CLAIMANT SOUGHT TO AMEND NAME OF THE DEFENDANT: CLAIM STRUCK OUT: ANOTHER PERIL OF TRAVEL LITIGATION

I am grateful to  barrister Katherine Howells for sending me a copy of the decision of Deputy District Judge Causton in Gregory -v- TUI Airways Ltd, a copy of that decision is available here  Approved Judgment Gregory v TUI.      The case is an object lesson  in the need to identify, precisely, the correct defendant prior to issue.  This is even more important, indeed crucial, where the Montreal Convention applies.  The judge rejected the claimant’s argument that an amendment to the claim form was valid and the action was struck out.

THE CASE

The claimant was injured when she was struck by objects  falling from an overhead locker in an aircraft flying from Egypt to Manchester.

PROCEEDINGS ISSUED AGAINST THE WRONG COMPANY

The claimant issued proceedings against TUI UK Limited.  However there are two associated companies.

“It is the case that TUI UK Limited are essentially a holiday company selling holidays, and TUI Airways Limited are the operator of the flight, and the two are distinct companies, although they share a registered office. Despite the fact that the claimant was informed – or their solicitors were informed – that TUI Airways Limited was the operator, nonetheless proceedings were issued against TUI UK Limited, the travel company, on 23 December 2020. It seems that an error was made in that respect.”

LIMITATION AND THE CLAIMANT’S APPLICATION TO AMEND

The action was subject to the two year limitation period in the Montreal Convention. The limitation period expired in the January 2021.  In April 2021 the defendant applied to strike out the claim form. This was on the grounds that after the two year period, the claimant had purported to amend the claim form to name the correct defendant.

THE STRIKING OUT OF THE CLAIM

The judge reviewed the case law in detail.   The judge held that the claimant had issued proceedings against the wrong legal person.  They had sympathy with the claimant.  However the provisions of the Convention were clear.   The claimant’s amendment was not valid and the action was struck out.

“All the authorities in this country, and abroad as well, on this interpretation of the Convention and the application of the limitation period, which is a substantive one, in the Montreal Convention, support the judgment I am making, which is that, unfortunately for the claimant, I am going to strike out the claim and, in my judgment, there is only a very, very limited pathway open to a claimant in this situation. I do not want to hypothesise as to what kind of cases the door might be open to the claimant in but, in my judgment, it does not apply in a case where the claimant has sued the wrong party and has not sued the carrier. It is more than just a simple typographical error; it is a different body.”