A MONTREAL CONVENTION CLAIM DOES NOT FALL WITHIN THE PORTAL: FIXED COSTS DO NOT APPLY
I am grateful to Peter Bland from Scott Rees, solicitors, for sending me a copy of the decision in Mead -v- British Airways Plc*. Mead v BA template – Final 15 August 2018 (1)This considers the issue of whether a claim brought under the Montreal Convention falls within the Portal and fixed costs provisions. The District Judge decided that it did not and that costs should be assessed.
The claimant was injured on board a flight at Gatwick airport. Air cabin were moving the claimant’s sons wheelchair in such as way as to cause the claimant to fall and suffer injury. A letter of claim was written and liability was not disputed.
ACCEPTANCE OF A PART 36 OFFER
The letter of claim specifically mentioned that the claim was brought under the Montreal Convention. The defendant made a Part 36 offer which specifically made reference to fixed costs under CPR Part 45.18.
THE CLAIMANT’S APPLICATION FOR COSTS
The claimant issued a Part 8 application for costs to be assessed. The bill was assessed on paper.
THE PRELIMINARY OBJECTION
The defendant’s preliminary objection was that the case was subject to the Portal and fixed costs applied. The judge did not agree with the defendant and the costs were assessed.
THE LENGTH OF THE SUBMISSIONS…
As an aside it is worthwhile looking at an observation made by DJ Moss.
“The defendant’s preliminary submission on the MOJ Portal Costs issue runs to over 7 pages of the points of dispute. The claimant’s reply runs to over 2 pages. Judge Richmond in his decision noted on the Precedent G expressed concern over the length of the points of dispute and replies. He observed that the objection was neither short nor concise as required by the rules. He accepted the claimant’s position and the point of dispute was dismissed.”
THE DEFENDANT’S REQUEST FOR AN ORAL HEARING
The defendant requested an oral hearing on the issue of whether the matter fell within the Portal. This was heard by DJ Moss.
THE DISTRICT JUDGE’S CONCLUSION: THIS WAS NOT A PORTAL CASE
27. Mr Smith for the claimant submits that a Convention claim is not properly described as arising out of a breach of statutory or common law duty of care. It is therefore not a public liability claim within the Protocol definition. Article 17 imposes a strict liability if the elements are made out, being an accident occurring on board an aircraft (or during embarking or disembarking) causing death or bodily injury.
28. The effect of Article 29 is that any action for damages, however founded, whether under the Convention or in contract or tort or otherwise, can only be brought subject to the conditions of the Convention. Where, as here, a claim exists under the Convention there is no common law claim. The passenger’s right to claim exists solely within the Convention. The Convention, not the common law, sets out the limits of the regime within which the claim is made and the carrier’s liability is governed.
29. Provided that the conditions of Article 17 are met (and subject to Article 21) liability is imposed on the carrier regardless of fault. It is a right to recover damages in specified circumstances that does not depend on establishing breach of duty. However the right is a limited one. Only certain types of injury are compensable. There is a limit to the amount recoverable. Claims are subject to the exclusivity provision in Article 29. The Convention is, as the points of dispute recognise, a self-contained legal code. The law of negligence has a role only in claims of higher value under Article 21. It is the Convention that governed the liability of carrier to passenger in the circumstances of this claim.
30. As Mr Smith succinctly argued, it is not therefore a claim for (or arising out of) a breach of statutory duty. There is no statutory duty imposed on the carrier. It is a strict liability. The route of incorporation of the Convention into English law does not give the claim the character of a breach of statutory duty for the purposes of the Protocol.
31. It is in my judgment immaterial that but for the Convention the circumstances would have given rise to a common law or other breach of duty. I accept Mr Smith’s submission that the points of dispute are misconceived to the extent that they contend that the Convention creates a statutory or other duty of care. The duty or breach of duty play no part in claims within Article 17.
32. The language of “act or omission” in Articles 20 and 41 does not assist in bringing a Convention claim within the Protocol On the other hand there is support for my conclusion in the definition of “admission of liability” in the Protocol. Firstly the issue of breach of duty does not arise and secondly the 1980 Limitation Act does not apply. The Protocol does not therefore accord with the provisions that apply to Convention claims.
33. It follows that I dismiss the challenge to the provisional assessment.