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TRAVEL: An Introduction

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Brexit continues to dominate the international personal injury field. With the Withdrawal Agreement apparently dead in the water, clients both claimant and defendant are asking with increasing urgency what rules will apply particularly to jurisdiction, recognition and enforcement as the UK leaves the EU. At the point of writing, hundreds of claims have been issued and served in order to ensure the English courts are seised before exit day – most practitioners in this area will have found the last week of March 2019 a demanding one, and October no less so. Arguments will no doubt keep the courts and lawyers busy over the next couple of years as to the implications of claims being heard in the English courts which straddle the UK leaving the EU.

Key battlegrounds are likely to be the extent to which forum conveniens will start to make a reappearance when permission is again needed to serve defendants domiciled in the remaining EU Member States, whether there remains a route to pursue foreign-domiciled insurers in a claimant’s home court, whether there is scope for a more ‘English-oriented’ assessment of damages once the objective set out in the Rome II Regulation of increasing predictability across the EU no longer applies, and of course the appetite foreign courts will have for enforcing awards (particularly costs orders) from English courts without the mandatory rules on recognition and enforcement provided by the current Brussels regime.

There have been developments too in the field of package travel. The new Package Travel and Linked Travel Arrangements Regulations 2018 came into force in July 2018 (and so will survive exit day), greatly extending the ambit of contractual arrangements which attract the protection of the Regulations as against a single trader even to situations where separate travel services are booked up to 24 hours apart.

In early 2018 the Court of Appeal heard the appeal in X v Kuoni Travel Ltd [2018] EWCA Civ 938, the first time the statutory defences under the 1992 Regulations had been considered by that court. The judgment caused something of a stir as the court (with Longmore LJ dissenting) appearing to limit a tour operator’s responsibility for proper performance to the acts and omissions of those with which it was in a contractual relationship (and not their employees); and emphasising the need to consider the role for which an employee was employed in deciding whether something fell within the contracted-for holiday arrangements. But within the year the Supreme Court had heard the appeal and made the first, and probably last, reference from the UK to the CJEU concerning package travel, and the first from any Member State concerning the defences to liability set out in Article 5(2) of the Directive. Although the Court has asked the CJEU to assume that the assault on X by an on-duty engineer in the course of purportedly guiding her through the grounds was indeed improper performance of her holiday contract (contrary to the approach taken by the High Court and Court of Appeal), at stake is whether a tour operator can rely on the last of the Article 5(2) defences – where improper performance was due to an event which the organiser and/or retailer or the supplier of services, even with all due care, could not foresee or forestall and where it is the actions of the hotel’s employee which have put it in breach of contract to the claimant holidaymaker. Also in issue is whether individual employees can count as ‘suppliers’. The relevance of this decision (or any decision of the CJEU) once EU law is no longer supreme will no doubt form the subject of future litigation.

There have also been developments in the field of gastric illness claims arising out of holidays, a perennial source of work for the junior and middle-ranking Bar in particular. ABTA reported a 500% rise in holiday sickness claims between 2013 and 2016, and the costs of litigating invariably exceed the damages payable. Rumours abounded, reported in the national press, that some hotels were contemplating not offering all-inclusive deals to British holidaymakers. Tour operators have certainly increasingly been taking a harder line. Following Wood v TUI UK Ltd in early 2017, reported at [2018] 2 WLR, increasing emphasis has been laid on the need to establish the causal link between the food consumed and the contraction of illness, with tour operators notching up increasing numbers of County Court decisions in which causation has not been accepted. The introduction in May 2018 of the fixed fee regime for gastric illness claims is expected to make significant inroads into the number of claims brought, as is increasing awareness of tour operators’ readiness to argue fundamental dishonesty (often following far more extensive disclosure obligations under the new Protocol than was previously commonplace) or even to initiate private prosecutions. Outside the courts, a crackdown on gastric claims farmers seems to have resulted in a significant drop off, with the Claims Management Regulator issuing 16 warnings against 22 companies following an audit in 2018. Genuine claims continue to be brought and won, of course, but there is definitely something of a change in the climate.

The international personal injury field has changed dramatically in a relatively short period of time, and its ability to develop and adapt will be tested to the utmost over the next few years as the dust settles, as at some stage it surely must, after Brexit.