Jurisdiction and indirect damage: In Pike & anr v The Indian Hotels Company Limited 32 the High Court was asked to determine yet again whether indirect or secondary damage sustained within the jurisdiction is sufficient to found jurisdiction at common law. Two British backpackers had treated themselves to a night of luxury at the Taj Mahal Palace Hotel in Mumbai. The hotel sustained a terrorist attack. The claimants suffered spinal and psychiatric injuries in the course of their escape. Proceedings  were brought  in London against the Indian company operating the hotel. The company challenged the court’s jurisdiction, and resisted service out of jurisdiction on forum conveniens grounds.

Central to the claimants’ application to serve the claim outside the jurisdiction was their suffering of ongoing pain, loss of amenity, and financial losses having returned to England and Wales. They relied upon paragraph 3.1(9)(a) of the Practice Direction 6B. This provides that claimants may serve a claim form out of the jurisdiction with the permission of the court where “damage was sustained within the jurisdiction.” The defendants submitted that this 1987 amendment to the CPR had been introduced to bring English law into line with the Brussels regime. Under the Brussels Regulation, the European Court of Justice did not recognise indirect or secondary damage as a basis forjurisdiction (Case C-220/88 Dumez France v Hessische Landesbank 33.

Mr Justice Stewart noted that on four previous occasions, service out had been permitted at first instance in similar circumstances (the sole appeal, in Booth v Phillips 34, had been settled before judgment). He reasoned that the ordinary and natural meaning of “damage” included the physical and economic injury and losses the claimants continued to suffer in the UK. The availability at common law of a stay on forum conveniens grounds operated as a “proper and proportionate brake” on the over-exercise of jurisdiction. The Brussels scheme of jurisdiction, which generally confers jurisdiction as of right, was “fundamentally different”.

In exercising his discretion, Mr Justice Stewart noted that the claims would be delayed by some 15 to 20 years if brought in the Bombay High Court. A delay of this order, he reasoned, “cannot possibly be said to be proper access to justice”. That conclusion was given “extra force”, he found, by the evidence that the claimants would be unable to litigate in India because they would be unable to fund their claim without the benefit of a conditional fee agreement available under the law of England and Wales.

The defendant appealed. The hearing is listed in June 2014. A decade after Booth v Phillips, the Court of Appeal will thus finally grapple with the availability of jurisdiction in cases where only the secondary consequences of an accident have been experienced in the UK. The outcome of the appeal will be watched closely by those advising claimants injured in countries where access to justice is fraught with delay and funding problems.

The Defendant is represented by Neil Block QC and Bernhard Doherty.

Limitation under the Athens Convention: Does the two-year limitation period in Article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea bar the remedy or extinguish the right? In Feest v South West Strategic Health Authority & anr 35. His Honour Judge Havelock-Allan QC opted for the latter construction. The claimant brought proceedings for injuries sustained on a rigid inflatable boat on a work-related trip across the Bristol Channel. Having missed the two-year deadline for claims against the carrier, she sued her employer. Her employers, in turn, sought a contribution from the owners and operators of the ship.

Article 16 of the Athens Convention provides that any action for damages against the carrier “shall be time- barred after a period of two years”. The contribution claim was founded, it was argued by the employers, on a separate cause of action created by section 1 of the Civil Liability (Contribution Act). The judge considered the language of Article 16 wide enough to bar such a claim. He noted that most of the countries which had acceded to the Athens Convention  treated Article 16 as extinguishing entirely the right of action. The common law’s assumption that limitation provisions were procedural in character had been in retreat since the passage of the Foreign Limitation Periods Act 1984. The Convention itself required a construction without reference to domestic law, based “on broad principles of general acceptation” having regard to its international context.

For those advising potential co-defendants to passenger claims, this decision confirms the critical importance of pre-empting the second anniversary of the date of embarkation. It may be necessary, in order to preserve a potential contribution claim, to issue a protective claim even before the principal action is afoot.

Assessment of Damages under Rome II: There has been a good deal of academic speculation about the reach of Article 15(c) of Council Regulation 864/2007 on the law applicable to non-contractual obligations (“Rome II”). It provides that the law applicable to the tort governs “the existence, nature and the assessment of damages or the remedy claimed”. Members of Chambers have previously suggested that these words signalled a significant change of approach (Doherty: Accidents Abroad, 1st edn (2009) at 262-3). The common law tradition had regarded an assessment of damages as a matter of the procedural law of the forum. Under Rome II, an English court would apply foreign statutory scales for the award of damages.

In Wall v Mutuelle de Poitiers Assurances 36 the Court of Appeal went even further. The claimant suffered a motorcycle accident on a short holiday to France. He brought an action against the insurers of the French motorist in England. The “law of the country in which damage occurred” was construed to comprise even judicial conventions and practices. Tariffs, guidelines or formulae equivalent to the Judicial College Guidelines in England and Wales could be referred to, regardless of whether these had been enshrined in formal legal form. The Court of Appeal noted the practice of French jurists, magistrates and insurers to have regard to the “Dintilhac Headings”, an extra-statutory list of pecuniary and non-pecuniary heads of damage compiled and named after the President of the Second Civil Chamber of the Court of Cassation. It further referred to the prevailing tariffs for non-pecuniary damage issued by the Paris Court of Appeal. Longmore LJ highlighted the policy concern to achieve an outcome “as near as possible” to the decision of a French court.

That said, the decision in Wall demonstrates also the limits to the lex loci deliciti’s encroachment upon matters of procedure. A suggestion that CPR Part 35 should be displaced by the French custom of appointing a single agreed (or court appointed) expert to speak on all issues requiring expertise was rejected. Longmore LJ had little doubt that, in the reverse situation, a French court would think it unhelpful “to put it mildly” to be presented with an English-style list of experts in different disciplines for each party. Jackson LJ, in a concurring judgment, pointed out that the evidential practices of each jurisdiction informed its costs rules. He cited the German fixed costs regime. This would become unworkable if Rome II required the adoption of common law evidential practices in an action for personal injury contested in this civil law jurisdiction.

Package Tours – Local Standards: The Court of Appeal’s in Japp v Virgin Holidays Limited 37seized one, and missed another, opportunity to clarify the scope of the rule in Wilson v Best Travel Ltd 38.This requires a tour operator to verify compliance of accommodation offered as part of a package with local safety standards. As in Wilson the focus of the claimant’s personal injury claim was the use of ¼ inch glass in a set of sliding doors. The claimant had injured herself walking into these doors from the balcony of her Barbadian hotel room. The glass shattered, causing injury to her body. By regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992, the British tour operator was liable for failures in the exercise of reasonable care in the operation of the hotel. The Court of Appeal held that this duty of care was to be considered, where the question was one of compliance of structural features of the building with local standards, by reference to the position applicable at the time of its design and construction. The matter may be different, it was accepted, where applicable standards themselves stipulated further action to be taken in relation to structural features.

The defendant’s appeal was nonetheless dismissed. A Barbados Building Code had been in existence for almost ten years when the non-compliant balcony doors were installed. The Code was moreover observed sufficiently widely, the judge had been entitled to find, to express the essential minimum standards relating to the use of glass.

In view of this conclusion, it was not necessary for the Court to consider the claimant’s alternative argument that mere compliance with local custom and practice was not sufficient to fulfil the hotel’s duty of care in circumstances where it was or ought to have been aware of the danger created by plate glass patio doors. Richards LJ, giving the lead judgment, expressed no view on that issue.