TRAVEL: An Introduction
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2022 continues to feel the effects of the Covid-19 pandemic, with few industries as dramatically and negatively impacted as that of travel and tourism. Although many travel restrictions have recently been lifted, permitting travellers to start inching across borders without having to incur the costs of testing at both ends, the industry continues to struggle, in some cases reaping the rewards of having laid off staff in such high numbers in 2020. Chaos at airports, strikes, inconsistent approaches to vaccinated and unvaccinated travellers, delays at border control, not to mention thousands of cancelled flights over peak holiday periods, have meant a shaky start to rebuilding the decimated industry and recapturing the public’s enthusiasm for sun, sea and sand.
The pandemic continues to affect travel law litigation. At its most basic level, fewer holidaymakers means fewer illnesses, injuries and claims. Although claims by consumers and indeed the CMA relating to cancelled holidays, delayed flights and insurance disputes arising from lockdown have been ongoing for a little while, the first cases have started to emerge where contraction of Covid-19 is at the heart, with allegations of negligence on the part of tour operators, cruise ships, hotels and airlines in not doing more to protect their customers. It will be interesting to see what the courts make of these over the coming months and years. One can surely expect that proving causation of illness in the middle of a global pandemic is going to be even more controversial than holiday gastric claims.
The pandemic continues to affect the practice of litigation too. Remote hearings continue to be the norm in many courts, with particular benefits in cases with overseas witnesses. Defendants who might otherwise have had to settle because a witness was unwilling to travel have found the greater acceptance of video evidence beneficial.
For many travel lawyers, the reduced opportunities for people to injure themselves has added salt to the Brexit wounds, and a downturn in the number of claims being brought seems inevitable. Many claimants, faced with the certainty of compensation in the country of the accident versus the risks of the new/old jurisdictional regime, have simply opted for the former. Judicial consideration is urgently awaited of the extent to which courts will continue to uphold an English victim’s desire to sue in his/her home country now that the Odenbreit gate has been slammed shut. Focus is expected on the need for a claimant to prove forum conveniens (that is, the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice). No doubt judges will have ringing in their ears the warning of Lord Wilson in Brownlie v Four Seasons (No.1)  UKSC 80 about the need for a ‘rigorous’ exercise of the appropriate forum inquiry to achieve a proportionate outcome. The consumer contract gateway has been retained in English law, offering scope to depart from the strict Community requirement that the claimant be the contracting party (albeit with the need now to prove that England is the forum conveniens). However, the gateway relating to direct claims against insurers has not. Clarity is urgently needed as to the continued right to sue (predominantly EU) insurers here for overseas accidents. Renewed focus by insurers on highlighting limits on the scope of the insurance policy as legitimate jurisdictional or substantive defences is expected, and these battles will no doubt play out for years to come.
But whilst so much remains up for argument, there have been some developments in the law over the last year. Residence for the purpose of domicile was the subject of two High Court decisions in a couple of months in 2021, in both cases the court accepting that someone who lived an essentially expat life in Spain (Flowers v Centro Medico  EWHC 2437 (QB)) or lived in Germany for the purposes of treating injuries caused in the index accident (Chowdhury v PZU SA  EWHC 3037 (QB)) nonetheless retained their residence in England.
The Court of Appeal (despite searing criticism from Bean LJ) came down in favour of the tour operator in Griffiths v TUI UK Ltd  EWCA Civ 1442, upholding the right of the defendant to leave all criticism of a claimant’s expert evidence until closing submissions, and overturning the High Court’s guidance on uncontroverted evidence. It remains to be seen whether the Supreme Court will decide that there is a point of public interest here.
The Court of Appeal decided in favour of the consumer, however, in CAA v Ryanair  EWCA Civ 76, declining to accept that strikes by airline staff should count as extraordinary circumstances under the denied boarding Regulations (Council Regulation (EC) No 261/2004). Shortly afterwards, Ryanair faced defeat again when the Supreme Court upheld the claims management system (and associated costs) of Bott & Co’s entrepreneurial approach to delayed claims in Bott & Co Solicitors Ltd v Ryanair DAC  UKSC 8.
And in virtually the last reference to the CJEU from the UK, the CJEU finally confirmed in C 708/20 (BT v Seguros Catalana Occidente) that the foreign insurer does not count as an anchor to which to join the foreign tortfeasor, rendering Keefe v Hoteles Pinero Canarias SL  EWCA Civ 598 wrongly decided from a Community perspective. It remains to be seen whether tortfeasors will nonetheless find themselves joined into English proceedings under the sunlit (or possibly shady) uplands of the common law rules.