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Accidents - Choice of Law and Jurisdiction

Document Cited authorities 117 Cited in Related
Vincent
AuthorMatthew Chapman/Sarah Prager/Jack Harding/Dominique Smith/Thomas Yarrow/Henk Soede
Pages361-412

Chapter 9


Accidents – Choice of Law and Jurisdiction

9.1 The chapters in which the Package Travel Regulations 1992 and 2018 and the common law approach to the contractual duties of travel organisers are considered proceeded on the assumption that the consumer is likely to be able to obtain remedies in the courts of England and Wales and that the laws of England and Wales will apply.1Even where the English2courts should apply foreign standards,3these foreign standards are applicable as a matter of English law. That is to say, English law requires that, in order to discharge its implied contractual duties (for example, to take reasonable care or to ensure that reasonable care is taken), the organiser or the other party to the contract need only ensure that local standards of health, safety and hygiene are met. The question for the court in these circumstances is: what does reasonable care require of the organiser? Where an English travel contract exists between traveller and organiser and the traveller’s difficulties have been caused by a tour operator or a tour operator’s subcontractors, the traveller simply sues the organiser for breach of the English contract which was almost certainly concluded in England. There are many circumstances, however, where the traveller has an accident which is not attributable in any way to breach of contract or other duty on the part of the travel organiser.

9.2 This chapter considers those accidents or incidents that may affect the traveller who has not made travel arrangements through a party based in England and Wales or whose problems derive from an accident or incident completely unrelated to any package or travel contract made in the United Kingdom. In these examples, the English traveller may be the aggrieved party, but equally, it may be

1Tour operators invariably state in their terms and conditions that the law of the constituent part of the United Kingdom from where the consumer is booking apply to a package contract and that the courts of that part of the United Kingdom will have jurisdiction.

2For brevity in this chapter, ‘English’ is taken to mean ‘English and Welsh’ in the context of the jurisdiction.

3Wilson v Best Travel Ltd [1993] 1 All ER 353 (QBD) and other cases discussed in earlier chapters.

362 Saggerson on Travel Law and Litigation

important for the English traveller to appreciate those circumstances in which, as a tortfeasor, they may be subject to the jurisdiction of foreign courts. Such incidents would include the following obvious examples:

ƒ road accidents between persons of different nationalities;
ƒ skiing or other sports-related accidents between persons of different nationalities;
ƒ food poisoning or other illnesses caused by facilities or services that are unrelated to any contractual arrangements made in the United Kingdom;
ƒ quality complaints for those who have organised their travel arrangements independently.

9.3 The motorist travelling in France who has a collision with a Dutch driver is unlikely to have any contractual remedy against a package organiser based in England and Wales. The traveller injured in a private hire jet-ski accident in the Mediterranean may have no recourse against their tour operator. Similarly, the family poisoned as a result of poor hygiene in a Greek restaurant in Rhodes may have no comeback against any party based in England. There are still many travellers – both for leisure and business purposes – who are not travelling as a result of contracts made through agents or organisers in this country and many more who are not travelling pursuant to regulated package contracts.

9.4 In any of the above examples the following two questions are of fundamental importance:

ƒ Does the English court have jurisdiction over the dispute (in other words, can proceedings be issued and the action tried in this country)?

ƒ If the English court has jurisdiction, which law should be applied in resolving the dispute?

9.5 It is not only feasible, but commonplace to encounter circumstances in which the English courts have jurisdiction over a dispute, but where the applicable law will be the law of another country.

JURISDICTION

9.6 Whether or not the courts of England and Wales or any other country have jurisdiction over a dispute depends on the law of that country. Accordingly, if a claimant wants to take action in England, English rules of jurisdiction apply. If an English litigant is made the object of proceedings in Spain, it is the Spanish rules on jurisdiction which will dictate whether or not the English defendant is subject to the jurisdiction of the local court.

9.7 So, when can proceedings be issued and an action tried in the courts of England and Wales? Prior to the United Kingdom’s withdrawal from the European Union and the EEA,4the answer to this question was determined by the rules of four different jurisdictional regimes, whose application depended on whether the international element of the dispute involved different jurisdictions within the United Kingdom, the European Union, the EFTA,5or the rest of the world.

9.8 Brexit has substantially altered the landscape, with the splintered regimes now having undergone a great deal of harmonisation. The regime of the European Union as set out in (Brussels ‘recast’) Regulation 1215/2012 is no longer applicable in the United Kingdom for new proceedings commenced after 1 January 2021. Similarly, as the United Kingdom’s participation in the Lugano Convention6(which applies to the European Union and the additional countries of the EFTA7) was contingent on membership of the European Union and/or the EEA/EFTA, the provisions of that regime no longer apply domestically as of the same date.8Under the terms of the Withdrawal Agreement9and the EEA Separation Agreement,10there are transitional provisions which continue to apply Regulation 1215/2012 and Lugano Converntion rules to cases commenced before 1 January 2021. The readers is referred to previous editions of this work for a detailed exposition of the rules applicable to any such cases.

9.9 What remains is the old common law regime with its newly expanded scope, supplemented by the Civil Jurisdiction and Judgments Act 1982. The 1982 Act has been heavily amended to remove implementations of the Brussels– Lugano rules, but preserves certain provisions relating to consumer and employment disputes, which the United Kingdom made a political decision to adopt unilaterally. The 1982 Act also, as before, continues to apply a modified form of the Brussels–Lugano rule-set to disputes involving constituent parts of the United Kingdom.

4European Economic Area.

5European Free Trade Association.

6 Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and

Commercial Matters [2007] OJ L 339/3. The Convention entered into force for Norway on 1 January 2010, for Switzerland on 1 January 2011 and for Iceland on 1 May 2011.

7Norway, Iceland and Switzerland.

8It had been a policy aim of the UK Government to seek to accede to the Lugano Convention as a member state in its own right following the conclusion of the Brexit process, but that approach was rejected by the European Union, which would be required to consent.

9Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community [2019] OJ C 3841/1.

10https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/

854219/WAB_Fact_Sheet_-_EEA_EFTA.pdf.

364 Saggerson on Travel Law and Litigation

9.10 The common law regime, the retained consumer and employment provisions, and the ‘Modified Convention’ for internal UK disputes are considered in turn.

The common law rules on jurisdiction

9.11 Under common law, the courts of England and Wales have jurisdiction over defendants where:

ƒ the defendant submits to the jurisdiction of the English court;
ƒ the defendant is validly served with the initiating process and the defendant does not apply for, or is refused, a stay of proceedings on the grounds that England is not the most suitable forum.

Submission to the jurisdiction

9.12 A defendant who submits (deliberately or otherwise) to the jurisdiction of the English courts by participating in the proceedings – namely, entering an appearance without challenging the jurisdiction of the court at the first available opportunity – will be bound by that submission.11Participation in proceedings on the merits is not prejudicial to a defendant who challenges jurisdiction, provided the jurisdictional challenge is entered before or simultaneously with a substantive defence. The CPR 199812make provision for a defendant to challenge the jurisdiction of the court at a preliminary stage. In the light of the CPR 1998, it is unlikely that a defendant would be either required or able to participate substantively in the proceedings once a jurisdictional challenge has been entered. It will be remembered that procedural rules vary from place to place, though, and the defendant domiciled in England who finds himself the target of litigation elsewhere is subject to the procedural rules of the local forum.

9.13 In England it is now unlikely that a defendant would get as far as filing a defence on the merits before mounting a jurisdictional challenge. Rule 11(1) to
(5) of the CPR 1998 provides as follows:

(1) A defendant who wishes to—

(a) dispute the court’s jurisdiction to try a claim; or
(b) argue that the court should not exercise its jurisdiction,

11See also the new section 15D of the Civil Jurisdiction and Judgments Act 1982 (discussed below), which retains the equivalent provision from the Brussels–Lugano regime.

12CPR 1998, Part 11.

may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction it may have.
(2) A defendant who wishes to make such an application must first file an acknowledgement of service in accordance...

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