August 2019 – Whitestone Chambers

An Airbus 321 travelling from Russia to Crimea has crash-landed in a field as a result of damage caused by a flock of birds that were sucked into the plane’s engines. Although there were no deaths caused by the impact, some passengers experienced injuries, and all suffered significant delays. As a result of this the passengers may be able to make a claim under the Montreal Convention 1999 (the ‘Convention’) for a non-EU flight.

Article 19 of the Convention states that “the carrier is liable for damage occasioned in the carriage by air of passengers, baggage or cargo” however, the carrier will not be liable if “it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.”

A bird strike is considered an extraordinary circumstance in EU law in relation to EU 261/2004 as per Marcela Pešková, Jirí Peška -v- Travel Service A.S. (C-315/15). Considering this judgment it would be unlikely that a view would be taken that the damage caused by a bird strike could be avoided or any further precautionary measures could be taken. As such, the passengers are unlikely to be able to recover for their delay.

Those injured may make a claim for compensation. Article 17 s(1) of the Convention states that “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”. Any passengers who were onboard the aircraft at the time of the accident would therefore meet this requirement. Once a claim under this Article has been established Article 21 is considered.

Under Article 21 s(1) of the Convention, for damages arising under Article 17, the carrier may limit its liability to 100,000 Special Drawing Rights provided there was no negligence, wrongful act or omission of the carrier or its servants or agents; or if the damage was solely due to the negligence or other wrongful act or omission of a third party. At the time of publication of this article this would limit a carrier’s liability to around £113,000 per person in this event.

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The Supreme Court has ruled in the case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] that all courts and tribunals that exercise the judicial power of the state are subject to the ‘open justice’ principle.

The principles of open justice are that the public can understand and scrutinise the court, thereby enabling the public to understand the issues and evidence that is provided by parties.

Civil proceedings have moved from being dominated by oral evidence to proceedings that generate a great deal of written evidence. As this movement has continued, questions have arisen as to how much of the written material placed before the court in a civil action should be accessible to those who are not parties to the proceedings and how this material should be made accessible to them. As most of the evidence is now reduced to writing and is not read out in court it is almost impossible to know what happens in court without access to the written material which, therefore, hinders open justice.

Lady Hale, delivering the Supreme Court’s judgment, said of access to court documents that “the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents. They are a minimum…”

As per R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, the default position as to court documents is that “the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing.”

The court has the power to grant access to these documents, however the applicant does not have an automatic right to be granted access to them. The applicant must put forward a cogent case as to how access will advance the open justice principle following which the court will balance against the possible harm caused by disclosure, such as the release of confidential information.

Also to be considered are the proportional and practical aspects of granting a request. It is advisable that the application for the written material is to be submitted during the trial as the documents would be readily available at this point. After the trial has concluded the likelihood of a successful application diminishes with time as identifying and retrieving the documents becomes practically difficult as the court and parties may not have retained them and, as such, the effort required to reproduce them may not be proportional to the principle of open justice.

Increasing the scope of access beyond the default position in relation to court documents is therefore “the inherent jurisdiction in support of the open justice principle, not the Civil Procedure Rules, CPR rule 5.4C(2).” The aforementioned CPR subsection states that:

“A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.”

With reference to CPR 5.4C(2), “records of the court” is outlined in the judgment delivered by Lady Hale as meaning “documents and records which the court itself keeps for its own purposes” and is, therefore, distinct from the purposes for which non-parties may be given access to court documents.

Judgment may be viewed at: https://www.bailii.org/uk/cases/UKSC/2019/38.html

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Month: August 2019

Plane damaged by bird strike may result in compensation to passengers

Supreme Court rules that all courts and tribunals are subject to the open justice principle