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TRAVEL: An Introduction

COVID-19 has caused an unprecedented crisis for the travel and tourism industry. The United Nations World Tourism Organisation (UNWTO) reports a decline of up to 78% in international tourist arrivals for the year. UNWTO reports that by 20 April 2020, 100% of all worldwide destinations had introduced travel restrictions in response to the pandemic, with 45% of those destinations having totally or partially closed their borders for tourists. Although at the time of writing some 40% of destinations have now eased travel restrictions, the situation remains fast-changing and uncertain, in response to changing infection rates and levels in the UK and abroad.

The necessarily cross-border nature of litigation in this field has given rise to logistical and other difficulties in progressing current cases as a result of COVID-19 restrictions; in particular with matters such as obtaining documents from parties domiciled abroad, taking and hearing evidence from overseas witnesses, serving proceedings and documents abroad and issuing proceedings in overseas jurisdictions. The vicissitudes of hearing evidence by videolink, a commonplace experience at the Travel Bar, was for many months the default for all civil trials and continues to play a prominent role. In addition to these practical difficulties with current cases, practitioners expect to see a future impact on the overall volume of cases in the field of international personal injury, as a consequence of the markedly reduced levels of international travel in 2020.

Aside from COVID-19, responses to Brexit continue to occupy the sector. For the purposes of establishing jurisdiction in respect of defendants domiciled in the EU, the Withdrawal Agreement provided for the continued application of Regulation (EU) No 1215/2012 (Brussels 1a) until the end of the transition period. However, practitioners are already heavily engaged with the hundreds of claims issued in 2019, brought in order to secure jurisdiction at a time when it appeared that the UK would exit the EU with no transitional arrangements.

All those involved in the sector are asking with increased urgency and anxiety what rules will apply, in particular to jurisdiction, recognition and enforcement, once the transition period comes to an end on 31 December 2020. Although the UK Government has expressed an intention to accede to the Lugano Convention, and has received statements of support of such intention from EFTA members, whether it will do so in the absence of wider arrangements with the EU remains unclear.

In the absence of a multilateral agreement with the EU on such matters, the need to obtain the Court’s permission to serve defendants domiciled in the EU will be required. With the “tort gateway” to service-out in CPR PD 6B having been given wide interpretation in the Court of Appeal and Supreme Court, it is envisaged that the discretion formerly known as forum non conveniens will play a much more muscular and prominent rule in restricting the application of that gateway. Parties and practitioners eagerly await further jurisprudence on this discretion, as there remains considerable uncertainty as to how permissively/restrictively it would be exercised and whether consistent results would be seen across Courts and cases. The likelihood of contested hearings on the issue of jurisdiction, and resulting high stakes for the parties, is expected to become a more routine aspect of work in the sector, in such a scenario.

In the absence of a guaranteed substitute for Brussels 1a, practitioners also continue to advise on and prepare for the prospect of challenges to recognition and enforcement of orders and judgments obtained in England and Wales against parties domiciled in the EU. Closer working relationships and earlier communication with colleagues in the EU, for input on such matters at the earliest stages of litigation, may well become the norm.

In the field of package travel, claims subject to the Package Travel and Linked Travel Arrangements Regulations 2018 (which came into force in July 2018) are now routine. The Regulations greatly expand the ambit of consumer protection to differing holiday arrangements, in reflection of the move away from traditional package holiday sales and the exponential growth of e-commerce in the sector. The Regulations also provide for enhanced financial protection for consumers in relation to (non-package) linked travel arrangements, with the result that many more arrangements now have such protection.

Practitioners continue to eagerly await the outcome of the reference by the Supreme Court in X v Kuoni Travel Ltd [2019] UKSC 37 to the CJEU concerning the scope of the defences available to tour operators under article 5(2) of the 1990 Directive, implemented in the UK by the Package Travel, Package Holidays and Package Tours Regulations 1992. With any outcome having potentially far-reaching consequences in other cases, the post-Brexit relevance of the decision of the CJEU is likely to be the subject of future controversy and litigation. In the field of gastric illness claims arising out of holidays, there can be little doubt that the introduction of the fixed costs regime in 2018, the emphasis on the need to prove causation in the dicta in Wood v TUI Travel PLC [2017] EWCA Civ 11 and the willingness of tour operators to litigate to trial have resulted in a decrease in the volume of cases. Nevertheless, there is renewed interest in the scope of the Court’s treatment of expert evidence on causation in such cases, following Griffiths v TUI UK Limited [2020] EWHC 2268 (QB), and such issues are likely to remain the subject of further debate and case law.

In aviation cases the subject of the Montreal Convention, a number of recent decisions have continued to explore and push at the boundaries of the cause of action. In Jane Doe v Etihad Airways P.J.S.C. No 16-1042, 6th Cir, (30 August 2017) and Pel-Air Aviation Pty Ltd v Casey [2015] NWSCC 566 the US Court of Appeals for the Sixth Circuit and the New South Wales Supreme Court respectively considered the scope to which the Montreal Convention permitted recovery for psychological injury. In Labbadia v Alitalia (Societa Aerea Italiana S.p.A) [2019] EWHC 2103 (Admin), the High Court’s decision placed strain on another element of the cause of action – the requirement that the injury is suffered as a result of an ‘accident’.

The field of international personal injury has shown itself to be dynamic and responsive to global and domestic changes in the legal, economic and political environment for travel and tourism. With the continuing seismic shocks caused by COVID-19 and the fundamental changes in political and legal landscape caused by Brexit, the sector’s readiness to evolve and adapt will be tested to the utmost.

Asela Wijeyaratne

3 Hare Court