“What’s in a name?” A strike out, that’s what

Summary

A claimant received a nasty surprise this week when her claim for injury pleaded under the Montreal Convention was struck out with costs to the defendant of nearly £6,000. It was struck out because the only claim she could make against the defendant was under the unamended Warsaw Convention 1929.  However the Warsaw Convention had not been pleaded and 2 years had now passed since the accident.  This result may seem somewhat draconian when it was just one word of the title of the Convention which was some 4,011 miles out of place. 

What made the decision of District Judge Brooks in Bromley County Court all the more bitter for the claimant to swallow was that there was a pre-action admission of liability from the defendant air carrier.  The claimant had relied upon this for the past 18 months. 

This case highlights the need for claims arising out of carriage by air to be carefully considered, issued early and correctly pleaded.  Due to the substantive two year time bar,  CPR 17.4 does not apply and mistakes in the pleadings cannot be amended after two years.

The Law

Injury sustained during international carriage by air is governed by international conventions.  These start with the Warsaw Convention in 1929 and – after a series of amendments and additional protocols – end up with the Montreal Convention 1999.  Which convention applies to a particular claim depends on the contract of carriage between the passenger and the airline and which convention the states of the relevant departure and arrival countries have ratified, if any.

When it comes to determining whether the injury has been sustained in an “accident” or what the limitation period is, it does not really matter which Convention applies. The main liability provisions of all the various conventions are extremely similar and European regulations now require carriers who have their operating licence granted by an EU country to compensate passengers to Montreal Convention levels regardless of which Convention governs the carriage.

However, the importance of getting it right in the pleadings is enforced by the strict 2 year limitation period.  All the conventions have a substantive time bar which states that after 2 years, a right to claim damages under the convention is extinguished.  The convention claim dies.  There is no provision to extend the period or amend the claim after this time.  The Limitation Act 1980 does not apply. 

This means that CPR 17.4 – amendments after the expiry of a limitation period to add a new claim or amend the name or add a party – does not permit amendments to a convention case after 2 years.  This point was illustrated in the case of Hall v Heart of England Balloons Limited [2009] 1 Lloyds Rep 373.   The claimant had sued Heart of England Balloons Limited whereas the correct title of the defendant should have been Mr Gabb trading as Heart of England Balloons, Heart of England Balloons Limited not being incorporated at the time of the accident.  After a thorough review of the law, HHJ Worster at Birmingham County Court refused permission to amend and her claim was struck out. 

The same principle applies to prevent the addition of a new cause of action post 2 years– Western Digital Corporation and others v British Airways PLC [2001] QB 733.

A disappointed claimant with a dead convention claim cannot bring an alternative claim in tort or other legislation.  This point was settled by the House of Lords in Sidhu and others v British Airways PLC [1997] 1 All ER 193.  If a claimant has a convention claim, this is their exclusive cause of action against the carrier.

The Facts

The Claimant was travelling on a return ticket Sierra Leone – United Kingdom – Sierra Leone with British Midland Airways, the Defendant.  The only convention that Sierra Leone has ratified is the unamended 1929 Warsaw Convention and therefore it was this Convention that governed the Claimant's international carriage by air.   On 5 December 2010 the Claimant slipped over on a wet floor at Heathrow when heading to board the plane to return to Sierra Leone and was injured.

A letter of claim citing the Montreal Convention, negligence and the Occupiers’ Liability Act 1957 was sent to the Defendant airline and after investigation, a letter was sent stating that primary liability was admitted.

Some 7 months later proceedings were issued, just before the 2 year limitation period expired.  The causes of action were said to be the Montreal Convention, negligence and the Occupiers’ Liability Act 1957 and the Claimant also relied on the pre-action admission.  Because the only Convention that could apply was the Warsaw Convention the Defendant made an application to strike out the claim and withdraw the admission.

 

Two weeks before the hearing of the Defendant’s application, the Claimant made an application to amend the Particulars of Claim to plead the Warsaw Convention.  Within that application the Claimant’s solicitors admitted that it was the unamended 1929 Warsaw Convention that applied.

 

Both applications were heard by District Judge Brooks on 9 September 2013.  He found that, despite mentioning the Warsaw Convention in passing in the Particulars of Claim, it had not been pleaded as a cause of action.  Having been referred to Hall v Heart of England Balloons Limited, he found that CPR 17.4 did not permit an amendment to add a new cause of action, in this case that of the Warsaw Convention, to the claim.  Consequently, although the Claimant had a valid claim under the Warsaw Convention, as that claim had not been brought in time and she had no other cause of action she no longer had a claim against the Defendant.  Consequently, having considered the factors in the Practice Direction supplementing CPR 14 the District Judge gave permission for the admission to be withdrawn and struck out the claim with costs to the Defendant.

Conclusion

Mistakes - such as suing the wrong carrier, or just not properly identifying the right carrier, or citing the wrong Convention – can happen.  If the mistake comes to light after 2 years have expired, there is no basis – either within the Convention or provided by the CPR – to amend the claim or extend limitation.  The claimant’s convention claim will have died and cannot be resurrected back to life, although it can come back to haunt the solicitors who made the mistake.

Atiba-Davies v British Midland Airways Limited [2013] DJ Brooks, Bromley County Court 09.09.2013

Jasmine Murphy, Counsel for the Defendant instructed by Bally Atwal of the The Smith Partnership

Myles Jackson, Counsel for the Claimant instructed by Ajit Kaur of Gorvins Solicitors