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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No more CJEU references: the practical implications

Patrick Vincent QC, Cressida Mawdesley-Thomas and Philip Mead and Richard Viney, all of 12 Kings Bench Walk, appeared in the case of Greenaway & Rocks v Covea Insurance & Others, in which Mr Justice Martin Spencer considered how the domestic court is to interpret retained EU law. It was agreed that this was a case which, pre-Brexit, would have almost certainly been referred to the CJEU for a preliminary ruling.

The case concerns section 151(4) of the Road Traffic Act 1988, which excludes an insurer’s obligation to compensate victims of road traffic accidents who are passengers in a vehicle they know has been stolen or unlawfully taken.

Part of the claimant’s case is that Directive 2009/103/EC (‘the 6th Directive’) only permits an exclusion to the obligation to compensate passengers where they know the vehicle has been “stolen” (and not when it has been unlawfully taken).

The issue is whether the word “stolen” in the 6th Directive has the same strict meaning as in the Theft Act 1968 and therefore requires an intention permanently to deprive, or whether the term encompasses unlawful taking. There is no CJEU authority on the point.

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Post-Brexit enforcement difficulties in UK/French cross-border claims

The end of the Brexit Implementation Period on 1 January 2021 put an end to Brussels I (Recast)’s common system of jurisdiction and enforcement in civil and commercial matters (except for pending claims) as between the EU and the UK. We blogged about the Government’s guidance on the new status quo here.

Of particular concern for English claimants suing French defendants in the future is the question of how and when an English court’s judgment can be enforced in France. As we pointed out in a previous blog post, the question of possible enforcement must be addressed as a matter of priority by any cross-border practitioner considering new litigation.

We are grateful to Karel Roynette of Grenier Avocats for this eye-opening blog post setting out the difficulties that English claimants may now encounter despite having successfully pursued a French defendant to judgment.

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Greek Supreme Court changes course on enforcement of English costs awards

This week we will be featuring guest posts by some of our European colleagues looking at recognition and enforcement of English judgments overseas, with one eye on the post-Brexit future.

For this first post, we are grateful to Louiza Papadopoulou, Trainee Solicitor at P.A.G Law, Athens, Greece who wrote this piece with assistance from George Natsinas, Solicitor and Member of the Athens Bar Association.

In a case concerning the enforcement of a UK costs certificate, the Greek Supreme Court recently overturned longstanding precedent and held that the “excessive nature” of an English costs award is not contrary to Greek public order. The reasoning of the court’s decision was based on the EU principle of mutual trust and the prohibition of any review of the substance of a foreign judgment, as provided for in art. 45 of the original Brussels Regulation.

As Louiza and George point out in their comments below, Brexit has changed the picture. However, this ruling will continue to have relevance to cases with a Greek element started before 1 January 2021 under the transitional provisions of the Withdrawal Agreement.

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Judgment day announced in X v Kuoni

My thanks to William Audland QC for letting me know that the CJEU has informed the parties in X v Kuoni Travel C-578/19 that it will hand down its judgment at 9.30 am on 18 March 2021.

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. We are looking forward to completing the set in a few weeks.

The Defendant in the litigation is represented by William Audland QC, Nina Ross, and Achas Burin, all of 12 King’s Bench Walk.

Supreme Court rules in Okpabi v Royal Dutch Shell Plc and SPDC

The decision of the Supreme Court in Okpabi & Others v Royal Dutch Shell Plc & SPDC was handed down this morning.

The Supreme Court has, unsurprisingly, confirmed that the law is as stated in its recent decision of Lungowe & Others v Vedanta Resources Plc & KCM [2019] UKSC 20. Applying the principles laid down in Vedanta, the Claimants’ case can proceed in this jurisdiction.

In this blog post (produced in record time), Kate Boakes analyses the new decision and its implications. She also looks back at the line of cases constituting the “Vedanta model” of claims against UK-domiciled parent companies.

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The 2005 Hague Convention on Choice of Court Agreements

We previously blogged about the changes to the landscape of civil jurisdiction and enforcement brought about at the end of the Implementation Period on 31 December 2020.

One of these changes was the direct incorporation into English law of the 2005 Hague Convention on Choice of Court Agreements via the Private International Law (Implementation of Agreements) Act 2020.

This actually represents a continuation of the position pre-Implementation Period, since the Convention already applied by virtue of the UK’s membership of the EU. The EU bloc is a party to the Convention, as are Denmark, Montenegro, Mexico and Singapore.

But what exactly is the Convention and what does it do? In this blog post, Cressida Mawdesley-Thomas summarises the key points.

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