President The Hon. Mr. Justice Silber Vice-President HHJ Crawford

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 President: The Hon. Mr.
                                       1 Chancery Lane
      Justice Silber                  London Wc2A 1LF
                                                                           Travel Law Team
  Vice-President: HHJ                0845 634 6666
                                                                             Alan Saggerson
  Crawford Lindsay QC        asaggerson@1chancerylane.com
                                                                            Matthew Chapman
                                                                            Sophie Mortimer
       Committee
                                                                               Sarah Prager
                                                                                Ian Miller
     Alan Saggerson
                                                                              Simon Trigger
     Stephen Mason
                                                                              Saleem Khalid
    Matthew Chapman
                                                                                Ben Hicks
       David Lowe
                                                                             Laura Johnson
      David Grant
                                                                             Andrew Spencer
    Michael Imperato
                                                                              Jack Harding
        Lee Hills
     Matthew Davies
   Carmen Calvo-Couto
     Nolan Mortimer




                    NEWSLETTER – May 2008
                                           Editorial

This newsletter has an aviation theme: a case note on the recent decision by Eady J in Laroche v
Spirit of Adventure. The full judgment is now available on Lawtel and the decision was very
recently reported in The Times. The observant among you will notice that this case has also
inspired the masthead for this Newsletter.

A date for your diaries: TATLA SUMMER RECEPTION
No lectures, no speeches – just an opportunity to enjoy drinks and canapés with like-minded
travel lawyer colleagues – what could be nicer on a Summer evening ...
The venue: 1 Chancery Lane, London WC2A 1LF (tel 0845 634 6666).
The date and time: 3 July 2008 at 6.30 pm.

There is no need to book – but an indication whether you are able to attend would assist
(by email to mchapman@1chancerylane.com).


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CASE NOTE

Laroche v Spirit of Adventure

[2008] EWHC 788; The Times, 23 April                could not proceed. The Claimant issued
(Eady J, QBD)                                       proceedings and the High Court was asked
                                                    to determine a number of preliminary
The facts                                           issues.
In December 2001 the Claimant was given a
£90 voucher as a gift by his friend. The            Was the Claim governed                by   the
voucher entitled him to a hot-air balloon           Warsaw Convention?
flight organized by the Defendant company.
On 20th August 2003, on a fine late summer          The term ‘Warsaw Convention’ in this
evening, the Claimant, along with other             context is potentially misleading, although it
paying passengers, clambered into the               was used as convenient shorthand by the
balloon’s wicker basket. The basket was             parties in the case. It is well-established that
separated      into   small    compartments         where an accident occurs in the course of
surrounding a central area occupied by the          international carriage by air, the air carrier’s
pilot. The balloon took off and was followed        liability is governed exclusively by the
by a Landrover driven by one of the                 provisions of the Warsaw Convention (as
Defendant’s employees, whose job it was to          amended by the Montreal Convention 1999),
track the flight path of the balloon and            which became part of English Law under the
collect it wherever it, and the passengers,         Carriage by Air Act 1961 and the Carriage By
wherever they landed. Around 35 minutes             Air Acts (Implementation of the Montreal
into the flight the wind picked up and the          Convention 1999) Order 2002. However, the
conditions suddenly deteriorated. The pilot         hot air balloon in this case had both taken
announced that he would have to land the            off and ‘landed’ (if that is the right word) in
balloon immediately. The passengers were            the rolling countryside of Kent. As a result, if
told to adopt the brace position and prepare        this was a case of carriage by air, it was
themselves for the landing. The balloon             governed by the Carriage by Air Act
crashed into the ground, lifted off again and       (Application of Provisions) Order 1967.
finally came down. The basked tipped over           Schedule 1 to the 1967 Order effectively
and was dragged for some distance by the            replicates the provisions of the Warsaw
wind before coming to a rest. As a result the       Convention in respect of non-international
Claimant sustained a bimalleolar fracture to        flights. Pursuant to Article 29 of the 1967
his left ankle. On 29th June 2004 the               Order, a claim for damages must be brought
Defendant company went into liquidation.            within 2 years of the end of the carriage. The
However, its public liability insurers,             judge concluded that the same principles of
represented by loss adjusters, indicated that       construction and interpretation should
they were prepared to negotiate with the            apply to the non-international rules as
Claimant’s solicitors. In October 2004, the         applied to the Warsaw Convention itself.
Defendant’s loss adjusters indicated their          Accordingly, following the judgment of the
desire to settle the case on commercial             House of Lords in Sidhu v British Airways
grounds. A medical expert was jointly               (1997) AC 430, if the non-international rules
instructed and negotiations continued. One          did govern the claim, and they afforded no
year later, in October 2005, and,                   remedy, then no remedy was available at all.
significantly, 2 years after the date of the
accident, the Defendant’s insurers changed          Did the flight involve the carriage of
their position and argued for the first time        passengers on board an aircraft for
that the Claim was time-barred under the            reward?
provisions of the Warsaw Convention (now,
the Montreal Convention, so far as                  Curiously, the word ‘aircraft’ is not defined
international carriage is concerned) and            in any of the international conventions, or
                                                    the domestic legislation. In Disley v Levine



                                                2
(2002) 1 WLR 785, the Court of Appeal had              failed to make any reference to the
held that a trainee pilot learning to fly a            provisions of the Athens Convention in the
paraglider with her instructor was not being           Ferry Ticket. This was a breach of Statutory
carried on a ‘aircraft’ within the meaning of          Instrument 1980/1125 and was punishable,
the 1967 Order. However, the judge in                  on summary conviction, only with a fine not
Laroche      had     little   hesitation    in         exceeding £500. However, the Court
distinguishing Disley and concluding that              concluded that the Convention applied as a
the hot air balloon was an ‘aircraft’. The             matter of law and it could not be displaced
basket was designed for the carriage of                by statutory or common law requirements
passengers, it was irrelevant (following               regarding contractual incorporation.
Fellowes v Clyde Helicopters (1997) AC 534)
that there was no fixed destination, and the           Extending or disapplying the
fact that the flight was for leisure purposes,         limitation period
rather than say a business flight, was
immaterial. Furthermore, the fact that the             Pursuant to section 651 of the Companies
Claimant himself had not paid for his £90              Act 1985 the Court has power to declare the
voucher did not mean that the flight was               dissolution of a company void on application
otherwise than for reward, since it had                by an interested party. On making such an
already been conceded by both parties that             order, the Court can also direct that the
there was a contract between the Parties.              period between dissolution of the company
                                                       and the making of the order should not
Incorporation of the Convention                        count for the purposes of calculating the
                                                       limitation period. The Claimant argued that
The Defendant’s standard terms and                     he was entitled to rely upon 651 to bring
conditions, which it was agreed applied to             himself within the relevant limitation period
the hot air balloon flight, did not refer to the       in this case. Unfortunately, the argument
Warsaw or Montreal Convention at all. The              was fundamentally misconceived. The 2-
only reference to liability for personal injury        year limitation period had expired before the
was in the form of a general disclaimer                Defendant Company was dissolved, and the
which stated that the Defendant could not              court had no power to direct that a period of
“accept responsibility for damage or injury,           time before dissolution should not count for
or be held liable for any loss of property,            the purposes of limitation. The judge also
which does not result from our negligence”.            emphasized the fact that Article 29 of the
The Claimant placed reliance on EC Council             Non-International Rules operated as a
Regulation 2027/97, which provided that                substantive, rather than merely a procedural
information about the Warsaw Convention                bar to bringing a claim after 2 years. In other
should be set out in the ‘ticket document’ in          words, Article 29 extinguishes the claim
plain and intelligible language. It was argued         itself, as well as the remedy, unlike the
that since the Defendant had not even raised           provisions of the Limitation Act 1980. The
the application of the Convention until 2              Claimant did not seek to rely upon Section
years after the accident, it was not open to it        33 of the Limitation Act 1980 in an attempt
to rely upon it now. The judge rejected this           to disapply the 2-year period. Again, the
argument, relying upon dicta from Nelson J             answer to whether this would have been
at First Instance in the DVT litigation to the         possible is provided by case-law under the
effect that the Regulation did not create a            Athens Convention. In Higham v Stena
free-standing cause of action where the                Sealink [1996] 2 Lloyds Rep 26, the Court of
Convention did not provide a remedy. It was            Appeal held that a claimant who had issued
also relevant that the Regulation only                 a claim after the expiry of the 2 year time-
applied to ‘Community Air Carriers’. It is             limit under the Convention could not rely
submitted that this is unquestionably the              upon section 33 of the Limitation Act. The
right decision on this issue. The judge may            reasoning was 2-fold. First of all the effect of
well have been fortified in his conclusion if          section 33 was to disapply completely a
he had been referred to the decision of                period which had already run its course and
Hobhouse J in R.G. Mayor v P&O Ferries                 therefore could not possibly be treated as a
(‘The Lion) [1990], which considered a                 ground for ‘suspension or interruption’.
similar point under the Athens Convention.             Furthermore, even if s.33 was a ‘suspension
In R.G. Mayor, the Defendant carrier had               or interruption’, it expressly referred to “the


                                                   3
provisions of section 11 or 11A or 12 of the
(Limitation) Act” and therefore could not be
construed as embracing the relevant Article
of the Athens Convention.

                                                      CPR UPDATE: Documents mentioned
Estoppel and Waiver                                   in statements of case etc and legal
                                                      professional privilege.
The Claimant’s final argument was based on
estoppel and waiver. It was alleged that              Expandable Limited v Rubin [2008]
because the Defendant’s insurers had                  EWCA Civ 59
purported to ‘deal with the claim’ as if it           Court of Appeal: Rix, Jacob & Forbes LJJ.
were a claim for breach of contract or
negligence, and on the common assumption              The Facts
that a 3-year limitation period applied, they
were now estopped from relying upon the 2-            The Defendant, in making an interlocutory
year limit under the Non-International                application, referred in his witness
Rules, or alternatively that they had waived          statement in support of the application to
their right to do so. The judge rejected this         various documents, including a letter to him
argument on the basis that since the Non-             from his solicitors. The Claimant applied for
International Rules applied as a matter of            an order allowing inspection of that letter.
law, and provided the exclusive remedy (see           The Defendant resisted the application on
Sidhu) they could not be ‘ousted’ by                  the grounds that the letter was privileged.
reference to domestic law or rules of                 The Registrar dismissed the application; the
evidence. Furthermore, since the 2-year               Judge granted permission to appeal, but
time limit under the convention operated              refused the appeal; the single Lord Justice
not only to extinguish the remedy, but also           granted permission to appeal.
the right of action, it was not now possible to
‘revive’ by reference to common law                   The Judgment of the Court of Appeal
principles of estoppel or waiver.
                                                      Pursuant to CPR 31.14, a party may inspect a
Conclusion                                            document mentioned in a witness
                                                      statement, and since the Defendant had
This case stands a salutary reminder that             made direct reference to the letter in his
both the procedural and substantive                   statement, it fell squarely within that
provisions of the various International               provision. However, the letter was a
Conventions should always be considered               communication between solicitor and client,
where an accident has occurred in the course          and was therefore privileged. The allusion to
of carriage by air or by sea, whether                 the letter was not an automatic or absolute
domestically or internationally. The                  waiver of the privilege.
Conventions, where they apply, do so by
operation of law and provide the only                 [Comment: This case is another useful
remedy for damages, to the exclusion of the           illustration that there is an exception to
common law and statute alike. If there is any         every rule. At first blush, it might seem that
doubt as to whether the conventions apply,            CPR Part 31.14 provides that every
protective proceedings should be issued               document alluded to in a witness statement
within the 2-year limitation period and the           will automatically become discloseable.
Particulars of Claim can be drafted to plead          Nevertheless, the rules relating to legal
a cause of action under the Conventions, and          professional privilege seem to trump the
at common law, in the alternative.                    CPR, with the effect that, even where a party
                                                      refers to a privileged document in a witness
                                                      statement, the document will not necessarily
                                                      be rendered discloseable].




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