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Plane damaged by bird strike may result in compensation to passengers

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

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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British Airways data breach results in a potential fine of £183m.

British Airways (‘BA’) are facing a historic fine of £183m following a major data breach reported by the Information Commissioner’s Office (‘ICO’) on 6^th September 2018 in which hackers successfully stole customers’ personal data consisting of passenger login details, card details, addresses and travel booking information. The ICO had previously reported that the personal data of around 500,000 passengers was stolen from BA’s website and the mobile app in a different data breach which purportedly started in June 2018.

Following the entry into force of the General Data Protection Regulation (‘GDPR’) on 25^th May 2018, this is the first penalty for a personal data breach that has been made public and it demonstrates the serious nature of the approach undertaken by the ICO when personal data is not treated with the upmost care.

Although this constitutes a significant fine for BA, the ICO has the power to penalise a company for a serious data breach for the higher of either up to 4% or €20m of annual turnover, which could have resulted in a fine of around £460m.

To put the impact of the GDPR into context, some insight is provided by comparing this penalty to the one faced by Cambridge Analytica. Cambridge Analytica was fined £500,000 for a personal data breach that affected around 87 million users; the BA breach affected around 0.6% of the number of people affected by the Cambridge Analytica breach. However, at the time the fine facing Cambridge Analytica was governed by the Data Protection Act 1998, which set the maximum fine for a data breach at £500,000.

Elizabeth Denham, the Information Commissioner, said in relation to the BA data breach that “people’s personal data is just that – personal. When an organisation fails to protect it from loss, damage or theft it is more than an inconvenience. The law is clear, when you are entrusted with personal data you must look after it. Those that don’t will face scrutiny from my office to check they have taken appropriate steps to protect fundamental privacy rights.”

Following the issue of the notice, Willie Walsh, Chief Executive of IAG, stated that British Airways would be making representations to the ICO and that “we intend to take all appropriate steps to defend the airline’s position vigorously, including making any necessary appeals”.

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Heathrow’s third runway mass expansion

The potential knock-on effect for the rest of the UK’s airports if the plan for a 3rd runway at Heathrow gets the green light have been revealed and it does not look promising.

If Britain wants to meet its climate targets, then no further airport expansions will be possible until 2050. Given that carbon-neutral plane engines are still some way away from becoming the norm, further expansions seem impossible.

The Head of the committee on climate change, Lord Deben told Sky News “If Heathrow is built it has to be built within the envelope of emissions which we have allowed for aviation. It has knock-on effects. It means you can’t build similar things elsewhere in the country… It is for the government to decide what we as a nation put our priorities in. But it has to realise that it can’t move outside those parameters.”

In opposition to this view, Karen Dee, Chief Executive from the Airport Operators Association, also told Sky News that she was confident that as long as the industry kept pushing new technology to improve plane efficiency then she didn’t believe the aviation limits would prevent expansion of activity for other UK airports.

As well as the estimated 800 homes that will need to be destroyed to allow the new runway, it seems that the effect of the proposals will extend much further than the immediate vicinity and potentially impact upon the whole of the United Kingdom and the expansions plans of any airports therein.

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North Face – Red Faced Apology Over Wikipedia ‘Hack’

North Face has apologised for manipulating Wikipedia to boost its Google search results.

The well-known US clothing brand, which emerged from humble beginnings as a retailer of specialist climbing gear, came under sharp criticism when its new ad campaign video explaining what it had done, was shared online by Advertising Age.

In the campaign video, North face proudly announced how they had “hacked” the search rankings using Wikipedia pages and it cost “nothing”. Further boasting how they cleverly noticed; “before going on a trip, everyone does a google search” and “most of the time, the first image is from Wikipedia”, so they “did what no one has done before”.

They photographed models wearing their brand in more than 15 adventurous places, including Brazil’s Guarita State Park, as well as California’s Cabo peninsula and Scotland’s Cuillin mountains. Then in April, with hired help from a Brazilian subsidiary ad agency Leo Burnett Tailor Made, they simply switched the Wikipedia location images for their own branded images. “simple as that” according to the video..

The self-praising video was not well received and experienced a social media backlash whilst The Wikimedia Foundation, which set up and oversees the online encyclopaedia, called the campaign ‘unethically’ manipulating, adding, “what they did was akin to defacing public property,… commercial promotion goes directly against the policies, purpose and mission of Wikipedia to provide neutral, fact-based knowledge to the world.”

North Face was left red faced and duly issued the following apology via Twitter:

“We believe deeply in Wikipedia’s mission and apologise for engaging in activity inconsistent with those principles,”

But North Face didn’t stop there, announcing:

“Effective immediately, we have ended the campaign and moving forward, we’ll commit to ensuring that our teams and vendors are better trained on site policies.”

Leo Taylor Burnett were also suitably humbled by the online condemnation and stated:

“Leo Burnett Tailor Made found a unique way to contribute photography of adventure destinations to their respective Wikipedia articles while achieving the goal of elevating those images in search rankings. We’re always looking for creative ways to meet consumers where they are. We’ve since learned that this effort worked counter to Wikipedia’s community guidelines. Understanding the issue, we ended the campaign. Our team has further accepted an invitation by Wikipedia to learn more about the platform and their work to share unbiased, fact-based knowledge. We look forward to working with Wikipedia to engage with them, and with respect to their network of volunteer editors, better in the future.”

You might be forgiven for thinking that this concluded the saga; social media does have a social conscience, and North Face may just have paid a heavy price after all, having to suffer the financial loss of production costs, agency costs and cost to their reputation. However, a cynic may suggest that the publicity caused by such stunts, the ensuing controversy and attention around it can be part of the overall campaign goal and brand marketing strategy.

So maybe that was the plan all along Now we are all very much more aware, more than ever, of North Face and of course (if you didn’t know them before, you do now), the ad agency Leo Burnett Tailor Made.

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Does Social Media = Jail Time?

Fraudulent litigants be warned!

Have you been entirely truthful? If not, you may fall foul to your own Social Media history!

The recent Court of Appeal judgment in Zurich Insurance PLC v David Romaine, [2019] EWCA Civ 851 (CA), makes it clear that committal proceedings can be brought against a litigant whose Social Media activity, in this case a Facebook account, reveals dishonesty.

The claimant issued personal injury proceedings against his former employer for noise induced hearing loss relying on a medical report which stated that he; ‘had not had any noisy hobbies’. The appellant solicitors commissioned an ‘intelligence report’, in which the claimants Social Media history was inspected, revealing that he was a motorbike enthusiast and performed in a live rock band. This was served. Tactically, the claimant discontinued his claim and the appellant issued committal proceedings. At first instance Goose J found that despite a contempt, it was not in the public interest for proceedings to be brought in circumstances of discontinuance at an early stage and dismissed the appellant’s application. The matter went on appeal, consequently the Court of Appeal granted permission for committal proceedings to be brought.

LJ Haddon-Cave stated; “a message needs to go out to those who might be tempted to bring – or lend their names to – fraudulent claims: that dishonest claimants cannot avoid being liable to committal proceedings merely by discontinuing their original fraudulent claim”.

It is now clearer than ever that:
• Electronic evidence is and will become vital in cases, to establish the merit of a litigant’s case. The inspection of such, ought to be an additional step for legal professionals and will become key part of the preparation process for litigation.

• Over the past decade Social Media has changed how we communicate and share information about ourselves and our lives. It is a treasure trove of evidence in the public domain. This is easily accessible and not exempt from the eye of the law. Any assertion in evidence and conduct of parties, can be proven or unproven by gathering evidence from Social Media platforms to form an ‘intelligence report’, which in light of this recent judgment, will most likely become commonplace.

• Discontinuance under part 38, cannot be used by a claimant as a tactic to ‘wind up’ a claim, without adverse repercussions, in circumstances where there is clear evidence of untruths, particularly, from social media posts and in response to part 18 questions or in their witness statements.

• Committal proceedings should be considered in cases of fraudulent conduct.

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London Stansted is the worst airport for flight delays in 2018

The Press Association has released a report on its analysis of the Civil Aviation Authority, (CAA), delay data, for all scheduled and chartered flights in 2018 across 24 major UK airports.

It shows Stansted had the longest average flight delays of any airport in Britain last year, as passengers were kept waiting on average 25 minutes. While the average flight delay across all the featured airports was 16 minutes.

Stansted is the fourth busiest airport in the UK and a hub for several low-cost eastern European airlines, as well as being Ryanair’s biggest base, it also covers significant operations by EasyJet and Jet2.

A spokesperson for Stansted blamed “a particularly challenging summer last year,” adding that “adverse weather and air traffic control issues had a dramatic impact on airline on-time performance”. Commenting further that a multimillion-pound investment by Ryanair to support its ground operation at the airport “has already helped deliver significant service improvements to flight punctuality”.

Which? Travel editor Rory Borland said: “It’s completely unacceptable”. “These delays aren’t just an inconvenience but can leave holidaymakers hundreds of pounds out of pocket… airlines should stop passing the buck and make it easier for their passengers by finally introducing automatic compensation.”

Agreeing, Alex Neill, a managing director at Which? said delays were “one of the most frustrating things about travelling” and urged passengers to “claim what they are entitled to”. She added that airlines should introduce automatic compensation, so people receive what they are owed “without having to jump through hoops”.

In response the Airport Operators Association, (AOA), listed a “range of factors” for delays last year, such as cold weather blasts, air traffic controller strikes in Europe, and disruption partly caused by constraints of “outdated” UK airspace infrastructure. They added, “Airports are working with air traffic service providers and the government to plan and deliver the necessary changes so everyone can continue to fly with a minimum of delays.”

Download to see the full list of average delays.

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Wizz Air! Get on board!

The UK’s airline of choice Post-Brexit, (potentially).

So, who are Wizz Air and why might they become the UK holiday makers airline of choice Post-Brexit?

Jozsef Varadi, Chief Executive Officer of Wizz Air, the Budapest-based airline, which offers routes from London to fast-growing non-EU destinations, takes a refreshingly frank but confident approach in answer to Brexit complications for airlines.

Varadi, simply finds the furore around Brexit ‘tiring’ and ‘would like to see the end of it, whatever it is.’ This contrasts with the cautious approach taken by some rivals. EasyJet recently raised concerns about how Brexit will affect demand. No such worries for Wizz Air as, according to Varadi, demand remains robust, while ‘current performance … is pretty solid’, with net profit for the year in the upper half of its guidance, showing a growth of 30 percent in London since the Brexit vote.

Varadi concedes that Wizz Air still have work to do to meet EU rules post Brexit. Due to share ownership rules, airlines that are not majority owned by EU nationals are set to lose their right to fly within the bloc after Britain leaves the EU.

Wizz Air are not close to being 50% owned by EU nationals outside of Britain. To resolve the issue, Varadi is seeking more EU investors, as well as, setting up a subsidiary in Britain to protect Wizz Air flights between the EU and the UK after Brexit and flights from the UK to elsewhere. In addition, like other airlines, Wizz Air has clauses in its articles of association which allow it to remove voting rights from all non-EU shareholders as a last resort.

Seemingly, Wizz is not fizzed and Varadi does not; ‘think that we’re going to end up with a disastrous scenario on aviation’, post-Brexit. He believes Britain should ‘just get it done and move beyond Brexit’. A positive outlook and sentiment, that might just get a warm welcome from UK holiday makers, seeking a Brexit / post-Brexit getaway, and who might just check-out Wizz Air.

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Norwegian Airlines losses revealed.

Norwegian airlines suffered a loss of £133.5 million in the first quarter of 2019. They are reassessing their financial situation since the impermanent global ban was incorporated on MAX 8 operations as the aircraft was involved in two accidents in a short space of time.

The airline currently has eighteen 737 Max 8’s and several deliveries have been placed on hold.

The chief executive of Norwegian Airlines said, he has numerous meetings with BA to discuss the negative effects on grounding to eliminate the problems the MAX 8 is causing Norwegian Airlines and the wider industry. He also stated the airline has been doing everything to ensure flights are carried out as normal by using wet lease companies when needed.

After suffering such a drastic loss, the airline intend to recover their profits margins by running an extensive cost-reductions programme and the sale of an, as yet undetermined, aircraft,

Currently, the airline express positivity in their new implementations this quarter despite suffering 737 Max problems. They indicate they have taken serious measurements in increasing profitability.

Samsung Galaxy S10’s connection failure.

Samsung have released their Galaxy S10 in Korea and it is already generating several connection complaints!

Korea states that Galaxy S10 users have no problems connecting to 5G, the issue occurs when customers connect to their LTE after being connected to 5G. Interestingly enough the phone does not recover its connection until users have rebooted their phone numerous times.

The Galaxy S10 5G is only available in Korea, it is expected to launch in the US on May 16 to Verizons network on a short-term basis. The Galaxy S10 is the fourth smartphone within the Galaxy S10 line-up.

In response to the issues, Samsung have delivered the relevant software needed for the phone to switch independently to each network. Regardless it is still bad news for Samsung. Two network carriers in Korea, LG U+ and SK Telecom have said they their 5G base stations are all up and running with no problems.

5G is only just beginning to launch so there is likely to be a number of issues. Many people have decided to wait before purchasing the Galaxy S10 until all the issues have been sorted out.

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