High Court applies Spanish Baremo

In this blog, David White considers Scales v Motor Insurers’ Bureau [2020] EWHC 1747 (QB).

This is an important judgment in that it is (as far as the writer is aware, at least) the first reported decision of one of the senior courts of England and Wales (High Court or above) regarding the application of the Baremo. The Baremo is the tariff for assessment of damages in Spanish RTA cases.

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European Commission begins infringement proceedings against Member States for failure to comply with EU law on protecting the rights of consumers and travellers

In the ongoing refunds saga, the EU has, as of 2 July 2020, begun infringement proceedings against the Czech Republic, Cyprus, Greece, France, Italy, Croatia, Lithuania, Poland, Portugal and Slovakia on the grounds that their national rules infringe EU law on consumers’ and travellers’ rights. In this blog, Spencer Turner updates us on the current position.

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Comity, performance, and illegality under foreign law

This blog by Achas Burin considers the recent case of Colt Technology v SG Global Group [2020] EWHC 1417 (Ch).

Colt Technology, a company incorporated in the UK, successfully applied to restrain a winding up petition sought by SG Global (‘SGG’), an Italian company.

The court based its judgment on the principle in Ralli Brothers v Compania Naviera Sota [1920] 2 KB 28 regarding contractual performance which may be illegal under foreign law. This blog considers the modern effect of that principle and its relationship with the principle of international comity and the modern English doctrine of illegality as defined in Patel v Mirza.

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Default judgment against anchor defendant closes the “necessary and proper party” service gateway

This blog by Henry King considers the recent decision in Satfinance Investments Limited v Inigo Philbrick and ors [2020] EWHC 1261 (Ch). The key point in this case was Chief Master Marsh’s interpretation of the CPR 6BPD 3.1(3) “necessary and proper party” service gateway. This is a significant decision for those involved in cross-border claims involving multiple parties.

The 3.1(3) gateway allows parties suing an “anchor defendant” to serve proceedings on foreign-domiciled persons who are “necessary or proper parties” to the claim against the anchor defendant.

But there is a threshold test to this gateway, which is that there must first be “between the claimant and the defendant a real issue which it is reasonable for the court to try” (emphasis added).

Chief Master Marsh interpreted this as meaning that, if default judgment has been, or likely will be, entered against the anchor defendant, then there will be no issue for the court to try.

In those circumstances, the 3.1(3) gateway will not apply and jurisdiction cannot be established against the non-anchor defendants under it.

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Jurisdiction clauses – they mean what they say

In this blog, Spencer Turner considers the recent decision of Ridley v Dubai Islamic Bank PJSC [2020] EWHC 1213 (Comm). The background to this case is unusual, extensive and interesting. The key points are these:

  • What happens when (i) the claimant gets permission to serve abroad; (ii) the defendant challenges the grant of permission; but (iii) it turns out that no permission was needed at all? This was the question raised by the judge in this case (presumably to the relief of the Claimant) while writing his judgment. Generally, a party will be entitled to assert the true basis for jurisdiction rather than having to start all over again.
  • Perhaps an obvious point, but parties must take great care when drafting contractual jurisdiction clauses. A jurisdiction clause which covers “all” disputes relating to a particular subject matter means what it says. It even covers disputes that were unforeseen at the time.
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Anti-suit injunctions: lessons from two recent cases

The High Court has a general power to grant injunctions under s. 37(1) of the Senior Courts Act 1981. An “anti-suit injunction” orders a party to cease to pursue, or not to commence, court proceedings. It may be granted where foreign proceedings will infringe a relevant substantive legal or equitable right (such as a contractual jurisdiction clause). Where no substantive legal or equitable right is infringed, an anti-suit injunction will generally only be granted where England is the natural forum for the proceedings and the foreign proceedings are “vexatious” or “oppressive”.

Two recent judgments, considered by Christopher Fleming, provide a useful insight and overview of the issues surrounding applications for anti-suit injunctions. This article reviews the observations made in both decisions that deal with issues of delay and the principles of comity in such applications.

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Odenbreit and territorial restriction clauses: a new twist from the CJEU

In Case C‑581/18 RB v TÜV Rheinland LGA Products GmbH, Allianz IARD SA, the CJEU rejected a challenge to a territorial restriction clause in a liability insurance contract brought on the basis that it amounted to discrimination on grounds of nationality contrary to art. 18 TFEU. The ruling may be said to represent a blow to Hutchinson v Mapfre España Compañia de Seguros Y Reaseguros SA and another [2020] EWHC 178 (QB), which we considered separately here. But it seems to me that there are ways to reconcile the two, which are considered below.

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Coronavirus mini-series: (10) quarantine for international travellers

In this blog, Sam Cuthbert considers the legal basis and effect of the quarantine measures imposed on incoming international travellers, with a particular focus on their consistency with the international human rights framework governing national responses to public health crises.

The government’s COVID-19 recovery strategy was laid before Parliament on 11 May 2020. In part, it sets out that international travellers arriving into the UK will be required to undertake a 14-day period of self-isolation. Implementing measures for this policy are  due to come into force on 8 June 2020. The quarantine imposed on international arrivals is intended to prevent transmission of the virus during its incubation period and will depend on travellers providing information regarding a suitable location in which they will self-isolate. Those without suitable accommodation will be quarantined in government arranged facilities.

This article sets out the development of the statutory scheme by which the government is able to exercise such powers and how it coheres with the UK’s international law obligations under the International Health Regulations 2005. Continue reading “Coronavirus mini-series: (10) quarantine for international travellers”

Lis pendens under Brussels I (Recast): two recent cases

In this blog post, Lizzie Boulden considers two recent cases applying the lis pendens provisions of Brussels I (Recast). They are: The Federal Republic of Nigeria v Royal Dutch Shell Plc and Ors [2020] EWHC 1315 (Comm) and Awendale Resources Incorporated v Pyxis Capital Management Ltd [2020] EWHC 1286 (Ch).

It will be recalled that, under art. 29 of Brussels I (Recast), the court must of its own motion stay its proceedings where proceedings “involving the same cause of action and between the same parties are brought in the courts of different Member States.” The key points arising from the two new cases are as follow:

  • The starting point in considering lis pendens under art. 29 remains the comprehensive guidance of Lord Clarke in The ‘Alexandros T’ [2013] UKSC 70. This important guidance is set out in full below.
  • The fact that the parallel proceedings involve slightly different constellations of parties does not affect the analysis of whether there exists a lis pendens in respect of any two of those parties.
  • Two technically separate legal entities will, in certain circumstances, be considered “the same parties” for the purposes of the lis pendens rules.
  • If the parties are the same, the question then becomes whether the basic facts and basic claimed rights in the two sets of proceedings are the same when “due allowance” is given for any minor differences between proceedings brought in different national courts.
  • Although art. 29 requires the court to stay the proceedings “of its own motion”, it can apparently decline to do so where a defendant has failed to make a timely request for a stay under CPR r. 11(4) (although Lord Clarke did not think that this approach was “acte claire” in The ‘Alexandros T’ [2013] UKSC 70).
  • A defendant’s request for an extension of the time limit under CPR r. 11(4) will be dealt with under the court’s general powers of case management and not as an application for relief from sanctions (but contrast the approach in Lackey v Mallorca Mega Resorts and Anor [2019] EWHC 1028 (QB), which we blogged about here).
  • In considering such an application, the risk of irreconcilable judgments in different EU Member States seised with proceedings falling under art. 29 will be a strong reason for granting an extension of time for compliance with CPR r. 11(4).
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Insolvent airlines and tour operators: an alternative route to damages

Following the collapse of Thomas Cook, we posted a short article on the possibility of alternative claims against credit card providers under s. 75 of the Consumer Credit Act 1974 (“CCA 1974”). In summary, the CCA 1974 enables consumers who have paid for goods or services on a credit card to bring a “like claim” based on any breach of contract against the creditor. In this blog, Cressida Mawdesley-Thomas looks in detail at a provision which may soon be of increasing importance in the context of claims against insolvent airlines and tour operators. Continue reading “Insolvent airlines and tour operators: an alternative route to damages”