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Following the Supreme Court’s decision in Stott v Thomas Cook  UKSC 15,  All ER (D) 30 (Mar), John A Kimbell and Tom Bird, barristers at Quadrant Chambers who acted for the appellant, advise that lawyers searching for exceptions to the exclusivity principle of the Montreal Convention are left with little, if any, hope of success in the English courts.
Mr Stott, a wheel chair user, issued proceedings for a declaration that Thomas Cook’s (a tour operator and air carrier) treatment of him was in breach of its duty and claimed damages for injury to his feelings.
The judge granted the declaration, but found he was precluded from awarding damages by the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention). The Court of Appeal, Civil Division, upheld the judge’s decision and the claimant appealed.
The Supreme Court, in dismissing the appeal, decided that Mr Stott’s claim had been squarely within the temporal scope of the Montreal Convention. Further, a claim for general damages for ill treatment in breach of equality laws or failure to provide properly for the needs of a disabled passenger should not be regarded as outside the substantive scope of the Montreal Convention.
Tom Bird (TB): The issue was whether the Montreal Convention blocked Mr Stott’s claim for damages for breach of the Civil Aviation (Access to Air Travel for Disabled Persons with Reduced Mobility) Regulations 2007, SI 2007/1895 (the 2007 Regulations). The 2007 Regulations are derived from EU law and give rights to disabled travellers throughout the EU.
A number of cases in the US and other jurisdictions have decided that discrimination claims are subject to the terms and limits of the Montreal Convention in the same way as ordinary personal injury or breach of contract claims.
Mr Stott’s legal team sought to argue that his claim should be treated differently to ordinary claims and be free of any restrictions under the Montreal Convention because it involved a claim for breach of a fundamental EU right.
John Kimbell (JK): The Supreme Court decided to follow the decisions in the US and elsewhere that any claim for damages arising from carriage by air, even one arising from breach of a statutory duty not to discriminate on grounds of sex, race or disability, should not be considered as outside of the scope of the Montreal Convention. In other words, it decided that the Montreal Convention takes precedence over local discrimination law, whether derived from national law or EU law.
TB: The travel industry can be confident that the conditions and limits of the Montreal Convention govern all claims for damages assessed on an individual basis, even if it is alleged that the passenger’s fundamental rights have been infringed.
Airlines do not need to make extra provision to cover possible aggravated or exemplary damages claims under national or EU law to cover claims arising from incidents involving allegations of discrimination against cabin crew or ground handlers. On the other hand, the comments by Lady Hale about the possible need to revise the Montreal Convention to make special provision for damages for breach of fundamental rights may be seized upon by rights campaigners.
JK: Lawyers searching for exceptions to the exclusivity principle of the Montreal Convention are left with little, if any, hope of success in the English courts. The Supreme Court dismissed the submission that the Montreal Convention only governed ordinary damages claims. The Supreme Court also dismissed the suggestion that claims could be brought outside the Montreal Convention as long as a breach of duty could be identified which occurred before carriage began. As Lord Toulson stated, it is no answer to the application of the Montreal Convention that the operative causes of an injury began prior to embarkation. To decide otherwise would encourage ‘deft pleading’ in order to circumvent the purpose of the Montreal Convention.
TB: The trend is towards firming up the exclusivity principle first recognised in Sidhu v British Airways plc  AC 430,  1 All ER 193, when the House of Lords considered the preclusive effect of the Warsaw Convention, the predecessor to the Montreal Convention. That interpretation was accepted and applied by the US Supreme Court in El Al Israel Airlines Ltd v Tseng, as well as in many other jurisdictions since. The Supreme Court’s decision in Stott serves to confirm this trend.
Significantly, the English Supreme Court has followed and approved US and Canadian decisions at first instance and appeal level to the effect that discrimination claims fall within the substantive scope of the Montreal Convention.
The Supreme Court of Canada is set to consider very similar issues in the case of Thibodeau v Air Canada (Case No 35100) on 26 March 2014. It will be interesting to see whether the trend is continued and the Montreal Convention’s exclusivity upheld.
John A Kimbell’s practice encompasses maritime law, aviation, insurance and reinsurance in addition to general commercial litigation and arbitration. Since 2001 he has been qualified to practice as a lawyer (Rechtsanwalt) in Germany.
Tom Bird specialises in commercial litigation and arbitration. His practice encompasses shipping, aviation, insurance, reinsurance, energy and insolvency disputes.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This article was first published on Lexis®PSL Personal Injury on 11 March 2014. Click here for a free trial of Lexis®PSL.
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