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From Singapore to Whitestone Chambers

Spending 2 weeks interning at Whitestone Chambers has been an immense blessing, and an invaluable learning experience.

Coming from Singapore, a jurisdiction that shares the common law tradition, I had a basic understanding of the legal system in the United Kingdom. My time in Whitestone Chambers has perfectly served to deepen my understanding and knowledge of the workings of the legal system here. Coming into this internship, one of my main objectives was to contrast and rationalise the legal system and culture in the UK with what I was familiar with in Singapore. I tried to be cognisant of this objective throughout my stint at Whitestone Chambers.

I particularly enjoyed visiting the numerous courts within and outside Central London. Undoubtedly, the judicial hierarchy and its jurisdiction is more complex in the UK. In order to attend the hearings of some cases it was necessary to take a train to the courts outside of London, a very foreign concept to a Singaporean.

The team at Whitestone Chambers assigned a variety of cases which ensured I had a wide breadth of experience in my short time here. From the Old Bailey, Kingston County Court to the Queen’s Bench Division at the Royal Courts of Justice, it was indeed exciting to see the law applied in action. To see young advocates in action in court was also particularly heartening. It was encouraging to see that the young advocates were given the trust and confidence to conduct cases on their own in court – something I do wish will happen more in Singapore.

Before every hearing, either Robert or Farrah would send me the case papers for me to read to understand the case better. Even before attending court, the Whitestone Chambers’ barristers still took the time to explain the case and their arguments to me. They were always enthusiastic to share and answer the questions that I had. I appreciated their frankness about the true prospects of the case that was placed before them to argue. After court they also took the effort to explain what the next steps were. It was very refreshing to hear their perspectives about their days as a student, doing the bar and their career at the bar.

While studying law, it is very easy to be drowned in textbooks and cases. This opportunity has allowed me to realise that the law is real and extends beyond understanding the ratio decidendi in Donoghue v Stevenson, or Carlill v Carbolic Smoke Ball Co. Practising law requires one to remain relevant by being ready to read and understand areas of law that are unfamiliar. I enjoyed summarising the flight delay cases were assigned to me, it felt real and relatable. I enjoyed meeting clients, unlike the neatly typed out hypotheticals in law school, clients come in with random splatters of emotions and problems, and it’s your job to sieve through it.

Perhaps the main explanation why I enjoyed my stint at Whitestone Chambers should be attributed to the fantastic team I was working with. They made me feel as if I belonged even before I started, and they were always ready to give me guidance along the way. It was a joy walking into the chambers in the morning and being greeted with a wide smile. Working in a dynamic environment where everyone is passionate in their work there was never a dull moment. When everyone came down for the Christmas party on the 13 December, it was evident how fun-loving this bunch of people are.

Regrettably, I only had 2 weeks with this set of chambers, I wish it could be longer. Nonetheless, I am grateful for the past 2 weeks. Within this time, I have forged friendships, deepened my understanding of the UK, and cemented my interest in litigation. Perhaps one day I will be back.

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It’s beginning to look a lot like Christmas

European Court of Justice rules on airport charges

On 7 November 2019, the European Court of Justice provided a preliminary ruling in Case C-379/18, between Deutsche Lufthansa AG and Berlin (Land of Berlin Germany), as to the interpretation of Directive 2009/12/EC in relation to airport charges [1].

Deutsche Lufthansa, in its capacity as an airport user, contested the approval of a new system of airport charges by Berliner Flughafen GmBH (BFG) for Berlin-Tegel Airport, which is managed by the Land of Berlin. The Land of Berlin as the independent supervisory authority had authorised a new system of airport charges with effect from 1 January 2015.

Accepting Lufthansa’s appeal, the referring court held that Lufthansa had standing to bring an action for annulment under German Law if the contested authorisation had an effect of giving rise to consequences under private law as the system of airport charges would directly affect Lufthansa in its capacity as a user. The following two questions were referred to the Fourth Chamber to provide a preliminary ruling:

(1) “Is a national provision which provides that the system of airport charges decided upon by the airport managing body must be submitted to the independent supervisory authority for approval, without prohibiting the airport managing body and the airport user from setting charges different from those approved by the supervisory authority, compatible with Directive [2009/12], in particular Article 3, Article 6(3) to (5) and Article 11(1) and (7) thereof?”

(2) “Is an interpretation of national law whereby an airport user is prevented from challenging the approval of the charging system by the independent supervisory authority, but can bring an action against the airport managing body and can plead in that action that the charges determined in the charging system are inequitable, compatible with the aforementioned directive?’”

With respect to the first question, the Fourth Chamber ruled that Directive 2009/12/EC precludes a national provision that permits an airport managing body from determining airport charges with an airport user that differ from those set by the independent supervisory authority. It ruled that Article 11(7) provides that the decisions of the independent supervisory authority should have a binding effect, without prejudice to parliamentary or judicial review. If the airport managing body and airport user were able to conclude independent contracts with each other that were separate from the independent supervisory authority, then its authority would be significantly reduced. Recital 2 of Directive 2009/12/EC required the establishment of a common framework regulating the essential feature of airport charges and the way in which they are set to promote the principles of consultation, transparency and non-discrimination of airport users, as laid down in Article 3, Article 6(1) and (2) and Article 7 of Directive 2009/12/EC.

Article 6(1) of Directive 2009/12/EC requires member states to make provisions for consultations between the airport users and the airport managing body as to the airport charges, whilst Article 6(2) of the Directive encourages member states to use a consensual approach while amending the system or level of airport charges, together with discussions as to the reasons for the proposed changes.

With reference to the second question, the court ruled that the interpretation of national law that an airport user can not challenge the decision of the independent supervisory authority that approves that charging system, but is able to bring an action against the airport managing body on the basis that the charges that the user must pay are inequitable, is precluded.

[1]http://curia.europa.eu/juris/document/document.jsf;jsessionid=C83087CC12982726F6AAD6ACE80D3477?text=&docid=220810&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=5338012

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Ryanair carry-on baggage charge is struck down as ‘abusive’ by Spanish Court

A passenger charged €20 by Ryanair to bring an item of carry-on luggage onto the aircraft, the dimensions of which were in excess of that outlined in the company’s general terms and conditions, has been refunded the charge plus interest following the judgment of a Spanish mercantile court.

Ryanair had pleaded that the passenger’s carry-on luggage exceeded the limits set out in section 8.3.1 of their General Terms and Conditions of Carriage:

8.3.1. You may carry one piece of carry-on baggage on the plane, which must be no larger than 40cm x 20cm x 25cm. [1]

The policy which came into effect on 1 November 2018 means that any baggage in excess of the above dimensions requires the passenger to pay a €14 supplement to upgrade to “Priority”. The passenger’s baggage was in excess of these dimensions and they had not paid the supplement, and consequently was charged €20 to take their carry-on luggage onboard the aircraft.

The judge characterised the charge as “abusive, adding that it “curtailed the rights that the passenger has recognised by law”, and declared it invalid in Spain.” [2] The ruling of the court resulted in the budget airline being ordered to return the €20 plus interest to the passenger, however, the passenger’s claim of €10 as damages was denied, as the judge ruled that no damages had been caused to the passenger.

This ruling follows the Italian antitrust authority fining Ryanair €3m and Wizzair €1m in February of this year in relation to their cabin baggage policies which were seen as amounting to increasing the price of tickets, but doing so in a non-transparent manner. [2]

In a statement on Wednesday, Ryanair said: “This ruling will not affect Ryanair’s baggage policy, either in the past or in the future, as it is an isolated case that misinterpreted our commercial freedom to determine the size of our cabin baggage.”

[1] https://www.ryanair.com/gb/en/useful-info/help-centre/terms-and-conditions/termsandconditionsar_696869348

[2] https://www.rte.ie/news/business/2019/1120/1094121-ryanair-hand-luggage-fee/

[3] https://uk.reuters.com/article/us-italy-ryanair-court/italy-court-suspends-fines-to-ryanair-wizz-air-over-hand-luggage-policies-idUKKCN1R91XI

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Virgin Galactic becomes the world’s first publicly traded space tourism venture

Virgin Galactic has recently become the world’s first publicly traded space tourism venture. It is a vertically integrated aerospace company within the Virgin Group, pioneering human spaceflight for private individuals and researchers.

Virgin Galactic (‘Galactic’) merged with venture capital firm, Social Capital Hedosophia in early October, prior to which Galactic had lost $138 million in the first nine months of that year. It had spent $100 million on research and development for testing rocket-powered space planes ahead of its first commercial flight scheduled for 2020.

The resulting company formed through the merger was named Virgin Galactic Holdings, Inc. (“VGH”) and its common stock, units and warrants began trading under the ticker “SPCE” on 28 October 2019. Merging and trading as a public company are milestones on the path towards building a thriving commercial service business, with the projected worth of this public listing being $2.7 trillion by 2045 according to Merrill Lynch.[1] The deal has given the company a cash influx of $430 million which will ensure that there is sufficient funding while it finishes testing of its vehicle, SpaceShipTwo, which has been under development for more than a decade.[2]

The company plans to send paying customers in groups of 6 on scenic flights to space where they will experience weightlessness for a few minutes. The customers will also experience intense G-forces as the plane makes its way to more than 50 miles above Earth. 600 people already have tickets and have agreed to pay between $200,000 and $250,000 for their trips representing approximately $80 million in total collected deposits and over $120 million of potential revenues. The company is currently not taking any new customers, but its new financial filing has revealed that more than 3500 people have expressed an interest in purchasing tickets.[3]

One potential line of business for Galactic is in using space plane to conduct ultra-fast flights between cities. Sam Korus, an analyst at ARK invest, said that his research indicates that as many as 2.7 million people might be willing to pay up to $100,000 for a long-distance hypersonic flight to reduce their current travel time. According to his research, the market could scale to $270 billion in revenues annually.

Boeing has invested $20 million for a 1% stake in the company to aid the development of hypersonic transit. The companies will work together to broaden commercial space access and transform global travel technologies. The investment brings together two companies with extensive experience in the space industry. Virgin Galactic brings with it the ability to design, build, test, and operate a fleet of advanced aerospace vehicles; Boeing has unparalleled experience transporting people to orbit and building and operating large structures within that environment.[4]

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[1] https://www.washingtonpost.com/business/2019/10/28/virgin-galactic-takes-space-tourism-public-with-historic-nyse-listing/

[2] https://edition.cnn.com/2019/11/13/tech/virgin-galactic-earnings/index.html

[3] https://www.virgingalactic.com/articles/virgin-galactic-completes-merger-with-social-capital-hedosophia-creating-the-worlds-first-and-only-publicly-traded-commercial-human-spaceflight-company/

[4] https://www.virgingalactic.com/articles/boeing-to-invest-in-human-spaceflight-pioneer-virgin-galactic/

Panorama investigation looks at the practice of fuel tankering

A BBC Panorama investigation into fuel tankering, the practice of filling aircraft with extra fuel to avoid having to refuel at destinations that have a higher fuel charge, has claimed that they have seen documents which show that up to six tonnes of extra fuel can be loaded onto a plane per flight. BA confirmed that it emitted 18000 tonnes of additional carbon dioxide in the atmosphere, last year, by indulging in this cost saving practice.

According to Panorama, a recent BA flight to Italy took three extra tonnes of fuel leading to an added 600 kg of carbon dioxide emission whilst only saving £40 in costs.

BA told the BBC that fuel tankering is standard practice within the industry to carry additional fuel due to operational, safety and price reasons. The industry-wide practice could mean extra annual emissions equivalent to a large European city.[1] Whilst admitting that they sometimes indulge in fuel tankering to save money – such as when flying to Glasgow where fuel prices are 25% more expensive than Heathrow, they reasoned that fuel tankering was sometimes important for operational reasons and to save time. BBC Panorama states that for BA, fuel tankering applies largely to only short haul destinations where there are considerable fuel price differences between European airports.

The U.K. is currently a part of the EU Emissions Trading Scheme (EU ETS).[2] The EU ETS is a form of carbon pricing known as a ‘cap and trade scheme’ in which a limit on emissions is set and divided up into allowances, each equal to one tonne of CO2. Each year businesses must surrender sufficient allowances to match their emissions, with large fines imposed on those who do not. BA has committed to reducing carbon emissions by investing in new technologies and sustainable bio-jet fuels[3]. John Sauven, Greenpeace UK’s executive director has suggested the need for government-enforced reduction targets to ensure airlines take responsibility for the damage their emissions are causing. Eurocontrol, the body that coordinates air traffic control for Europe, has estimated that tankering in Europe produces an additional of 901,000 tonnes of CO2. BA have stated that they will carry out a review of its fuel tankering practices and CO2 emissions and has also ensured to offset all CO2 emissions from its UK domestic flights in accordance with the EU ETS by 2020.

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[1] https://www.bbc.co.uk/news/science-environment-50365362

[2] https://spice-spotlight.scot/2019/04/05/the-eu-emissions-trading-scheme-and-brexit/

[3] https://www.britishairways.com/cms/global/microsites/ba_reports0809/pdfs/Environment.pdf

Bombardier to sell its Aerostructure Unit to Spirit AeroSystems in $700 Million Deal

Bombardier, a leading manufacturer of planes and trains has reached into a definitive agreement to sell select assets to Spirit AeroSystems, one of the world’s largest tier-one manufacturers and suppliers of aerostructures. It is also acquiring aftermarket service businesses in Belfast, U.K.; Casablanca, Morocco; and its aerostructure maintenance, repair and overhaul (MRO) facility in Dallas, U.S.A. The deal involves assumption of liabilities, including pension obligations. The assets and after-market service business are being acquired for a cash consideration of $500 Million. Additionally, Spirit Aerosystems is assuming approximately $300 Million in net pension liabilities and approximately $290 Million of government grant repayment obligations, for a total enterprise valuation of $1090 Million, which is equals to 10 times the 2019 estimated adjusted EBITDA of the acquired business. The transaction is expected to close in the first half of 2020 and is subject to regulatory approvals and customary closing conditions.[1]

Spirit AeroSystems claims that the acquisition is in line with Spirit’s growth strategy of increasing Airbus content, developing low cost country footprint and growing their aftermarket business. The Bombardier operations will bring synergies by bringing engineering expertise and add to a robust track record of innovation. The Deal would be strategic for Spirit as the acquired business would bring a world-class aftermarket business which more than doubles Spirit’s geographic reach globally.

The move also benefits Bombardier in the sense that the move is part of Bombardier’s plan to shed its commercial aviation business and focus on its higher-margin business jets and rail division. The Belfast factory will continue to remain a major supplier to Bombardier’s business jet programmes.

A Spokesperson for Bombardier said that there would be no workforce adjustments and Bombardier’s employees will be transferred to Spirit including those at smaller operations in US and Morocco.[2] The Unite union is of the opinion that the acquisition has a hope for a positive future for Bombardier workers in Northern Ireland as Bombardier was once on the brink of insolvency and a new owner for the Belfast operations should bring some stability for the workforce and a long-term focus on the business. The GMB union said that it would be seeking talks with Spirit’s management ‘to get assurances on jobs, terms and condition and pensions.’[3]

The transaction is subject to regulatory approvals and customary closing conditions. Spirit’s press release cautioned that the expected profits and revenues are only forward-looking statements and could be susceptible to uncertainty and changes in circumstance.

[1]https://www.spiritaero.com/release/137050/spirit-aerosystems-to-acquire-select-assets-of-bombardier-aerostructures-and-aftermarket-services-business

[2]https://www.theguardian.com/business/2019/oct/31/bombardiers-belfast-factory-sold-to-spirit-in-850m-deal

[3]https://www.bbc.co.uk/news/uk-northern-ireland-50246299

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The dawn of the electrical vertical take-off and landing aircraft

The dawn of the “flying taxi” will soon be upon us through the development and manufacture of the electrical vertical take-off and landing (‘eVTOL’) aircraft. The aircraft as envisaged will carry passengers from specially designed Skyports, enabling the use of eVTOL aircraft in built up areas. The Skyports are designed and built through the collaboration of specialists in architecture, design and engineering to produce landing and take-off sites capable of handling up to 1000 landings per hour in a small space; collaboration between Volocopter and Skyports has resulted in the creation of the world’s first full scale air taxi vertiport, which opened in Singapore on 21 October 2019.

Uber is one of the main competitors in the eVTOL industry, and it plans to “give riders the option of an affordable shared flight”. These aircraft would be autonomously controlled and would pick passengers up and drop them off in a similar way as to how the Uber Pool facility works.

The eVTOL aircraft must comply with the regulatory regimes in each country in which they operate. Singapore and China are places in which the Skyports co-founder and managing director Duncan Walker suggests the aircraft will launch faster, and that in other areas better progress must be made to promote the benefits of these aircraft to governments.

In relation to the regulation of these aircraft in Europe, on 2 July 2019, the European Aviation Safety Agency released its final “Special Condition”, which contains the framework for the Basic and Enhanced certification (aircraft capabilities after a critical malfunction of thrust/lift) for the small aircraft category which “covers aircraft with a passenger seating configuration of 9 or less and a maximum certified take-off mass up to 3175kg” [1].

However, there are currently problems limiting the benefits of this technology. The battery life of these aircraft limit them to short flights as the aircraft achieve a range of about 22 miles, with a maximum speed of 68mph, although prototypes are being designed that may achieve a range of 185 miles. As a result of this, short flights will be the current focus of these companies as there are many potential customers in cities such as London who would use the aircraft to travel to local airports and other destinations.

As these aircraft are developed and are programmed to be fully autonomous, the threat of cyberattacks will loom large, as the effect of an inflight disruption could prove disastrous. Companies using this technology must therefore have detailed plans in case of the event of a cyberattack, as well as a consideration as to whether cyberinsurance will develop to encompass such an event.

[1]https://www.easa.europa.eu/document-library/product-certification-consultations/special-condition-vtol#group-easa-downloads

Beware Cookie Law

Websites that use cookies to track users and their interactions will have to pay close attention to the recent case of Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV (the ‘Federation’) v Planet49 GmbH (‘Planet49’) Case C‑673/17, 1 October 2019, which clarifies the indication the user must provide as to their consent to the use of cookies.

Planet49 organised a promotional lottery accessed via a website. If users wished to take part in this competition, users were required to enter personal details such as their name and postcode on the website. The user was also presented with two boxes to check. The first box one was unchecked and required the user to check it to enter the competition, this would also allow certain sponsors and corporate partners to contact the user. The second box was pre-checked and if this approval were not removed it would allow multichannel retargeting company Remintrex to evaluate the user’s use and behaviour through the use of cookies.

With reference to EU Directives 95/46 and 2002/58, the court was asked to provide a preliminary ruling as to whether “the consent referred to in those provisions is validly constituted if, in the form of cookies, the storage of information or access to information already stored in a website user’s terminal equipment is permitted by way of a pre-checked checkbox which the user must deselect to refuse his or her consent”. Additionally, the court was asked to consider EU Regulation 2016/679, (the ‘GDPR’), on a ratione temporis basis, as the German Court previously stated that it may be applicable to the main proceedings.

Recital 17 of Directive 2002/58, provides examples of a user’s consent being validly given, for example, ‘by ticking a box when visiting an internet website’. EU Directive 95/46 Article 2(h) then specifies the user’s consent as ‘any freely given specific and informed indication of his wishes, and as per Article 7, the consent must be given unambiguously.’ In this instance the court determined that “only active behaviour on the part of the data subject with a view to giving his or her consent may fulfil that requirement.” After the entering into force of the GDPR, the data subject’s consent has been defined further in Article 6(1)(a) as requiring a ‘freely given, specific, informed and unambiguous” indication of the subject’s consent, and Recital 32 precludes “silence, pre-ticked boxes or inactivity” from constituting consent.

As a result of the court’s ruling, a website using a pre-checked box to act as consent to the use of cookies on the user’s terminal before 25 May 2018 would be in breach of EU Directive 95/46; as of 25 May 2018, Directive 95/46 has been repealed and replaced by the GDPR meaning that any breach after this date would be a breach of the GDPR rather than the Directive.

Interestingly, what the court was not asked to give an opinion on was whether the user’s consent was ‘freely given’ as set out by Article 2(h) of EU Directive 95/46, and Articles 4(11) and 6(1)(a) of the GDPR. The very important question still remains as to whether consent is freely given if the user must allow the use of cookies to enter the competition, or in a wider context, to enter a website.

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Flybe to be rebranded as Virgin Connect

After 40 years as the largest independent regional airline in Europe, Flybe has been acquired by the Connect Airways consortium. The Connect Airways consortium was created in December 2018 and consists of 40% ownership by Cyprus Capital, 30% by the Stobart Group, and 30% by Virgin Atlantic Limited.

The proposed merger of the consortium received approval from the European Commission on 5 July 2019 [1] on condition that full compliance is met by Connect Airways as to the commitments [2] that it offered, to ensure that it complies fully with competition law. Following the merger in July 2019, Flybe was acquired by Connect Airways and in the near future, the Flybe name will be changed to ‘Virgin Connect’. Switching from the current purple colour schemes, Flybe’s fleet of 76 aircrafts will be rebranded to match the distinctive red of the Virgin Group companies.

Based in Exeter, and with hubs at Birmingham and Manchester airport, Flybe currently carries 8 million passengers per year between 81 airports throughout the UK and the rest of Europe. Flybe has over 210 routes across 15 countries, and a number of codeshares permitting connections to long-haul flights from several airports including London Heathrow, Paris CDG and Amsterdam. These capabilities will be used by Virgin Connect to build upon the existing Virgin brand, and to offer a wider range of services.

The CEO of the newly branded Virgin Connect, Mark Anderson said: “We are hugely excited by this milestone in our airline’s 40-year history. We will remain true to our heritage and reason for being, which is offering essential regional connectivity to local communities. “At its heart, Virgin Connect will be passionately focused on becoming Europe’s most loved and successful regional airline. It will offer travel that is simple and convenient with the personal touch. Our customers will naturally expect the same exceptional travel experience as they do with other Virgin-related brands. Whatever their reason for flying, we want our customers to feel loved and know we will always put their needs first in every decision we take.

Customers are advised that their bookings will not be affected and that they may continue to visit www.flybe.com to book flights, check in and manage their booking. For those passengers concerned about Brexit, they can have their fears alleviated. In place is EU Regulation 2019/502 that provides for common rules ensuring basic air connectivity with regards to Brexit, allowing Virgin Connect to fly to European destinations until 24 October 2020.

[1] https://ec.europa.eu/commission/presscorner/detail/en/IP_19_3790

[2]https://ec.europa.eu/competition/mergers/cases/additional_data/m9287_881_5.pdf

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