A BLM case heard in the High Court last week involves significant questions of jurisdiction under the recast Brussels I Regulation (reg 1215/2012), certain of which had been aired in the recent cases of Lackey* and Cole*, which will be familiar to those involved in cross-border litigation. The novel question in the current case – probably of greatest interest to insurers – was whether a territorial scope clause in the policy between insurer and insured had the practical effect of barring the third party claimant from accessing the favourable jurisdiction options set out in section 3 of the regulation.
In the mid-1990s, the litigation involving hot coffee served by McDonald’s in the USA acquired almost urban myth status. According to the key legal reference source that is Wikipedia, the “1994 product liability lawsuit became a flashpoint in the debate in the United States over tort reform” – which suggests to me that reports of the case would probably have ‘gone viral’ had social media been around at the time.
Much more recently, and in the very different settings of European air travel and the special legal regime of the Montreal Convention, the case of a passenger burned by hot coffee came before the Court of Justice of European Court (CJEU). This is a serious case and far from an EU ‘bendy banana’ style scare story: the claimant was aged six at the time of the incident in which she suffered second degree burns.
The preliminary question for the court was whether the coffee spill was an “accident” for the purposes of the Montreal Convention, given that “accident” is the trigger for engaging an air carrier’s strict liability under the Convention.
In a detailed and principled judgment last month the CJEU held that this was an “accident”, dismissing the carrier’s argument that “accident” should be understood as relating to hazards typically associated with aviation rather than, say, food or drinks service.
Unsurprisingly, claims under the Convention are a specialist technical field. My colleague Sandeep Aujla practices exclusively in the travel area and provides below her expert analysis of the case and its implications for the sector.
Alistair Kinley, Director of Policy & Government Affairs
Today is six months on from the announcement by then Lord Chancellor David Gauke on 15 July 2019, that the discount rate in England & Wales would be re-set, using new powers in the Civil Liability Act 2018, at -0.25% with effect from 5 August 2019. In the ordinary course of things this rate should apply for five years and should then be reviewed. What has or has not happened in the six months since the Lord Chancellor’s decision?