Mr Bernard Silverman v Ryanair DAC
| Jurisdiction | England & Wales |
| Judge | Master McCloud |
| Judgment Date | 11 November 2021 |
| Neutral Citation | [2021] EWHC 2955 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No. QB-2019-002198 |
[2021] EWHC 2955 (QB)
IN THE HIGH COURT QUEEN'S BENCH DIVISION
Master McCloud
Claim No. QB-2019-002198
Counsel for the Claimant Mr Max Archer instructed by Irwin Mitchell Solicitors.
Counsel for the Defendant Mr Christopher Loxton instructed by Kennedys Solicitors.
Domestic authorities cited by parties or referred to in judgment:
Preston v Hunting Air Transport [1956] 1 QB 454
The Tatry [1994] ECRI 543
RSC Plc v Digital FZE (Cyprus) Ltd [2005] EWHC 1408
Deep Vein Thrombosis v Air Travel Group Litigation [2006] 1 AC 495 (HL)
Iranian Offshore Engineering and Construction Co v Dean [2018] EWHC 2759 (Comm.)
Suppipaj & Ors v Narondej and Ors [2020] EWHC 3191 (Comm.)
International authorities cited by the parties or referred to in judgment:
Zicherman v Korean Air Lines Co 516 US 217 (1996)
El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 U.S. 155 (1999)
Grueff v Virgin Australian Airlines Pty Ltd [2021] FCA 501
Authorities referred to in judgment but not before the court (referred to in other authorities/sources cited):
Surprenant v Air Canada [1973] CA 107 (Quebec CA)
Bochory v Pan American World Airways Inc (1961) 24 ILR 630
Parkes Shire Council v South West Helicopters Pty Ltd [2019] HCA 14
Air France v Saks 470 US 392 (1985)
Other material cited:
The Convention for the Unification of Certain Rules for International Carriage by Air (“The Montreal Convention”)
Rome I (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I))
Rome II (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)) Dicey, Morris and Collins on the Conflict of Laws
Shawcross and Beaumont: Air law
Thomas Kadner Graziano (2016) THE LAW APPLICABLE TO TORT CLAIMS BROUGHT BY SECONDARY VICTIMS THE FLORIN LAZAR v. ALLIANZ SPA AND GERMANWINGS CASES” Yearbook of Private International Law XVII.
Accessible language summary (not part of judgment)
This summary has a Flesch score of above 50 and was written to ensure accessibility of the judgment to readers with average reading ability .
The claimant was injured whilst going down stairs at an airport terminal in England. The airline was Ryanair. The terms and conditions of the ticket which allowed the Claimant to fly said that Irish Law governed the agreement and how to interpret it unless the Montreal Convention provided otherwise. The Claimant said that Irish Law applies to the contract under the Terms and Conditions. The Defendant said that the contract paragraph did not apply to the claim and that English Law had to apply. The Court held that Irish Law applies to the remedies under the contract.
JUDGMENT ( CORRECTED and re-issued 11/11/21 for typographical and citation slips)
This is a trial which arises from personal injury sustained by the claimant whilst whilst descending a set of stairs from the terminal on the way to the aircraft operated by the Defendant 1.
This trial relates to the narrow but somewhat difficult question of whether the applicable law is that of the Republic of Ireland or that of England. The question was simply framed by my order of 7 January 2021 thus “whether the law of Ireland or the Law of England and Wales shall apply to the claim”.
The point is one of significance to aviation law practitioners because it is a determination as to whether an airline can disapply its own choice of law clauses and also it is a decision which relates to how the Montreal Convention (‘the Convention’ – strictly ‘The Convention for the Unification of Certain Rules for International Carriage by Air’) interacts with the choice of law rules of the Forum. It is common ground that the Convention applies.
In this instance the Claimant's journey was between East Midlands Airport in England and the Berlin Schönefeld Airport, in Germany. The Claimant alleges he suffered bodily whilst leaving the terminal on his way to the aircraft, in course of embarkation. The English courts have jurisdiction but this case concerns applicable law.
The Claimant's case is that the law of the Republic of Ireland applies, due to the provisions of the Defendant's Terms and Conditions containing a choice of law clause, whereas the Defendants argue that, contrary to what is said in their own Terms and Conditions, the law of England applies ie the law of the Forum, insofar as the Convention does not indicate jurisdiction, and that that conclusion includes in particular the question of what damages are recoverable (what Scalia J in a decision referred to later refers to as legally cognizable damages). It is contended that the law of Ireland would differ materially in respect of quantum. It is not contended that it makes any difference to liability. Under Art 33 of the Convention the Claimant had a choice of a range of fora in which to issue his claim, and he could for example have issued if he wished in Ireland, but he issued in England, understandably given that he lives here.
The Convention makes no express provision as to quantum in respect of choice of law, and the Claimant says the Convention operates simply as a ‘pass-through’ to the Forum's own choice of law rules, and there you select the applicable law (and hence that the contractual choice of law provisions of the Rome I Regulation would apply in this forum, and the applicable law would be that of the Republic, per the contract).
By contrast the Defendants say the Convention mandates that the law of the Forum itself governs quantum, and hence that English law applies irrespective of the provisions in the Terms and Conditions applicable to this flight, and hence that its own choice of law clause is of no effect. If that is not correct and the question of choice of law falls to be considered then they say that Rome II – choice of law for non-contractual obligations — governs the proper law and not Rome I – choice of law for contractual obligations.
The Claimant's argument (and references to relevant terms and Articles)
The relevant Terms of the Contract by which Mr Silverman flew are the general terms and conditions of carriage for Ryanair. Clause 2.2 says that if any provision of the terms is invalid under applicable law the remaining terms remain valid. The Clause in issue here is 2.4: Governing Law:
“ Except as otherwise provided by the Convention or applicable law, your contract of carriage with us, these Terms and Conditions of Carriage and our Regulations shall be governed by and interpreted in accordance with the laws of Ireland and any dispute arising out of or in connection with this contract shall be subject to the jurisdiction of the Irish Courts.”
The clause governs “any” dispute arising out of the contract. It was common ground that the jurisdiction clause element was invalid because the Montreal Convention has the effect of overriding that provision and contains a self-contained jurisdiction regime.
Notwithstanding the above the Claimant's position was that clause 2.2 meant that the invalidity of the jurisdiction clause did not affect the interpretative element insofar as it did not relate to matters where the Convention provides otherwise. Liability for Damage therefore was governed on the Claimant's case by the Convention (as in fact is also expressly mentioned in the contract elsewhere, where the Convention is incorporated albeit that that adds nothing legally) but the approach to quantum should, says the Claimant, be governed by the choice of law clause (ie Art. 2.4).
Art. 2.4 of the contract, as far as the Defendant was concerned, has a different effect. It does not specify that Irish law applies to the interpretation of the Convention or the assessment of damages under the Convention, but only to the contract and to the Defendants' regulations, and there was no need to consider the choice of law clause, therefore, on the question of the approach to assessment of quantum. The result was that under the Convention the Lex Fori applies, that is to say the law of England where this case is brought.
The Claimant accepted that Art. 2.4 of the contract does not say expressly that Irish Law applies to quantum or to the interpretation of the Convention, but the Convention makes no arrangements for assessment of damages or choice of law for that, which gives rise to an obvious answer on the issue as to how to approach the applicable law, which is to apply the contractual choice of law clause, with the effect that Irish Law applies to assessment of quantum.
The Montreal Convention 1999 provisions of relevance
It was not in dispute that one must interpret the Convention in accordance with principles of Comity between nations. Choice of law as to how to approach that is therefore important given that there are many signatories to the Convention and many different local law approaches to calculation of quantum. The predecessor to the Convention was the Warsaw Convention and no points were taken arguing that it was impermissible to consider decisions of courts in respect of that earlier and similar Convention or that there was any fundamental difference between the two as regards the matters in issue here.
. The Convention was brought into force in the UK by way of the Carriage by Air Acts Order 2002 and it also has the force of law, and as we have seen is incorporated into the terms of carriage in this case. The Convention applies to all international carriage (including for reward) of persons by air transport undertakings such as Ryan...
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