YOU’RE FIRED: A LITIGATOR ON THE APPRENTICE 7: PLANE COMMONSENSE WAS JUST MISSING: ONE LAWYER GONE, THE OTHER INVISIBLE

This week one of our lawyers on the Apprentice got fired. Law Graduate Kurran did not make the grade, he got to take the taxi ride of shame. That leaves solicitor Sarah Ann as the only lawyer remaining. Kurran’s team did a pretty bad job in the “branding”  and designing a short t.v. advert for  a budget airline.  They did a worse job in designing an airline logo that contained an explosion and a air steward uniform that was of no practical use.

 

THE TASK: DESIGN YOUR OWN AIRLINE

Kurran was project leader in a task that involved designing a budget airline brand. He lost to a team that had “Highway to Hell” as  background music in its advert. He lost because, basically, his team’s logo for an airline was reminiscent of Jerry Lee Lewis’s “Great Balls of Fire”.

NO LACK OF BELIEF IN HIS OWN ABILITIES

I mentioned last week that Kurran has no lack of of belief in his own abilities. On being told the task he said “Everything I’ve done in my life has led to this moment”.   So those contract, tort and land law classes obviously set a clear path towards managing a team designing a brand for an airline.

THE DANGERS OF MOVING AWAY FROM THE PLAN

One of the most dangerous things in litigation is to have a plan and then abandon that plan almost immediately. That is what Kurran did in relation to the making of his advert.  Hours were spent preparing a “storyboard”, all of that was dropped the moment the team arrived on location: “I can direct a really fantastic advert”, “Just trust me on this”. When it came to making the pitch Kurran was insistent that he was made “captain”.   None of his self-declared skills saved him from being fired.

BUT WE STILL LIKED HIM

Kurran knew he was on the way out.  In previous weeks he had sat back in the house stating, quite openly, Lord Sugar is going to open that door and sack me.  His style of leadership was to “lead from the back of the pack”.  He is one of those people that needs a few rough edges added to him. Lord Sugar said he hopes he does well. So do I.

SARAH ANN AND THE CLOAK OF INVISIBILITY

If Sarah Ann was quite last week this week she was invisible. I had to check the website to make sure she is still in the programme.  She is. That is about all I can report. If this is a deliberate strategy it is being done deliberately.

 

AIRLINES AND THE LITIGATION LAWYER

Lawyers need to be wary of airlines, aircraft and airports because they are subject to very different limitation periods.

If any injury is suffered within or near an aircraft the safest assumption is that the limitation period is two years.  The same applies if an injury occurs in an airport. This applies to alll itigants, including children and those without capacity.

 

THE CARRIAGE BY AIR ACT 1961

The crucial thing here is that there is a two year limitation period for a claim under the Act . At the end of the two year limitation period the right to damages is extinguished.  This applies to all passengers, minors and protected parties.  There is no scope to rely on Section 33.

The two year period runs from the date at which the aircraft arrived, or should have arrived, at its destination.

The period can be construed strictly.  The sole cause of action is the action under the Convention.  I have been involved in a case where the action was issued within the two year period but the claim form pleaded “negligence” and did not mention the convention or the Act, although it identified the parties and the accident date . The court held that a claim under the Convention or Act had not been brought within the two year period and the action was struck out.

THE WIDE APPLICATION OF THE ACT

The Act applies to accidents involved in embarking and disembarking so it can include accidents in the airport.

In the airport

  • There was a discussion of this in Adatia –v- Air Canada (CA  4th June 1992). There are many decisions on this in various jurisdictions.  The guiding test appears to be whether the passenger is under the control of the carrier.
  • In Dr Susan Phillips –v- Air New Zealand Ltd [2002] EWHC 800 (Comm) it was held that the Act did apply when the passenger was being transported to an embarkation gate after the flight had been called.

However the guiding principle has to be assume that the two year limitation period applies so as to avoid any reader of this blog inadvertently adding to the jurisprudence on the subject.

Balloons

 

  • An application to amend the name of the Defendant after the expiry of a limitation period was refused in Catherine Hall –v- Heart of England Balloons,  on the grounds that it would subvert the convention. (Judge Worster, Birmingham County Court,  17/11/2009, a judgment available on Lawtel).

No need for an “accident”

 

If there is no remedy under the Act a claim cannot be brought

 

 See the House of Lords decision in Sidhu –v- British Airways [1997] AC 430.

 

THE CRUCIAL POINT

 

The really crucial point is for litigators to be aware of the existence of the limitation period and the  Conventions that govern air travel. It is important that litigators  appreciate the scope  of these principles and the major impact they can have.  It is not unknown for insurers to correspond over time,  waiting for the two year period to lapse,  and then argue that the Convention applies – the action is extinguished. In these circumstances there is rarely anything that can be done.