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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UK Lugano Convention bid opposed by European Commission

Despite early optimism that the European Commission would give its blessing for the UK’s bid to join the Lugano Convention at a closed-door meeting with EU diplomats yesterday, The Financial Times is reporting that the Commission has taken the opposite course and recommended that the UK should not be allowed to join.

This is apparently on the basis that the UK is neither a member of the European Economic Area nor the European Free Trade Association.

The EU’s position will ultimately be decided by the bloc’s national governments, which will review the issue over the coming weeks. The Financial Times reports a deep split among national governments concerning UK membership of the Convention.

Court of Appeal delivers guidance on post-Brexit application of EU Regulations

In Lipton & Another v BA City Flyer Limited [2021] EWCA Civ 454, Michael Rawlinson QC and Max Archer, both of 12 King’s Bench Walk and instructed by Hayward Baker Solicitors, were successful in the Court of Appeal in the first case to consider the impact of an EU Regulation post-Brexit.

The appellants successfully argued that airline staff absences should not be considered to be ‘extraordinary circumstances’ for the purposes of Regulation (EC) 261/2004 (“the Regulation”).

In this blog post, Samuel Cuthbert considers the implications of the judgment.

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Will ship-breaking stretch the boundaries of the duty of care?

In this blog, John-Paul Swoboda and Cressida Mawdesley-Thomas consider Begum v Maran (UK) Ltd [2021] EWCA Civ 326. This was the appeal from a decision of Jay J (discussed in a previous blog here), who had refused Maran UK’s application to strike out the Claimant’s claim and/or grant them reverse summary judgment.

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CJEU rules in X v Kuoni

The Court of Justice of the European Union (CJEU) handed down the highly anticipated judgment in X v Kuoni yesterday. The CJEU had been asked by the Supreme Court to consider the scope of the defence set out in article 5(2) of Directive 90/312/EEC (the Package Travel Directive). Spencer Turner considers the ruling in this blog post, which also appears on LexisPSL.

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 CJEU was broadly in agreement with the position adopted by Advocate General Szpunar in the opinion he provided in this case last year. In response to the questions referred by the Supreme Court, the CJEU has set out that an employee is not a supplier of services and that an organiser can be liable for the actions of a supplier’s employee where those actions constitute improper or non-performance of an obligation under a package travel contract. The acts of an employee are not events which cannot be ‘foreseen or forestalled’ and therefore travel operators cannot exclude themselves from liability.

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