Uncategorized – Page 9 – Whitestone Chambers

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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Apple tracks you!

Apple keeps a record of all frequent locations visited as the iPhone tracks your duration spent at the location and what type of transportation was used to get there. This is done by a small device which logs all your locations and how many times you have visited them by tracking your ‘Significant Locations’.

Apple claim this allows them to provide a personalised service such as traffic routes and help in building photo memories. Google also records user’s location data, through location history found if you have a Google account activated on your phone.

The location data is encrypted and stored on your iPhone and it is not distributed without consent. Do look at this part of your device, it is a bit creepy.

If you want to stop Apple from tracking your ‘Significant Locations’ follow the steps to turn it off and delete the history from your iPhone, so the data is untraceable.

Open the Settings app and click the Privacy tab.
Then click the first option which is Location Services.
Scroll to the end of the page and click System Services.
Then you will see a list of the inbuilt Apple services you have allowed access to your location data.
Continue scrolling and click on Significant Locations, a password, fingerprint or face ID will be requested.
Then you will see a list of all your locations, you can even find the exact addresses visited and the duration spent at that location.
Scroll to the end and click Clear History.
Scroll back up to Significant Locations, click the screen and finally this secretive feature is removed!

It is likely that Apple may still have access to your data, at least you can prevent access to your location data.

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Wow Air failure leaves thousands of passengers stranded.

Iceland’s Wow Air ceased operations and cancelled their flights resulting in passengers being left stranded. Passengers traveling with Wow Air are advised to book with other airlines.

Airlines may offer rescue fares or flights at a reduced fare, the travel editor for the independent said he did not think other airlines would intervene as they have no intention of making a profit from a bad situation.

Wow were selling flight tickets until 07:00 on the morning they went bankrupt. There is a possibility of compensation if passengers booked their flights through a package, they may be entitled to get their money back as they were part of an ATOL. If this is not applicable to passengers, then they might be able to claim their money back through their travel insurance. Otherwise passengers may be eligible to receive some compensation from Wow according to the European Regulation on Air Passenger Rights.

Lately airlines are experiencing financial trouble especially with higher fuel bills. Ryanair admitted to their first quarterly loss since March 2014, Flybe was bought for a one penny share and Germania airlines went bankrupt. There is further turbulence ahead in 2019.

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Are Unqualified Advisers Your (McKenzie) Friend? Duty of Care Explained

The High Court has provided helpful guidance as to the duty of care which legal advisors, such as McKenzie Friends, owe to its clients in the recent case of Paul Wright v Troy Lucas (A Firm) & George Rusz. It was ruled that if an unqualified legal advisor hold themselves out as a competent legal professional, then they will owe the same standard of duty of care as a competent legal professional.

In 2004, following a negligent operation at the Basildon & Thurrock University Hospital NHS Foundation, Mr Paul Wright, aged 70, was left with three plastic bags inside his body; he suffered severe injuries and was left permanently disabled as a result.

Mr Wright sought the assistance of Mr George Rusz, by way of his ‘litigation firm’, Troy Lucas, who described himself as ‘an experienced legal professional’. Although Mr Rusz did not describe state that he was a barrister or a solicitor, he boasted to Mr Wright that he was ‘as good as, if not better, than any solicitor or barrister’. Whilst the NHS Trust paid £20,000 in full and final settlement of the clinical negligence claim, Mr Wright had to pay £75,000 of the NHS Trusts’ legal costs.

Mr Rusz and Troy Lucas were held to the standards of the ‘experienced legal professionals’, which they had held themselves out to be. The High Court found that the defendants had been professionally negligent in their poor conduct of Mr Wright’s clinical negligence claim.

Not only had the defendants wildly valued the claim at £1.1million, then later £3million, without any supporting material, but also, adverse costs orders were made against Mr Wright, due to their failure to comply with court orders.

Accordingly, the defendants were ordered to pay the sum of £263,759, plus legal costs of £73,200, to compensate Mr Wright for what he would have otherwise likely recovered, had he received proper advice from a competent legal practitioner.

The ramification of this decision is welcomed as it protects unsuspecting consumers, who may not understand the difference or be able to afford the legal services provided by a barrister or a solicitor, in comparison to an unqualified legal advisor.

Given that there is an increase in the number of the likes of McKenzie Friends, there is a growing concern that these legal advisors are not regulated and do not necessarily have appropriate insurance or possess proper legal qualifications. Subsequently, this judgment acts as a warning to this growing, unregulated industry that it will face liability, if it falls below the standard of a competent legal professional.

This decision therefore serves as a cautionary tale that you cannot hold yourself out to share the same competency and skills as qualified legal professionals, whilst also demand to be held to a lower standard as you are not suitably qualified.

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Apple Patents iPhone camera change.

Leaks about Apple’s innovation always seem to come from Apple. Secretly, Apple has lodged a patent about their new iPhone. Apple is going to release an iPhone that will tell you when to take a photo and the camera will open automatically. Yes, you heard that correctly. The hardware for this production has been confirmed and it is due to feature in iPhones this year. Apple explains how this will work. The automatic camera will activate once detecting an intent to take a photograph or video. This will be effective when the phone is placed in a typical photography position, then the camera will open automatically.

Apple filed a patent with the US Patent and Trademark Office on 17 January 2019.

The motion to detect the photography position is handled by accelerometers and a proximity-based sensor. At present iPhones have a short-range proximity sensor.

Not everyone will be a big fan of Apple’s automatic camera, but it will definitely add colour to the technological market.

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The demise of the Airbus A380.

Airbus SE have recently announced their decision to stop the production of the model A380 by 2021, which was delivered by Tom Enders the Airbus Chief Executive. The Airbus A380 at the start of its production was the spacious, quieter and more comfortable alternative for passengers. As a result of the halted model production, Airbus has estimated at least 3,500 jobs to be affected. The company’s largest consumer, Emirates are said to be decreasing their order from 53 aircrafts down to a mere 14 aircrafts.

The A380 for many years had been a popular aircraft among its buyers and therefore had struggled to keep up with their orders, making their decision a turning point for many in the aviation industry. Despite their popularity, Airbus encountered several glitches very early on. For the Airbus A308, issues had varied from its faulty communication to its first flight in 2007, when the climate of the economy was at crisis point.

The largest consumer of the model, being the Emirates Airline ordered 160 units in total. Despite these impressive figures, Emirates inevitably became a part of the A380 demise. As the predominant customer for the Airbus, the airline held the power to factually make or break Airbus SE. Therefore, Emirates inconclusive nature regarding the 20 units had Airbus withdrawing the production.

Unfortunately for Airbus, plans for resale have not exactly gone accordingly. With the US carrier completely avoiding Airbus, the alternatives were the Chinese and Japanese airlines. However, it is worth mentioning that the Chinese carriers have purchased models in incredibly low numbers and as for the Japanese it is a recent phenomenon as they traditionally are Boeing 747 consumers. However, adding to the vortex of negativity surrounding the A380, Qantas Airways Ltd have cancelled an outstanding order alongside the retraction of 20 orders by Amedeo.

George Ferguson the global aviation analyst says that, “Airbus” cancellations of the A380 eliminates a drag of commercial airplane margin, given at the current rate of 12 the company garnered no profit on 2 billion euros of revenue. Maintaining production at lower rates would have resulted in a loss”.

Where the A380 model has monopolised in airports such as London Heathrow with the adoption of the model, it has sadly failed to create shockwaves in the aviation industry to allure potential buyers. Airline popularity lies with aircraft models that encompass luxurious elements including flight bars, showers and suites. This decision by airlines have also proved to pay off, as the passengers have seemed to indulge in the newer model facilities.

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Lithium-ion batteries

The advent of the smartphone and tablet devices in the last decade has led to a sharp rise in the number of portable electronic devices that passengers are carrying on planes.

Most personal electronic devices use a rechargeable lithium-ion battery. A fault or damage to a lithium-ion battery increases the risk that the battery will short circuit and catch fire. As a lithium-ion battery ages, the risk of a fault with the battery increases. Therefore, the risk of the battery short-circuiting and catching fire also increases.

The increase in the number of personal electronic devices being carried by passengers increase the risk of a lithium-ion battery fire on a plane.

While lithium-ion battery fires are still relatively rare, they are increasing. The Federal Aviation Administration in the United States documents 225 incidents of smouldering, fire or explosion of lithium-ion batteries since 1991.

A total of 81 of these incidents took place in 2017 and 2018. That represents more than a third of the total lithium-ion battery incidents in relation to smouldering, fire or explosion that the FAA documents have taken place since 1991.

A fire in the confined space of an aircraft cabin is potentially catastrophic.

WHAT IS THE BEST WAY TO QUELL A LITHIUM-ION BATTERY FIRE?

The use of a Halon Class D fire extinguisher is generally considered the safest and most effective way to extinguish a lithium-ion battery fire.

Water can then be used to cool the device and to stop the fire spreading.

Concerns have been expressed that high concentrations of Halon in a confined space like an aircraft cabin could have adverse health impacts for passengers and staff on the plane. However, this risk is generally outweighed by the toxic smoke of a lithium-ion battery fire and toxic smoke that may be given off by other material in the cabin that catches on fire.

More recently, it has been reported that some airlines have issued cabin staff with protective gloves and air proof bags in a bid to control a lithium-ion battery fire. The idea is that a device that is overheating or has caught fire can be handled with a protective glove and placed into an airtight bag where the fire is deprived of oxygen.

Attempting to bring a lithium-ion battery fire under control in this way carries two distinct risks. The first is that the device may explode, showering the person handling the device with molten shrapnel. The second is that the protective bag itself may potentially catch fire. The use of a halon fire extinguisher is generally preferred to this method and is the most effective way to bring a lithium-ion battery fire under control.

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Blanche v easyJet – lifting the veil on ATC decisions?

The Court of Appeal confirms that compensation under Regulation 261/2004 is not payable by carriers when delays/cancellations caused by air traffic control 1. On 6 February 2019, the Court of Appeal (“CoA”) handed down judgment in the case of Daniel Blanche v easyJet Airline Company Limited [2019] EWCA Civ 69 (“Blanche”).
The case concerned whether a court, in determining a claim for flight delay/cancellation compensation pursuant to EU Regulation (EC) No. 261/2004 (“the Regulation”), needed to examine the underlying reasons behind a decision made by air traffic control (“ATC”).

Facts of the case

The appellant/claimant was booked to travel with the respondent/defendant from Brussels (“BRU”) to London Gatwick (“LGW”) on 10 October 2014 (“the flight”). The flight departed late and arrived into Brussels 5 hours and 42 minutes after its scheduled time of arrival.
The aircraft scheduled to provide the flight was to first operate the outbound sector from LGW to BRU, leaving a 30-minute turnaround before the flight was scheduled to depart BRU.
However, there were thunderstorms at LGW and ATC at LGW suspended all eastbound departures from LGW, known as an air traffic management decision (“ATMD”). The aircraft eventually arrived into BRU to operate the flight back to LGW. The delay to the flight in question was therefore a knock-on delay from the delay to the outbound LGW-BRU flight.
At the County Court at Luton, at first instance DJ Richard Clarke dismissed the claim for delay compensation on the basis that easyJet had demonstrated that the delay was due to extraordinary circumstances within the meaning of Article 5(3) of the Regulation.
On appeal, HHJ Melissa Clarke dismissed the claimant’s appeal, holding that the district judge had adopted the correct approach to Recital 15 and Article 5(3) of the Regulation on the evidence.

CoA decision

On appeal from HHJ Melissa Clarke’s decision, Coulson LJ, giving the only reasoned judgment (with which King LJ and Sir Ernest Ryder agreed), resoundingly rejected the arguments put forward by the appellant.

Examining the underlying reason for the ATMD?

Coulson LJ gave three reasons for rejecting the appellant’s primary ground of appeal that what mattered was not the ATMD to suspend all eastbound flights from LGW but the underlying reason for that ATMD, namely the thunderstorms.
Firstly, this ground of appeal was rejected as it flew in the face of how Recital 15 of the Regulation was to be interpreted. Coulson LJ held that Recital 15 was prescriptive, stating at paragraph 15:

‘In my view, Recital 15 could not be clearer. It states that, for the purposes of the Regulation, “extraordinary circumstances should be deemed to exist” where an ATMD has (amongst other things) caused a delay to a particular aircraft on a particular day. The use of the expression “should be deemed to exist” is critical, because it leaves no room for doubt or argument: an ATMD which causes a long delay to a particular flight on a particular day should be deemed to be an extraordinary circumstance. That clear guidance is not qualified in any way.’

Secondly, this ground of appeal was rejected as no case law (either domestically or from the Court of Justice for the European Union) supported the appellant’s interpretation of Recital 15. No case referred to by the appellant addressed the meaning of Recital 15, save for McDonagh v Ryanair Limited [2013] 1 Lloyd’s LR 440 in which it was confirmed that the ATMD to close Irish airspace (as a result of volcanic ash) was an extraordinary circumstance.
Thirdly, the ground of appeal was rejected as the interpretation put forward ran contrary to the various policy considerations involved. Coulson LJ explained the different wording between Recitals 14 and 15 as being down to the fact that carriers ‘generally had no control’ over delays caused by ATMDs. He continued at paragraph 31:

‘It would be impractical and time-consuming if carriers felt obliged routinely to challenge every ATMD at the time that it was made, because they knew that they would need subsequently to justify that decision in answer to any claims for delay. It would also be impractical for the courts to allow a debate about the merits of a particular ATMD long after the event, and in circumstances where ATC would not be party to the litigation. Such an approach would be disproportionate to the typical value of compensation awarded in cases of this kind.’

Coulson LJ further held that, based on the language of Recital 1 – to ensure ‘a high level of protection’ for passengers – that protection ‘starts with the need to ensure their safety’. He continued at paragraph 32 thus:

‘The paramount importance of safety considerations explains the significance that Recital 15 ascribes to ATMDS: it is there, as a separate and stand-alone Recital, in order to emphasise that any issue of safety, which would in turn require an ATMD, takes the situation out of the ordinary.’

In response to the concern that Recital 15 constitutes a sort of “get out of jail free” card, the judge emphasised that carriers still needed to satisfy the second limb of Recital 15 (and Article 5(3)) that all reasonable measures had been taken to avoid the delay due to the impact of the ATMD1.
Coulson LJ noted in passing that his conclusions on the primary ground of appeal were consistent with a number of decisions of the lower courts, namely in Horstink & Snapper v British Airways (Liverpool County Court) and Dunbar v easyJet (Scottish Sheriff Court).

The inapplicability of the inherency and control test to Recital 15 cases

The learned judge then turned to consider whether the first limb of the test set out in Wallentin-Hermann v Alitalia-Linee Aeree Italiane SpA (C-549/07) – whether an event is ‘inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin’ – applied to a Recital 15 case. In holding that the test was not applicable, Coulson LJ explained that neither in Wallentin-Hermann or Huzar v Jet2.com [2014] EWCA Civ 791, was Recital 15 mentioned. There was therefore no reason for the inherency and control test to apply when Recital 15 deals with ‘the binding decision of a third party (namely the ATC) which should be deemed to be an extraordinary circumstance’2.

Cause of the delay was the ATMD which passed the inherency and control test

Coulson LJ held that if he was wrong, and the inherency and control test did apply, then the ATMD ‘was not inherent in the respondent’s normal activity of making/organising such flights; it was the independent decision of a third party, over which the respondent had no control, and it formed no part of the respondent’s own activities’3.

1 Paragraph 34. 2 Paragraph 39. 3 Paragraph 47.

ATMD relating to a particular aircraft on a particular day?

The last submission raised on appeal was that the ATMD did not relate to a particular aircraft on a particular day, as required by the language found in Article 15, as over 20 flights were affected by the ATMD in question.
Coulson LJ gave this submission short shift, holding that it would ‘make no sense if an ATMD affecting one flight was covered by Recital 15, but that an ATMD (made for precisely the same reason), which affected two or more flights, fell outside Recital 15’4. Provided the carrier demonstrated ‘the necessary causal link between the ATMD and the particular delay’5 then the first limb of Recital 15 was made out.
In concluding, Coulson LJ held that a series of ATMDs, issued as ‘part of a developing or ongoing situation, particularly when the cause of the problem is the weather’6 could not undermine a defence based on Recital 15.

What impact?

Prior to this judgment there was some debate as to the status of Recital 15, whether it was guidance only to be taken into consideration or whether it amounted effectively to a deeming provision. Coulson LJ described Recital 15 to be ‘a much more prescriptive provision [than Recital 14] which, all other things being equal, equates an ATMD with extraordinary circumstances, and thereby allows the Article 5(3) defence to run’7. It is clear now that Recital 15 is in fact a deeming provision in light of this judgment.
The repeated reference in the judgment to safety being the “paramount” concern, in the same vein at the CJEU in Marcela Pešková, Jirí Peška v Travel

4 Paragraph 53. 5 Paragraph 55. 6 Paragraph 57. 7 Paragraph 43.

Service A.S. (C-315/15, 4 May 2017)8, will be of some comfort to carriers who regularly face claimants and courts who either ignore this important factor or give it little deference.

The judgment will also be of welcome to carriers for clarifying the causality of ATMDs. Provided a carried can establish a causal link between the ATMD and the particular delay then Recital 15 will be made out.
Carriers should similarly be grateful for the gloss added by Coulson LJ to the inherency and control test. It would appear that if a particular circumstance in is an independent decision of a third party, over which the carrier has no control, and it forms no part of the carrier’s activities9, then it will amount to an extraordinary circumstance.
What is less clear from the judgment is the CoA’s response to the issue of when one needs to apply the inherency and control test when a circumstance that is not extraordinary leads to an ATMD. The example given was when an aircraft is taxiing towards the runway when ATC spots smoke which was due to an ‘ordinary technical defect’ which thus leads to an ATMD. Perhaps unhelpfully it was not suggested what the ATMD would be, whether for the return of that aircraft or a wider restriction of the closure of the runway for example.
The issue did not arise for determination on the facts of the case as Coulson LJ held that the cause of the delay was not the thunderstorms. He held that the aircraft had not taken off on time as it had been prevented by ATC at Gatwick – ‘it would have bene unlawful and unsafe for G-EZIN to ignore that prohibition and endeavour to take off in any event’10. Nonetheless, Coulson LJ suggested that in 8 At paragraph 25. 9 Paragraph 47. 10 Paragraph 46.

A scenario where there are ‘two competing causes of the delay’, it is for the court ‘to decide which was the operative cause in accordance with the test in Pešková’11.

Interestingly, Coulson LJ went on to state the following12 on a finding that the delay in the hypothetical scenario was found to be due to an ATMD:

‘…I am not persuaded that there would be any unfairness or illogicality in any event. For the reasons which I have already given, safety considerations must be paramount. If in his example the ATC acted because of the smoking engine then, whatever the ultimate cause of that problem, it was of the upmost importance to ensure that the flight was aborted. Everything else was secondary. So, although hypothetical examples can be found of circumstances where an ATMD might, on analysis, “hide” a more mundane reason for the delay, it seems to me that that would be a small price to pay to ensure that the safety of all air passengers remained paramount. Indeed, I am confident that this requirement was precisely what the draughtman had in mind when he or she made Recital 15 a separate and stand-alone provision deeming ATMDs to be “extraordinary circumstances”.’

The judgment appears to, on the one hand, state that in a scenario such as the one proposed by appellant, the Pešková “subtraction test” needs to take place (if one is left with three hours or more of a delay caused by non-extraordinary circumstances then compensation is payable). On the other hand, Coulson LJ appear to state that this exercise need not take place if a non-extraordinary circumstance ultimately leads to an ATMD (or possibly other extraordinary circumstance). Whilst carriers may feel inclined to follow the latter remarks made by Coulson LJ, this flies in the face of the CJEU’s decision in Pešková.
For now (subject to what happens in a post-Brexit world), carriers are advised to continue to evidence and argue that all the causes of a delay are extraordinary, unless it can be clearly proved that the only cause of the delay was an ATMD.

11 Paragraph 41. 12 At paragraph 42.

Carriers will, of course, still have to provide that they took all reasonable measures to avoid the delay, whether caused by a ATMD and/or some other circumstance.

10 February 2019

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Happy New Year & Cyber Security – 6 new steps to consider in 2019.

Malware attacks, data breaches, security hacks and microtargeted personalized advertising all formed part of the digital low life in 2018.

In order to keep up with the modern world, technologies must advance. So how does one keep up with security and software protection. With the commencement of 2019 and new software releases, here are a few tips on keeping your digital life free from manipulative use.

Create boundaries and abide by them.

Research shows the best way to stay safe is by setting boundaries. Agree on what data you are happy to share involving online services and apps and stay bound to it. This is preparation for when you are asked to share data falling out of any agreement. Consider reducing your time spent on online discussions and it may be useful to set a time limitation on digital security as it is endlessly time consuming.

Setting filter trends.

People who find news on social media, set their social media feed trends. Due to this those people are unlikely to find news they disagree on as they will be displayed with articles they have previously shown agreement with. This isolates people in developing further views and reduces their chances of generating a different angle.

All Slides and Purple Feed are free online tools that display social media reports and news reports involving different political perspectives. The information comes from across the political spectrum and does not replicate previous search histories.

Having a safe password.

The strength of your password does not determine the safety of your account, as people tend to reuse their passwords for many accounts. It is known that researchers are notified when a reused password has been leaked. Therefore, it is highly recommended to use different passwords. A password manager software can be used to detect hacks. (Do read our article on pin numbers)

Using a multi-factor authentication.

Having an additional pin number, when logging into your financial accounts, social media and emails adds a lot more protection. Multi-factor authentication sends you a six-digit pin code as part of your log in process. For more protection you can even consider a code-generating app.

Deleting apps you no longer use.

Apps loaded on your phone track you and provide your information to marketing and advertising agencies. Therefore, if you no longer use an App delete it and if you need it again, redownload it. This reduces companies tracking where you go, time spent at locations and identity recognition.

Updating the apps you use.

Useful advice provided by experts is to ensure software on your computers and apps on your phone are always kept up to date.

These 6 ideas will help reduce the chances of hackers exploiting your data and allow you to keep safe and on high alert in 2019.

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