Recent guidance on “good arguable case” test in jurisdiction challenges

In Generali Italia SPA & Ors v Pelagic Fisheries Corporation & Anor [2020] EWHC 1228 (Comm), Foxton J considered proceedings brought by insurers for declarations that they were not liable to their insureds under certain policies of insurance. The insureds challenged the English court’s jurisdiction on the basis that they had already brought their own parallel proceedings against several of the insurers in Italy.

The insurers countered that the relevant insurance policies were subject to exclusive English jurisdiction clauses. The insureds disagreed; they said that the insurance policies contained clauses giving jurisdiction to the courts of either England or Italy. They argued on that basis that the English court should stay its proceedings in order to allow the Italian proceedings to progress.

Foxton J’s judgment contains useful guidance on how the courts will now apply the “good arguable case” test in jurisdiction challenges following Brownlie v Four Seasons Holdings Inc [2017] UKSC 80. It also has an interesting analysis of the circumstances in which the Brussels I (Recast) “Italian Torpedo” provisions will apply. Continue reading “Recent guidance on “good arguable case” test in jurisdiction challenges”

Clinical negligence in a foreign hospital: a recent ruling on applicable law and limitation

In Roberts (a minor) v (1) SSAFA; (2) MOD; (3) AKV (Part 20) [2020] EWHC 994 (QB) Mrs Justice Foster gave judgment on preliminary issues arising out of a claim for an English midwife’s purported negligence during the birth of Harry Roberts in Germany. The preliminary issues were: (1) Whether German law applied; (2) If so, whether the Claim was time-barred under German Law; (3) If it was time-barred, whether the limitation period should be disapplied. The judge held German law applied but the claim was not time-barred under it. However, the judge went on to hold, obiter, that if the claim were time-barred then the German limitation period should be disapplied on account of the undue hardship it would cause.

In this article, Cressida Mawdesley-Thomas examines how the applicable law is determined under The Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”); as well as when a foreign limitation period will be disapplied pursuant to the Foreign Limitation Periods Act 1984 (“FLPA”). Continue reading “Clinical negligence in a foreign hospital: a recent ruling on applicable law and limitation”

Coronavirus mini-series: (9) frustration and force majeure – a guide for the travel industry

The COVID-19 pandemic has brought about a near complete cessation in tourism across the globe. The effects of this for consumers and commercial parties alike are far-reaching and are likely to continue into the foreseeable future.

For commercial bodies operating in the industry and considering their position, force majeure clauses and the doctrine of frustration are likely to become key. This article, by William Audland QC, Max Archer, and Spencer Turner, seeks to examine both aspects of contract law in the light of the pandemic. Continue reading “Coronavirus mini-series: (9) frustration and force majeure – a guide for the travel industry”

Coronavirus mini-series: (8) cruises

Cruise ships – with their enclosed areas, increased exposure to new environments, and limited onboard medical resources – were always going to be susceptible to increased risk and rapid spread of SARS-CoV-2, the virus responsible for COVID-19.

In this blog, Alex Carington of 12 King’s Bench Walk considers the potential liability of cruise ship operators for coronavirus cases on cruises under the Athens Convention for the Carriage of Passengers and their Luggage by Sea 1974 as amended by the 2002 Protocol (the “Athens Convention”). Continue reading “Coronavirus mini-series: (8) cruises”

Coronavirus mini-series: (7) flight delays and cancellations

Since the UK lockdown began five weeks ago, we have been confronted with a steady stream of increasingly dismal updates regarding international air travel. In this blog, Charley Turton of 12 King’s Bench Walk considers the legal position of consumers faced with delayed and cancelled flights, including the pressing issue of whether future travel vouchers offered by airlines may be acceptable alternatives to cash reimbursement of the ticket price.

Continue reading “Coronavirus mini-series: (7) flight delays and cancellations”

UK post-Brexit Lugano accession thrown into doubt

This blog is by Spencer Turner of 12 King’s Bench Walk.

The UK Government has outlined its intention to accede to the Lugano Convention post-Brexit. Accession to the Convention would preserve the essentials of the current regime, in that it would provide for a reciprocal arrangement under which English and other European courts would apply a common set of jurisdictional rules. Some of the benefits of Brussels I (Recast) would be lost (we may see the return of the ‘Italian torpedo’ because the Lugano Convention does not accord primacy to exclusive jurisdiction agreements, for example) but accession to the Lugano Convention would provide a degree of legal certainty, predictability of outcome, and definite relief for practitioners and parties.

Earlier in January 2020, Norway, Iceland and Switzerland sounded their support for the UK’s plan to join the Lugano Convention and, on 8 April 2020, the UK submitted its formal application to accede to the Convention. The obvious potential speed bump for the UK is that in order to accede to the Convention there will have to be unanimous consent of all the other contracting parties. Easier said than done. Continue reading “UK post-Brexit Lugano accession thrown into doubt”

Consent to risk and movie stunts: a recent ruling from South Africa

During filming for Resident Evil: The Final Chapter in South Africa, UK-based stuntwoman Olivia Jackson was involved in a serious collision with a camera boom while riding a motorcycle. Ms Jackson suffered a number of serious injuries, including facial scarring, nerve damage and an above-elbow arm amputation. The liability insurance policy for the film did not include cover for injury to the cast or key crew. In this blog, Sam Cuthbert of 12 King’s Bench Walk considers Ms Jackson’s claim before the High Court of South Africa. The full judgment, which includes an interesting analysis of the defence of volenti non fit injuria, can be found here. Continue reading “Consent to risk and movie stunts: a recent ruling from South Africa”

Italian torpedo still applies to Lugano proceedings

The UK recently formally requested accession to the Lugano Convention. This is likely to represent the touchstone for English jurisdiction in the near future. How timely, then, is the judgment of Waksman J last week in Mastermelt Ltd v Siegfried Evionnaz SA [2020] EWHC 927 (QB), which neatly highlights one of the persisting deficiencies of that scheme? Continue reading “Italian torpedo still applies to Lugano proceedings”

Package travel, aviation, and the role of local law

In Palaiokrassus & Tsakou v Black and Green Trading Limited (Unreported) 7 April 2020, QBD, Master Thornett dismissed an application to set aside default judgment brought under CPR r. 13.9 and r. 3.9. The case concerned claims for personal injuries suffered in an air crash which occurred during a package holiday in Ethiopia. In dismissing the application, Master Thornett set out reasons that will be of interest to aviation and travel practitioners.

This blog is by Max Archer, who appeared for the Claimants on instruction by Stewarts Law. Continue reading “Package travel, aviation, and the role of local law”

Coronavirus mini-series: (6) a big problem for service on EU-domiciled defendants

Last week, we noted that service of documents abroad via the Foreign Process Section of the Royal Courts of Justice had been suspended. The implications of that decision are significant. Specifically, it may cause huge problems for service in cases involving EU-domiciled defendants. On one analysis, it will in some cases be impossible to serve. Continue reading “Coronavirus mini-series: (6) a big problem for service on EU-domiciled defendants”