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.

Continue reading “Odenbreit and territorial restriction clauses: a new twist from the CJEU”

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).
    Continue reading “Lis pendens under Brussels I (Recast): two recent cases”

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”

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”