Thomas Cook mini-series – (2) Alternative avenues for claimants

This blog by Philip Mead forms part of a series on the aftermath of the collapse of the package holiday provider Thomas Cook. A previous blog covers the rights of injured claimants to pursue a remedy where a purchase was made with a credit card. Philip assesses other possible avenues against alternative defendants.

Given that a claim under the Package Travel regulations is a claim imposing a “quasi-vicarious” liability on the defendant package holiday provider in the English courts, are there alternative defendants who could also be sued in the domestic courts? The answer will depend to some considerable extent on the outcome of the departure of the UK from the EU.

Pre-Brexit Claims

For as long as Brussels I (Recast) (Regulation (EU) (1215/2012)) applies, injured claimants may be able to avail themselves of a direct right of action against foreign insurers in the English courts where the foreign law permits a claim against the insurer of a tortfeasor (for example, under the laws of France or Spain, where a general right to sue liability insurers prevails) and the foreign insurer is an EU-domiciled entity. This may be particularly advantageous where there is a reversal of the burden of proof under the law of the place of the tort.

Claimants may also seek to join as a co-defendant the tortfeasor in accordance with the judgment of the Court of Appeal in the case of Hoteles Pinero Canarias SL v Keefe [2015] EWCA Civ 598. Readers will know that that ruling was challenged before the Supreme Court and a reference made to the CJEU. The issue has since been re-referred and it is a matter of controversy to what extent the ruling in Keefe will remain good law.

The disadvantages of pursuing claims against foreign insurers concern the uncertainty caused by Brexit as to the enforceability of an English judgment on quantum and costs post-Brexit in the courts of the insurer if there is no withdrawal agreement or no protection similar to Brussels I (Recast).

Post-Brexit Claims

In the light of Brexit, and the proposed amendments to CPR Part 6 (see the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019, explained here), any claims intended to be brought against an EU-domiciled defendant pre-Brexit require the issue and service of the claim form on the proposed defendant prior to exit day. Otherwise the new rules would require the claimant to seek permission to serve out.

For claims brought post-Brexit day (and assuming the CPR changes come into force), injured claimants may wish to continue to pursue Thomas Cook (with permission) as an English-domiciled defendant in any event, and join other co-defendants in the circumstances that Thomas Cook is domiciled here and any claim against it concerns an English contract, where the third-party defendants are necessary and proper parties to the litigation.

Claims against EU-domiciled insurers under the proper law constitute claims in tort (per Keefe); and any damage suffered by an injured claimant is damage suffered within the jurisdiction. There may be respectable forum conveniens arguments for saying England and Wales will be the proper forum where liability is not in issue. Permission to serve out would be needed.

Similar arguments may apply to join a tortfeasor (or where there is a limit on the insurance policy). If liability is in issue, there is a greater risk that the domestic courts will not be forum conveniens where there is an alternative available forum.

Post-Brexit, the same issues as to enforcement and recoverability of English judgments on quantum and costs remain relevant.

3 thoughts on “Thomas Cook mini-series – (2) Alternative avenues for claimants”

  1. These blogs are very useful keep up the good work!

    My reading of the saving provisions is that the Claim only needs to be issued pre exit day for a Claimant to enjoy the benefit of Brussels recast in a no deal scenario?

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    1. Hi Mike, thanks for your comment. The need for pre-Brexit service comes from the proposed amendments to the CPR which will come into effect on exit day. Currently you can serve outside the jurisdiction without permission where the defendant is domiciled in an EU Member State. But this provision for service without permission will be removed with effect from exit day: see reg. 4 of the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019. So we believe that if you haven’t served by that stage then permission will be required in the usual way.

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      1. Thanks James, this approach would seem to be inconsistent with the saving provision at Reg92 though, as why preserve the jurisdictional gateways under the Brussels regime for claims issued before exit day if there is then(absent a common law gateway) no means of effectively serving? Seems like this scenario has not been considered when the draft changes to CPR 6 were prepared.

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