Local standards in skiing claims

My thanks to Tom Collins of 1 Chancery Lane for letting me feature this article about a recent package travel case in which he successfully appeared on instructions from Michael Gwilliam of Plexus Legal LLP.

The article first appeared in 1 Chancery Lane’s Weekly Roundup, which can be accessed here.

In Doyle v Rayburn Tours Limited (Unreported) Birmingham County Court, 5 October 2021 (HHJ Truman), Tom acted for the tour operator in a claim brought by a teacher who had suffered a serious knee injury during a school ski trip to Italy.

It is of particular interest to this blog because it appears to be one of the first decisions grappling with the more permissive approach to local standards evidence seen in the decision of Marcus Smith J in Morgan v TUI UK Ltd [2020] EWHC 2944 (Ch) (see our previous blog on that case here).

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Griffiths overturned by Court of Appeal majority

In Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442, the Court of Appeal has handed down judgment on the question of whether the court can evaluate and reject an “uncontroverted” expert’s report, and if so, in what circumstances.

The background to this holiday sickness case will by now be familiar to travel lawyers: we also previously discussed the practical consequences for litigation of this kind of Martin Spencer J’s judgment below in a previous blog post here.

In this article, Sam Cuthbert summarises and comments on the new approach taken by the Court of Appeal.

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Court of Appeal: strike out stands in Nigerian oil spill “representative action”

The Court of Appeal has upheld a decision that claims pursued in a “representative action” on behalf of over 28,000 members of the Bonga community in Nigeria affected by an oil spill will be struck out.

This was a claim on behalf of individuals and communities based on the coast of Nigeria spanning Bayelsa State and Delta State.

It relates to the impact of an oil spill in 2011. In general terms, the Claimants allege that responsibility for the spill and its consequential impact lay with companies forming part of the Shell group. The Defendants deny liability.

We previously blogged about various issues decided by the trial judge (including his decision to strike out the representative aspect of the claims) here and here. In January, we blogged on the Court of Appeal’s judgment dealing with limitation issues in the same litigation.

There are two key points to note from the Court of Appeal’s new judgment.

First, the judgment sets out in very clear terms the highly restrictive nature of the CPR r. 19.6 representative action and its general unsuitability for large-scale environmental litigation (except perhaps in a limited category of cases, discussed below).

Second, it illustrates the need for legal representatives to take the utmost care when deciding how to formulate proceedings in multi-party litigation in circumstances where limitation issues may make it impossible to fix procedural problems at a later stage.

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Lord Frost: changes incoming for retained EU law

A major issue for English civil lawyers since Brexit has been making sense of the complex new idea of “retained EU law”.

Sam Cuthbert wrote an excellent summary of the key points in a blog back in January of this year. 2TG have recently released a detailed analysis of the many difficult questions about this area that will need to be answered in future cases.

But Lord Frost, the Government’s former chief Brexit negotiator, has indicated in a statement to the House of Lords yesterday that it is already time to “revisit this huge, but for us, anomalous, category of law”.

There are apparently two purposes of this review.

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Can a defendant who unnecessarily submits to the jurisdiction be an “anchor defendant”?

This is a short blog considering a fairly niche but potentially important issue. The situation is this:

The Claimant brings a claim against a foreign-domiciled D1, who submits to the jurisdiction. In fact, if D1 had not submitted, then there would not have been any valid jurisdictional basis for the claim against D1.

Can D1 be used as an “anchor defendant” for the purpose of the “necessary or proper party” service gateway in a claim against D2?

This might happen in one of two situations:

  • D1 makes a mistake: perhaps it fails properly to assess the jurisdictional position before submitting; or perhaps its representatives accidentally take some step in the litigation that amounts to a submission.
  • The Claimant and D1 collude to bring about a situation where they and D2 are all parties to the same litigation.

D2 suggested that the second situation was occurring in ID v LU & Anor [2021] EWHC 1851 (Comm). D1 could have insisted on being sued in its home courts in Ukraine under art. 4 of Brussels I (Recast), but apparently chose not to in order to engineer a situation where D2 were also before the court.

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Foreign law evidence: think about the practical side

It is one thing to follow the formalities to get expert foreign law evidence before the court in the first place (and all litigants should, of course, make sure that they follow the proper formalities).

But canny litigants need to go a step further and think about the practicalities of how their expert will give evidence and what impact this might have on the judge’s perception of the expert and the evaluation of their evidence.

This factor has always been relevant, but it has become especially important in the context of increasing reliance on remote or hybrid hearings where evidence may be given by individuals who are not physically present in the courtroom.

In Emerald Pasture Designated Activity Company & Ors v Cassini SAS & Anor [2021] EWHC 2443 (Ch), HHJ Kramer made some useful comments showing that considerations of this kind do play an active role in how judges approach foreign law disputes. The take-away from this blog is that litigants need to give real thought to the practicalities well in advance of any hearing.

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Success for pursuer in Scottish fatal diving accident claim

In this blog post, Lois Aldred of 12 King’s Bench Walk considers a new and perhaps conclusive development in the long-running litigation in Warner v Scapa Flow Charters [2021] CSOH 92.

The case is best known for its trip to the Supreme Court on limitation in 2018. Readers may recall that the Supreme Court allowed the claim brought for the benefit of Mr Warner’s son to proceed despite it being issued after the two-year limitation period of art. 16(1) of the Athens Convention.

The law of the forum governing a period of “suspension” or “interruption” of a limitation period under art. 16(3) of the Athens Convention was held to be wide enough to include Scottish legal provisions postponing a limitation period in the claim on behalf of the son, so that it was allowed to proceed.

The trial of the claim has now been heard by the Outer House of the Court of Session, the decision giving some comfort to the family of Mr Warner who sadly died following a diving trip out of the vessel (MV  Jean Elaine) skippered by the Defenders.

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X v Kuoni: Supreme Court unanimously allows Claimant’s appeal

The Supreme Court has handed down judgment in X v Kuoni Travel Ltd (ABTA intervening) [2021] UKSC 34, unanimously finding in favour of the Appellant. It follows the ruling of the CJEU in March of this year.

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 Respondent was represented by William Audland QCNina Ross and Achas Burin of 12 King’s Bench Walk on instructions from Gary Tweddle at MB Law.

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Permission to appeal granted in struck-out Fundão Dam Disaster Litigation

We previously blogged about Turner J’s decision to strike out the Fundão Dam Disaster Litigation. Coulson LJ then refused permission to appeal that decision on paper. The claimants applied for Coulson LJ’s decision to be re-opened on the basis of the court’s exceptional powers to avoid injustice pursuant to CPR r. 52.30.

The Court of Appeal has granted that application and now given permission to appeal following a hearing before three appeal judges.

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Beyond Visual Line of Sight (BVLOS) drone use is coming. What should insurers be doing?

In this blog post, Patrick Vincent QC and Max Archer of 12 King’s Bench Walk explain the imminent challenges for insurers arising out of the rapid rise of drone technology. The proper regulation of drone use and its implications for insurers has quickly developed into a transnational legal issue generating ongoing discussions between lawyers, lawmakers, and insurance industry representatives from around the world.

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