the date when it was seised or deemed seised of a claim for a negative declaration of liability brought against a Claimant who had been hit by a taxi at the Oktoberfest in Munich.

The background and facts are set out in our previous blog. The Claimant was again represented by Harry Steinberg QC, the First Defendant by Sarah Crowther QC, and the Second Defendant by Richard Viney.

On 28 April 2021, having heard back from his counterpart in Germany, the Master dismissed the Defendants’ applications for the court to decline jurisdiction. The stay was lifted and the litigation will progress in England. A link to the new decision is here.

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Pandya confirmed by High Court: service interrupting limitation governed by lex causae

In this blog, Cressida Mawdesley-Thomas considers the recent decision in Johnson v Berentzen & Anor [2021] EWHC 1042 (QB), handed down on Monday.

This is an important case for anyone doing cross-border work. It involved a direct challenge to the decision in Pandya (see here). This determined that, in Rome II cases, service of proceedings for the purpose of stopping the limitation clock is treated as a matter relating to limitation under art. 15(h) rather than as a matter of evidence and procedure under art. 1(3).

The significance is that, pursuant to art. 15(h), matters relating to limitation are governed by the lex causae (the applicable substantive law) rather than by the lex fori (English law). So, if, for example, Greek law requires that proceedings must be served to stop the limitation clock, then service has to be effected within the relevant Greek limitation period rather than in the separate period set by the English procedural rules.

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Enforcement abroad: summary judgment or judgment in default?

Duferco SA v CVG Ferrominera Orinoco CA [2021] EWHC824 (Comm) was a contractual claim brought by a corporate Claimant against a state-owned entity based in Venezuela. In summary, the Claimant said that the Defendant had failed to make delivery of certain contracted-for products. It sought an eye-watering $11 million in damages plus $11 million in interest.

Service had been validly effected against the Defendant. However, the Defendant did not file an acknowledgement of service or a defence. In these circumstances, the Claimant could have sought the entry of judgment in default.

So far, so straightforward.

However, the Claimant opted not to do this; it instead applied for summary judgment. The Claimant’s reasoning was that it would be easier to enforce a judgment on the merits than a judgment by default in the relevant foreign jurisdictions (in particular, Venezuela).

The judgment, which was previously available in summary only, is now available in full on Westlaw. It provides a useful guide to this important practice point for cross-border practitioners. It is also a good illustration of the importance of a point we have been emphasising – that the practicalities of enforcement need to be considered and acted on at the very earliest stages of a case.

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Lord Sales: Court of Appeal can overrule pre-Brexit Supreme Court decisions on EU law

Lord Sales raised some interesting points concerning the status of retained EU law in his recent lecture on the “Implications of Brexit and COVID-19 for UK Law” at the New Zealand Senior Courts Judges’ Conference, Tauranga, 15 – 17 April 2021. We previously blogged about the status of retained EU law and the first Court of Appeal decision considering this issue.

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European Commission reports on implementation of 2015 Package Travel Directive

On 1 March 2021, the European Commission reported on the transposition and application of the Package Travel Directive (EU) 2015/2302 (‘the 2015 Directive’). The report assesses Member States’ transposition of the 2015 Directive in the context of the 2019 Thomas Cook bankruptcy and the COVID-19 pandemic.

In this blog post, Cressida Mawdesley-Thomas summarises the key points.

The report focuses on two big issues: insolvency and cancellation. However, it also notes the difficulties that have arisen in defining and distinguishing packages from linked travel arrangements (‘LTAs’).

An underlying theme within the report is the disparity between package travel organisers and transport providers. For example, travellers have the right to cancel in the event of unavoidable and extraordinary circumstances[1] and to demand a full refund from organisers, but they do not have equivalent rights against transport providers. Further, organisers are obliged to refund travellers if a package has to be cancelled due to an airline’s failure.

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