Stewarts once again supported the APIL Accidents Abroad conference, which took place this year on December 2, 2021. Partners Chris Deacon and Peter Neenan from the company’s Aviation and International Injury department both spoke at the event.
Topics covered at the conference included historic decisions and developments in international injury and travel litigation as the global travel and tourism industry continues to face the challenge of the global pandemic.
Chris presented the conference in his capacity as coordinator of APIL’s international special interest group. It hosted over 80 delegates in the hybrid format, which successfully saw speakers and attendees interact through a combination of in-person presence and video link.
Setting the stage for the conference program, Chris noted that this was a year of landmark developments: litigation, and the pandemic has continued to bring uncertainty to our day-to-day lives. However, there was cause for optimism as summer rolled into fall, and many returned to their love of international travel for the first time in over 18 months.
Jurisdiction, Enforcement and Decision of the Supreme Court of the United Kingdom in Brownlie v FS Cairo
In October 2021, the UK Supreme Court delivered its final judgment in the long-running Brownlie v FS Cairo case. Lead counsel for the claimant, Sarah Crowther QC, provided an overview of the decision while reviewing the latest jurisdictional developments. The claim follows a fatal road accident in Egypt in 2020 in which Lady Brownlie was seriously injured and tragically lost her husband, prominent scholar of public international law Sir Ian Brownlie. The accident happened as Lady Brownlie and her family were traveling in a limousine, which she had booked through the concierge at the Four Seasons Hotel, Cairo.
More than a decade after the accident, the Supreme Court ruled that Lady Brownlie could sue for damages in England. The majority ruled that a claimant who suffers from the lingering effects of an accident abroad could bring an action in the courts of England and Wales upon his return to his country. The claimant must be able to prove that England and Wales are the most suitable place to decide the case. The decision expands the possibility for tourists or workers who usually live in England and Wales to bring an action in the courts of their country following a serious accident abroad.
In Brownlie, the Supreme Court also clarified the requirements for arguing a foreign law when it applies to a claim and the approach to be taken when there is no evidence of the foreign law in court. The Supreme Court has determined that a party can rely on the presumption that foreign law is the same as English law if there is no evidence in court (usually in the form of a report of expert of a foreign lawyer) as to the content of the applicable foreign law. law.
The decision in Brownlie assumed a significance that was not contemplated at the outset of the litigation. In the wake of Brexit, the possibility for UK-based victims of serious injury to bring action in their home courts has been significantly reduced. Expanding what the Supreme Court calls the “tort gateway” has the potential to ensure continued access to justice for people with life-changing injuries overseas. However, the ruling does not help on the issue of enforcement. There is a risk that a judgment of the courts of England and Wales will not be recognized and enforceable in the 27 Member States of the European Union.
James Beeton of 12 King’s Bench Walk chaired a panel of speakers from across Europe examining the risks of post-Brexit enforcement. He was joined by Karel Roynette from France, Ana Romero from Spain and Silina Pavlakis from Greece, who provided a detailed overview of the UK judgment enforcement process in their home courts.
While enforcement was automatic under the European regime before Brexit, the procedure will now vary depending on the law of the country in which a claimant wishes to have a judgment enforced. The procedure is likely to be more expensive and time consuming, with a risk that a foreign court will refuse to enforce a UK judgment. The panel cautioned about the importance of expert advice early on before proceedings start in England and Wales to ensure that at each stage the claimant maximizes the prospect of being able to enforce a judgment before the courts. courts of the 27 Member States.
Montreal Convention: the arguments in favor of reform
Before lunch, Peter focused on aviation and considered the question, “Has the Montreal Convention achieved its stated goal of unification?” “
Reflecting on the language used by delegates throughout the preparatory work (i.e. the official record of the convention negotiations) to indicate their intentions, Peter divided this question into two sub-questions:
- “Has the Montreal Convention replaced the Warsaw system as the applicable regime governing the liability of carriers worldwide? “; and,
- “Has the Montreal Convention achieved legal certainty in its application and interpretation between the various jurisdictions of the world?
Regarding the first question, Peter analyzed accident statistics over the past 10 years to show that although the ratification of the Montreal Convention has been excellent (especially over the past five years) when accidents major aviation events occur, the Montreal Convention is rarely the liability regime. (Over the past 10 years, it has been the regimen in only 26% of accidents.) This is a consequence both of where international accidents occur and the number of accidents in the world. aviation that occur on domestic transport in jurisdictions that have not domesticated the Montreal Convention.
Regarding the second question, Peter gave participants an overview of conflicting decisions around the world covering the topics of preemption, jurisdiction and the definition of “accident”. He concluded with thoughts and caveats following the recent Silverman v Ryanair case on applicable law.
Package travel and UK Supreme Court ruling in X v Kuoni
The afternoon program began with the applicant’s legal team at X against Kuoni, James Riley and Katherine Deal QC, focusing on the latest developments in package travel. They examined the outcome of this long-standing case, which reached the Supreme Court for a final decision more than a decade after the incident giving rise to the complaint. At the end of July 2021, the Court of Cassation ensured a high degree of consumer protection when interpreting the regulations on package travel, confirming that it is necessary to have a broad vision of the obligations of a tour operator towards its holidaymakers.
James and Katherine also reignited the debate over whether tour operators selling package tours should have mandatory liability insurance. This would ensure that vacationers have an effective remedy if the tour operator is insolvent and cannot meet liability to a seriously injured claimant under package travel regulations.
Housing inquiries and the roulette wheel of applicable law
Chris once again stepped on the podium to close the conference with a comparative law look at how accommodation claims following a life-changing injury are handled under different EU laws.
He examined the situation in France, Spain and Poland, comparing and contrasting with the approach of English law following the decision of the Court of Appeal in Swift vs. Carpenter.
Chris noted that other European legal systems, notably France, seem less concerned with the prospect of a claimant’s estate receiving a windfall upon death if they are compensated for the full capital cost of a new one. property purchase. He identified that claimants injured in identical factual circumstances could see a huge difference in their compensation under the law that applies to their claim. He gave the example of an applicant who needs £ 1.2million to buy and adapt a property to meet his disability needs. The shortfall in damages could range from zero to a worrying just over £ 1million, depending on which law applies. Chris provided advice on how a foreign law could be interpreted and applied to maximize recovery for a claimant living in England with the associated costs of living.
Other presentations during the day focused on the responsibility of employers in an international context by Sarah prager of 1 Chancery Lane and a review of the ongoing litigation in Griffiths v TUI, which addresses an important point in civil procedure when a party seeks to rely on uncontested expert evidence.
Now in its sixth year, the Accidents Abroad conference has become a must-attend annual gathering for lawyers specializing in cross-border personal injury claims, as well as experts who receive instruction in this specialized area of law.