Author: Chris

(or Mitchell was misunderstood)

So the Master of the Rolls, Vos LJ and Jackson LJ have clarified the new (ish) Rule 3.9 and Mitchell in Denton & Ors v White & Ors [2014] EWCA Civ 906 by setting out that the test is now:

1. Is the breach serious or significant – if not then relief is likely to be appropriate;
2. Why did the failure or breach occur?
3. In all the circumstances – and giving the factors mentioned in Rule 3.9 the necessary weight – should relief be granted?

The court is particularly critical of uncooperative litigation – a cornerstone of the Jackson reforms – and the satellite litigation that has developed. The Court of Appeal provides direct guidance to judges that parties taking an opportunistic or uncooperative approach to litigation should be dealt with by way of costs sanctions and points out that this situation can be recorded in its order so as to extend beyond the (often relatively minor) costs of the application into consideration upon costs at the conclusion and gives examples of indemnity costs or overall reductions.

It is worth noting that the Court of Appeal is critical of doing justice in the immediate case only bearing in mind the scarcity of judicial resources.

The effect seems to be intended to foster a more cooperative approach to litigation but how it bears out remains to be seen.

Where costs remain a significant issue the intended effect may work but where parties are

As those of you who know me are probably aware I spend a reasonable amount of my working day suing on behalf of beleagured holidaymakers abd whilst I’d like to put down the several thousand words I could on various peculiarities of litigation inolving foreign elements I thought I’d start with a nice light hearted one.

The good news in Jet2.com v Huzar [2014] EWCA Civ 791 is that when a plane is delayed technical operations issues – even when unforeseen – do not amount to a defence to the claims for statutory compensaiton decreed by Europe.  Small comfort for a holidaymaker delayed by the 27 hours Mr Huzar was but England (unless the Supreme Court disagrees) is happy with a simple and clear system for compensation for flight delays.

The case of Sturgeon v Condor & Bock v Air France (conjoined cases C-402/07 & C-432/07) extended the right to compensation found in EC Regulation 261/2004 to those passengers whose flight is delayed by at least 3 hours.

Jet2.com took the view that the defence of extraordinary circumstances found in Article 5 of the Regulation applied where a fault arose during normal operation. The Court of Appeal disagreed significantly finding that faults arose out of normal operation and it is within the airlines’ business to be ready and able to deal with these.

There is a remaining small avenue for an airline to rely upon this basis in relation to airtcarft faults – but only where the facts giving rise to the problem are themselves extraordinary. In particular those examples in the recitals to the Regulation – third party acts (such as war, terrorism, air traffic control decisions – but not subcontractors) or freak weather remain open to an airline.