CLAIMANT’S CONVENTION CLAIM DISMISSED FOLLOWING ATTEMPT TO AMEND AFTER THE EXPIRY OF THE LIMITATION PERIOD
I am grateful to Barrister Katherine Howells for sending me a copy of the judgment in Hallett -v- TUI Airways Limited, a copy of which is available here Approved Judgment Hallett v TUI Airways Limited. The case deals with the issue of amending the name of a defendant after issue in a case covered by the Montreal Convention. It is another reminder of the distinction between Convention claims and common law claims. It is a further reminder of the need to get the correct name of the defendant from the outset.
“This is a case where there is no scope in my judgment for the Court to do anything other than strike out the claim as disclosing no reasonable cause of action against the defendant because the provisions of the Montreal Convention make clear that when these proceedings were amended so that the correct defendant was included the limitation period in the Montreal Convention had expired. There was no legal cause of action at that stage that the claimant had against the defendant. It follows, therefore, in my judgment that the claim should be struck out pursuant to Civil Procedure Rule 3.4(2)(a).”
THE CASE
The claimant brought a claim for damages for personal injury stating that she was injured in a flight from Cyprus to London when an object fell from an overhead locker in the plane.
THE PROCEEDINGS
The proceeding were governed by the Montreal Convention. The claimant issued within the two year limitation period. However proceedings were issued against TUI UK Limited which is a travel agent.
AMENDMENT OF THE PROCEEDINGS PRIOR TO ISSUE
The claimant, prior to issue, but after the expiry of the limitation period, amended the name of the Defendant, without permission under CPR 17. (1). Proceedings were then served.
THE DEFENDANT’S APPLICATION TO STRIKE OUT
The defendant applied to strike out the amendment and to strike out the action as showing no reasonable cause of action.
LIABILITY RESTS ON THE CONVENTION
The first observation the judge made was that the claimant’s cause of action rested wholly on the convention.
“Liability in respect of injuries sustained by passengers on board aircraft during flights is not governed by ordinary principles of tortious or contractual liability but by international conventions ratified by countries and incorporated in national law by statute.”
THE JUDGMENT STRIKING OUT THE ACTION
In the course of argument, I was referred to a very great number of authorities and in particular
the judgement of HHJ Worster in the case of Hall v Heart of England Balloons Ltd and
Another [2010] 1 Lloyd’s Rep. 373, which provided a helpful analysis for the Court of the
effect of the Montreal Convention. It provides for the sole and exclusive cause of action in
relation to liability of an air carrier in respect of passenger claims and particularly Article
17(1) provides:
“The carrier is liable for damage sustained in case of death or bodily
injury of a passenger upon condition only that the accident which
caused the death or injury took place on board the aircraft or in the
course of any of the operations of embarking or disembarking”.
9. It is common ground that that is in play in this case. In addition, then Article 35:
“The right to damages shall be extinguished if an action is not brought
within a period of two years, reckoned from the date of arrival at the
destination, or from the date on which the aircraft ought to have arrived,
or from the date on which the carriage stopped”.
10. In this case it is common ground that proceedings were issued against the incorrect defendant
prior to the expiry of the two-year limitation period. It is also common ground that the
proceedings were not amended to include the correct defendant until after the expiry of that
limitation period. The scheme is one of strict liability. It is clear from the authorities that I
was referred to that it is a key feature of the Montreal Convention that it provides a substantive
prescription period, in other words the expiry of the 2 year period serves to extinguish the
claim and provide the defendant with a substantive defence.
11. It does not, unlike the Limitation Act 1980, act as a mere procedural bar to the remedy whilst
leaving the claim in existence. The claim itself ceases to exist in law and cannot be
resuscitated by reliance on the CPR or any other domestic law. In relation to that see the
judgment of Dyson LJ, paragraph 69 to 70 in Laroche v Spirit of Adventure (UK) Ltd [2009]
QB 778 at 794H-795A. He said:
“The judge was in my view right to hold at [48] to [51] that article 29(2)
does not permit the 2 year period to be suspended, interrupted or
extended by reference to domestic law. The only thing that it leaves for
determination by the court seised of the case is the calculation of the
precise dates of the beginning and end of the relevant two year period
and the determination of whether the action has been brought within
that two year period”.
12. While the claimant accepts that they issued the proceedings against the wrong defendant,
what they say is that they were permitted by the CPR to substitute the correct Defendant. The
relevant parts of CPR 17 provide as follows:
“17.1 (1) A party may amend his statement of case at any time before it
has been served on any other party.
17.2 (1) If a party has amended his statement of case where permission
of the court was not required, the court may disallow the amendment.
(2) A party may apply to the court for an order under paragraph (1)
within 14 days of service of a copy of the amended statement of case
on him”.
13. The claimant say that the Defendant did not make an application under CPR 17.2(2); that they
should have done so; that they have brought the wrong application; that is not open to the
Defendant to apply to strike out the claim pursuant to CPR 3.4 and that once the proceedings
were served, they were served on the correct defendant and had been issued against the correct
defendant pursuant to the amendment made on 9 February 2022.
14. Having considered the authorities, I accept and adopt the analysis by HHJ Worster in the case
of Hall v Heart of England Balloons Ltd and Another. It is clear to me that the Montreal
Convention is indeed a self-contained code. There is no room for the application of any
domestic law rules or principles. What Miss Prager says is that, notwithstanding that, the
proceedings when issued were not against the correct defendant CPR 17 permits a claimant
to amend their claim, and that is what they did. Therefore, when the proceedings were served
there was a claim in existence against TUI Airways Limited.
15. To accept Ms Prager’s argument would mean that the domestic CPR are in some way allowed
to override the provisions of the Montreal Convention.
16. In my judgment, all the authorities referred to all came to the same conclusion in relation to
the application of the Convention and the inability of domestic rules of procedure to seek to
take precedence over the provisions of the Convention. A number of those authorities were
not binding upon me; decisions of Circuit Court judges and/or district or deputy district
judges. However, I consider that the defendants’ analysis is the correct one. In particular an
example of a provision of domestic law that in my judgment cannot be used to flout the
two-year prescription period in the Montreal Convention is the doctrine of relation back.
17. To allow such a provision, in other words, the fiction that an amendment dates back to the
date of issue is, in my judgment, clearly contrary to the substantive nature of the prescriptive
period in Article 35 of the Montreal Convention. I note the doctrine of relation back was
confirmed as having no application in relation to the one-year limit in the Hague Rules in the
case of Payabi -v- Armstel Shipping Corporation [1992] QB 907. It is also consistent with
the need for certainty that is provided for by the Convention and referenced in a number of
cases that have considered the detail of the Convention that there is no room for flexibilities
that might otherwise be afforded by relevant domestic law regimes.
18. This is a case where there is no scope in my judgment for the Court to do anything other than
strike out the claim as disclosing no reasonable cause of action against the defendant because
the provisions of the Montreal Convention make clear that when these proceedings were
amended so that the correct defendant was included the limitation period in the Montreal
Convention had expired. There was no legal cause of action at that stage that the claimant
had against the defendant. It follows, therefore, in my judgment that the claim should be
struck out pursuant to Civil Procedure Rule 3.4(2)(a).