Thomas Cook Tour Operations Ltd and Another v Louis Hotels S.A
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Swift Dbe |
| Judgment Date | 29 July 2013 |
| Neutral Citation | [2013] EWHC 2139 (QB) |
| Court | Queen's Bench Division |
| Date | 29 July 2013 |
| Docket Number | Case No: HQ13X02432 |
[2013] EWHC 2139 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Swift Dbe
Case No: HQ13X02432
Mr Simon Browne-Wilkinson QC (instructed by Field Fisher Waterhouse Solicitors) for the Claimants
Mr Grahame Aldous QC (instructed by Hill Dickinson Solicitors) for the Defendant
Hearing date: 13 June 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an application by the claimants ( two companies in the Thomas Cook travel group) for summary judgment in their claim against the defendant. Before me at the hearing on 13 June 2013 were four witness statements from the claimants' solicitor, Mr Rhys Griffiths and one witness statement from the defendant's solicitor, Ms Maria Pittordis. Where necessary, I gave permission for Mr Griffiths' witness statements to be filed out of time. Counsel for the claimants, Mr Simon Browne-Wilkinson, and for the defendant, Mr Grahame Aldous QC, had filed Skeleton Arguments and I heard oral submissions from them.
The background
In October 2006, Mr Shepherd, his partner Ms Beatson and their two children, Christianne and Robert, were staying in room 112 at the Louis Corcyra Beach Hotel, Corfu. They had booked their holiday through the second claimant. On 26 October 2006, Christianne and Robert died from carbon monoxide poisoning whilst asleep in room 112. Carbon monoxide had escaped from the gas boiler that served the water heating unit in room 112. Claims for damages were subsequently made against a number of parties, including the owner of the hotel, Grecamer SA (whose assets and liabilities have since been transferred to the defendant, the name by which I shall henceforth refer to Grecamer) in respect of the children's deaths, and for personal injuries, loss and damage sustained by their parents. Those claims were settled by the defendant.
The claimants' claim
The claimants claim damages in respect of the financial loss and expenses which they allege were incurred by them as a result of the tragedy. As a result of the incident, two employees of the Thomas Cook travel group were charged with (and subsequently acquitted of) criminal offences in Greece and there was a police investigation into the accident in the UK. An inquest into the children's deaths is to be resumed later this year. The claimants have incurred the costs of legal and other advice in the course of those proceedings. In addition, they had to pay compensation and/or make refunds to customers affected by the incident. They also claim to have incurred expenses and loss of profit as a result of cancellations of other bookings. The claimants also had to deal with the inevitable media interest in the tragedy and incurred the cost of paying experts to assist with that. They allege that they also suffered loss of revenue as a result of the fact that their employees had to spend a considerable proportion of their working time dealing with the aftermath of the tragedy.
The claimants' claim against the defendant is based first on the alleged breach by the defendant of a contract dated 31 May 2005 ("the holiday contract") which was made between the second claimant and the defendant for the provision by the defendant to the second claimant's customers of rooms and other services during the 2006 summer holiday season. In addition to breach of contract, the claimants allege tortious breaches of duty on the part of the defendant. Up to October 2007, it is claimed that financial losses and expenses amounting to £1,101,991.23 were incurred by the second claimant. In October 2007, it is alleged that the first claimant succeeded to the second claimant's rights and liabilities under the holiday contract; thereafter the first claimant's loss and damage is said to amount to £4,252,109.75.
In its Defence, the defendant denied breach of contract and breach of duty and alleged that the carbon monoxide leak was caused by the fault of the independent contractors which it employed to carry out boiler maintenance at the hotel. It denied any liability for the damages claimed.
The relevant test on an application for summary judgment
CPR 24.2 provides that the court may give summary judgment against a defendant on the whole of a claim or on a particular issue if it considers that the defendant has no real prospect of successfully defending the claim or issue and that there is no other compelling reason why the case or issue should be disposed of at a trial.
In this case, the claimants seek summary judgment only in relation to the alleged breach of contract. They submit that, if I were to grant summary judgment in their favour on the breach of contract, determination of the tortious breaches of duty should await the outcome of the issues of causation and assessment of damages.
The holiday contract
Room 112 was provided to the second claimant by the defendant for the use of its customers pursuant to the holiday contract. Clause 1 of the holiday contract provided:
"The Owner agrees to provide to the Tour Operator, or otherwise as directed by the Tour Operator, the exclusive use of the rooms, facilities, meals and other services ("the Arrangements") … specified in this Contract."
The claimants rely on breaches of Clauses 14 and 36 of the holiday contract. Clause 14 provided:
"The Owner undertakes that all Arrangements at the Tourist Establishment and any other services and facilities are, firstly, safe and to a proper standard to avoid any, or any risk of, injury to health and, secondly, comply fully with national, local and trade regulations and/or codes of practice relating to hygiene, fire, safety, child protection and other general standards (including EC Directives)."
Clause 36 stated:
"The Owner agrees to indemnify the Tour Operator for the full amount of all damages, expenses, losses, compensation, fines, costs (including legal costs) and/or any sum of whatever nature which, for any reason, the Tour Operator incurs or becomes responsible for as a result directly or indirectly of any breach of any nature whatsoever of the Contract by the Owner and/or any act(s) and/or omissions(s) of the Owner. For the avoidance of doubt, the Owner is responsible for the performance of this Contract regardless of whether any act, omission or default is by its staff (whether employed or not by the Owner), agents, suppliers and/or sub-contractors."
The claimants' case is that it is plain that the "Arrangements" provided by the defendant for the use of the Shepherd family were not safe. As a result the defendant was in breach of Clause 14 and was therefore liable to indemnify the claimants under the provisions of Clause 36. This it has refused to do.
The defendant argues that the water heating system did not come within the "Arrangements" specified in the holiday contract and the defendant is therefore not in breach of Clause 14. Furthermore, it is said that, even if there was a breach of Clause 14, the second claimant was negligent for failing to carry out a proper inspection of the hotel and/or the water heating system and, in those circumstances, the defendant cannot be held liable to indemnify the claimants pursuant to Clause 36.
Before dealing with those rival contentions, it is necessary to refer to two preliminary matters. The first of these is the question of whether an English court has jurisdiction to determine the claimants' claim.
Jurisdiction
On receipt of the claimants' claim, the defendant's solicitors wrote to the claimants' solicitors informing them that the defendant had filed an Acknowledgment of Service contending that the English court had no jurisdiction to deal with the claim and stating the defendant's intention to make an application under CPR Part 11 contesting jurisdiction.
Subsequently, however, the defendant's solicitors wrote a further letter, telling the claimants' solicitors that the defendant did not propose to make an application under CPR11 after all. The letter continued:
"This is because, on advice, our client considers that it has a good argument that this case falls within the exclusive jurisdiction of the Greek courts, as being principally concerned with a tenancy of immovable property within the autonomous meaning of "tenancy" in Article 22(1) of the Brussels I Regulation. This is because the proceedings clearly involve the use of the immovable property, namely our client's hotel rooms …
The consequence of this point is that participation in the proceedings would not confer jurisdiction on the English courts so as to override the exception in Article 24 of the Regulation, and the purported acceptance of jurisdiction by the English courts in the face of exclusive Greek jurisdiction would, by reason of Article 35, prevent the recognition in Greece, Cyprus or elsewhere within the EU and EFTA states of any English judgment which your clients might obtain.
We therefore wish to make it clear at this stage that by entering an appearance and not disputing the jurisdiction our client is not accepting that the English court has jurisdiction and reserves all its rights in that regard."
The letter went on to invite the claimants to withdraw the English action and commence proceedings in Greece instead. The claimants did not act on that invitation. The defendant's position is that it does not wish to challenge the English court's jurisdiction to hear the claim. Instead, it wishes to reserve its arguments on jurisdiction in order to put them before a Greek court...
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Steven John Williams v John Adrian Simm
...this had been rectified by a fourth witness statement made by Ellen Yeates on 12 January 2021, cf. Thomas Cook v Louis Hotels SA [2013] EWHC 2139 (QB) at [38]. No prejudice had been demonstrated, and I considered that any defect could and should be waived. 12.3. So far as 24 PD para 2(5) w......
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Steven John Williams v John Adrian Simm
...this had been rectified by a fourth witness statement made by Ellen Yeates on 12 January 2021, cf. Thomas Cook v Louis Hotels SA [2013] EWHC 2139 (QB) at [38]. No prejudice had been demonstrated, and I considered that any defect could and should be waived. 12.3. So far as 24 PD para 2(5) w......