I am grateful to Katie Wheeler from Compass Costs  for sending me a copy of the judgment of District Judge Baldwin (Regional Costs Judge) in McKendry -v- British Airways PLC (hearing 16th May 2018 – judgment received today, available here McKendry). This is another decision that finds that an action brought under the Montreal Convention is not subject to the Portal and fixed costs regime.   This judgment comes to an identical conclusion to the decision the  Mead -v- British Airways Plc case reported earlier this week.



The claimant was injured whilst on an airplane in London. She received a heavy blow to the head as a result of a suitcase falling from an overhead locker above her seat.  The claim settled for £5,500. The preliminary issue for the judge to decide was whether the action was subject to the Pre-Action Protocol for Low Value Claims.



The judge rejected the defendant’s arguments. It was held that the Protocol did not apply to actions subject to the Convention.


“35. Whilst closely and carefully argued and not without a degree of ingenuity, Mr Davidson has failed to persuade me that an Article 17 Convention claim is or ought to be within the scope of the Protocol.
36. I agree with Mr Meehan that one can quite clearly see an element of public policy at work in terms of the creation of a notional duty of care in the Bedfordshire police case, with the result of ensuring that the Police Authority would be indemnified by their insurers and I reject any contention that such an approach should be adopted in the very different setting of an accident on board an aircraft for which liability is specifically provided pursuant to an article of an international Convention.
37. In my judgment the liability pursuant to Article 17 has not been shown to be reflective of or resultant from any notional duty of care but rather, as may be seen from the preamble to the Convention, as a result of international agreement as to the importance of consumer protection internationally in terms of air carriage and the codification of rules for the achieving of an equitable balance of interests.
38. In my judgment neither is the Article 17 liability reflective of damage which is necessarily tortious in character and is much more reminiscent of a sui generis liability of the type argued for by the Claimant. Indeed, it seems to me that there is some force in the proposition that there is no statutory duty at all, in the absence of a relevant UK statute, accepting that the Convention has the force of law but is not incorporated into law, but rather a right to damages pursuant to a Convention liability, as long as the claim is in scope, and for which no breach of any type, per se, needs to be asserted or found to exist.
39. In my judgment it is also noteworthy that the new Package Travel Protocol specifically excludes Athens and Montréal Convention claims (para. 1.1(13)(c)). This strongly suggests to me that such claims in general are appropriately excluded from the low value fixed costs regimes and that my interpretation of para. 1.1(18)(a) as not including a claim for damages pursuant to Article 17 of the Convention is in accordance with the most recent indicator of Parliamentary intention in the field of low value Protocols.
40. Further in this regard, it seems to me that para. 1.1(18)(a) could have omitted the words “arising out of a breach of a statutory or common law duty of care” in the same way as para. 1.1(14)(a), had such wider scope is that contended for by the Defendant been intended.
41.Accordingly, I reject the Defendant’s arguments on its first point and am not persuaded that that decision undermines any underlying further purpose, namely to include as many relevant low value injury claims as possible.
42. Similarly, I am entirely satisfied that there is no obvious error in drafting which is susceptible to any level of correction by this court.
43. As such, on this initial preliminary point, I am of the view that it was not open to the Claimant to utilise the public liability protocol and it therefore follows that she is entitled to seek assessment of her costs outside the confines of a directly applicable fixed costs regime.”