Mahapatra v TUI UK Ltd

There are two applications before the Court: (a) The Defendant’s application for summary judgment dated 24^th July 2018 and (b) The Claimant’s cross-application to amend her Particulars of Claim dated 12^th September 2018.

This claim concerns an incident which occurred on the 16^th January 2015 whilst the

On the 9^th January 2017 the Claimant caused a claim form to be issued against the

By its Defence filed on the 5^th June 2017 the Defendant has drawn attention to the proviso to Art 1(8) of the Convention which provides: “However with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation” and contended that the injury occurred on a part of the structure which formed part of the port structure owned by the Cuban Ministry of Transportation and, thus, was outside the scope of the Convention.

The Defendant has applied for summary judgment pursuant to CPR r. 24.2 on the basis that the Claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at a trial.

For the Defendant Mr Alex Carington submitted:

Ms Sarah Prager, for the Claimant, submitted:

This matter concerns an application for summary judgment for the Defendant on the ground that the Claimant has no real prospect of successfully pursuing the claim. The starting point is to consider the principles relevant to the making of such an order. These may be summarised as follows:

The court must consider whether the Claimant has a "real" as opposed to a

Although Ms Prager sought to argue that there is an issue of fact as to where the Claimant was injured, in my judgment the photographic evidence available clearly indicates that the Claimant was injured in a position on the walkway or structure which was a permanent fixture operated by the port authority. Ms Prager acknowledged that there is no evidence available which remotely suggests any contrary conclusion. In these circumstances the court should carry out an exercise of assessment to establish whether there is an absence of reality in a case being put forward. In my view the suggestion that it might be established that the injury occurred other than in an area of the structure which was a permanent part of the port structure lacks reality and should be disregarded for the purposes of deciding the present application.

However, as I understand the position, Ms Prager sought not only to argue that the actual position where the injury took place is a factual matter which is in issue, which I have considered above, but there is also an issue as to whether the circumstances in which the injury took place fall within the provisions of Art.1(8) of the Convention. The full wording of Art.1(8) of the Convention provides that carriage covers “with regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation, and the period during which the passenger and his cabin luggage are transported by water from land to the ship or vice-versa, if the cost of such transport is included in the fare or if the vessel used for this purpose of auxiliary transport has been put at the disposal of the passenger by the carrier. However, with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation” (emphasis added).

In Jennings v TUI UK Ltd (t/a Thomson Cruises) [2018] EWHC 82 (Admlty), I was asked to consider whether a passenger who was in the process of disembarking from, as it happens, the same vessel in the port of Malaga and was injured whilst on the fixed walkway leading to the terminus was being ‘carried’ within the provisions of Art 1(8) of the Convention. I held that he was not because of the proviso contained at the end of Art. 1(8), underlined above, and because the area in which the injury occurred was within the proviso as being a fixed port installation. Ms Prager recognised that, in the present case, the injury occurred in or on part of the port installation but drew attention not only to the decision of HHJ Simpkiss in Collins v Lawrence [2017] 1 Lloyds Rep 13, which I did consider in Jennings, but also to the views of Hamblen LJ in the course of deciding whether the claimant in that case should be given permission to appeal. Although Ms Prager did not put it so bluntly in the course of the hearing I consider that she was urging me to conclude that my decision in Jennings was wrongly decided or, at least, there is a real prospect of successfully arguing that it was.

In Collins v Lawrence [2017] 1 Lloyds Rep 13, a case in which Ms Prager appeared for the Claimant, HHJ Simpkiss held that the Convention applied where a passenger was injured when he fell in the course of disembarking, by way of free standing steps leading from a grounded fishing boat to a shingle beach, so that the claim became time barred under the more restricted provisions as to time limitation which arise under the Convention. Ms Prager also appeared before Hamblen LJ on an application for permission to appeal the above decision. Hamblen LJ upheld the reasoning of HHJ Simpkiss, refused permission to appeal and gave reasons for that decision which he caused to be reported.

In Jennings v TUI UK Ltd (t/a Thomson Cruises) I held that the walkway was a fixed structure set on the quay and therefore, at the time of the incident, the Claimant was in or on a port installation as referred to in the exception set out in Art 1(8) of the Convention and therefore the injury did not occur at a time which was included during a period of carriage for the purposes of the Convention. I set out my reasons for distinguishing the decision of Collins v Lawrence as decided by HHJ Simpkiss and I do not consider that they need to be repeated here. The additional question is whether the views of Hamblen LJ in Collins v Lawrence should cause me to change the approach I adopted in Jennings.

The hearing in Jennings took place on the on the 14^th November 2017 and the judgment was handed down on the 22^nd January 2018. In the meantime Hamblen LJ gave his judgment on the 23^rd November 2017. Each of the decisions was thus, as I understand, made without any reference to the other.

It was not argued in Collins that the proviso to Art.1(8) of the Convention specifically applied in that case. Thus neither the application of the proviso nor the question of whether the type of fixed walkway relevant in Jennings case came within the proviso contained in the Convention. In paragraph 19 of his judgment Hamblen LJ considered the matter of the “gangway” provided by the shore facility. He was dealing with an argument raised by analogy and it is not clear whether he was referring to the “gangway” which usually refers to the moveable gangway placed between a ship and any fixed port structure which might properly be regarded as part of the port installation. In my judgment there is a distinction between a moveable “gangway” and a walkway which is, in my view, part of the port installation. Whether an injury which occurs on the moveable gangway is to be considered as taking place in the course of carriage has not, so far as I am aware, been considered or decided and it is a moot point as to whether it would be considered as part of the port installation for the purposes of the proviso. The issue of whether a walkway which forms part of the fixed structure is, or is not, a port installation or even forms part of the quay itself was not a matter which was necessary for the decision in Collins and if, which I do not think is the case, Hamblen LJ was intending to express a view on that aspect I respectfully consider that such a view would be obiter.

For the reasons set out I do not consider that knowledge of Hamblen LJ’s judgment would have caused me to come to a different conclusion in Jennings. During the present hearing there was some consideration as to whether the decision in Jennings has been appealed or been the subject of an application for permission to appeal. In the event counsel considered that it had not and, if it has, the results of such appeal or application have not been brought to my attention. Jennings is a decision of the Admiralty Court which deals with the specific issue of whether the fixed walkway in a port is part of the port installation for the purposes of the proviso to Art 1(8) of the Convention and thereby remains the law as presently decided until it is either appealed or held to be wrongly decided.

As the facts in the present case indicate that the injury took place on a structure which is, as I decided in Jennings, to be considered as part of the port installation for the purpose of the proviso in Art 1(8) of the Convention a contrary decision in this case would be inconsistent with the decision in the Jennings case. In my judgment it follows that the

However, as so frequently occurs in this type of application, the Claimant has issued an application to amend her Particulars of Claim so as to raise issues which should not be subjected to the attention of CPR Part 24 and thereby defeat the Defendant’s application. In such cases the court must exercise its discretion as to whether the proposed amendments should be allowed. Pursuant to CPR Part 17.3 the court should consider whether the proposed amendments do themselves have a real prospect of success and where the application is made after the expiry of a relevant limitation period it may, by virtue of the provisions of CPR Part 17.4(2), only allow the amendments if they arise out of the same or substantially the same facts as have been pleaded. In addition the court should, in exercising its discretion, consider the strength of the claim and whether there has been delay in making the application to amend and whether the delay can be justified (see Lokhova v Longmuir [2016] EWHC 2579 (QB)).

The proposed amendments are attached to the Claimant’s application dated the 12^th September 2018. The first amendment is contained in Paragraph 7. It relates to the original claim as pleaded and seeks to pray in aid the decision of Hamblen LJ in Collins v Lawrence. This aspect has already been considered above and since I have already decided that that decision does not assist the Claimant’s case it follows that it is not an amendment which provides the Claimant with a real prospect of success on the claim. Accordingly, in my judgment, permission to make that amendment should not be allowed.

Paragraphs 8 to 12 and the additional part of paragraph 13 seek to introduce a claim under the Package Travel etc Regulations of 1992 (“the Regulations”). The incident relating to the alleged injury took place on the 16^th January 2015 and the application to amend was therefore made over 3 years after the injury occurred. The claim has therefore been made outside a relevant time limit applicable to that type of claim. The new pleading alleges that the holiday provided by the Defendant was a Package contract within the meaning of

However if the conclusion set out in paragraph 20 above is wrong it is necessary to consider whether the court should exercise its overall discretion as to whether to allow an amendment taking account of all the circumstances including the strength of the claim and whether the application to amend has been made timeously.

As to the strength of the claim under the Regulations I considered this aspect at some length in paragraph 26-31 of the judgment in Jennings. In paragraph 31 of Jennings I considered whether the Defendant would owe a duty of care in the light of the decisions in Jones v Sunworld [2003] EWHC 591 and Martens v Thomson Tour Operations Ltd 1999 MCLCC (unreported) and the paragraph 5.82 of Saggerson on Travel Law and Ligitation, 6^th Ed. by Matthew Chapman, Sarah Prager and Jack Harding. I concluded that there was no duty with respect to the harbour installation itself and that the defendant in that case was not under a duty to issue a warning so as to be personally liable for the injury. I also noted, in paragraph 32, that, following the decision of Tomlinson LJ in Lougheed v On The Beach Limited [2014] EWCA Civ 1538, if it is to be contended that the Defendant is liable for the acts of foreign operators, it will be necessary to establish what the local standards are and that there has been a breach of them. As has been stated in Saggerson on Travel Law and Litigation (supra) at paragraph 5.173: “The cases demonstrate the continuing importance of the local safety standard, however it must be expressed, as the filter through which package holiday accident claims must pass on the way to a finding of liability. The claimant bears the burden of proof in this regard”.

On this aspect Mr Carington has submitted that the Claimant must prove a breach of local standards but has not pleaded or provided any evidence of any applicable local standards or pleaded a breach of such standards. In consequence I take the view that the proposed amendments to the Particulars of Claim fail to plead a case which has any real prospect of success and, accordingly, permission to amend should be refused.

Further, in considering whether it would be proper to allow the amendment I consider that there has been a significant delay in seeking to amend the claim which cannot be justified. The witness statement of Ms Manders, in support of the Claimant’s application, effectively states that the amendments are made as a consequence of receiving the

For the reasons set out above I hold that the Claimant’s application to amend the claim should be dismissed and that the Defendant’s application for summary judgment pursuant to CPR Part 24 should succeed.