New Court of Appeal Decision – interpretation of an ‘excursion’ in terms of the ‘Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008’
In a Cost Appeal Decision, the Court of Appeal in London judged on the question of when ‘The Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008’ apply. According to Par. 5 b of these Regulations, which are based on the Directive 85/577/EEC, they apply to a contract, including a consumer credit agreement, between a consumer and a trader which is for the supply of goods or services to the consumer by a trader and which is made during an excursion organised by the trader away from his business premises. The Court of Appeal decided that a fee agreement made between solicitors and their clients in religious community premises, to which the clients were allegedly invited for informational purposes, is not a contract covered by Par. 5b, as there was no ‘excursion’. The Court’s reason for the decision was that some meaning had to be given to the word ‘excursion’ otherwise the use of both ‘visit’ (as mentioned in Par. 5 a and 5 c of the regulation) and ‘excursion’ would be otiose. The mere fact of travel (’joint enterprise’) would not constitute an excursion. The fact that the meeting was in the community hall did not convert what would otherwise be a visit to an excursion.
The Court of Appeal did not make a decision on the question of the organisation by the trader. As the existence of an excursion was denied, there would be no need to decide on that point. This decision seems inconclusively particularly considering that ‘excursion’ is translated with the term ‘organised trip’ (“organisierter Ausflug”) in the German version of the regulation.
What constitutes an “accident” under Art. 17 Montreal Convention 1999?
One of the three requirements for a carrier by air to be held liable under Art. 17 of the Montreal Convention for death and injury of passengers, is that the death or injury was caused by an accident. In case-law, the scope of the term “accident” under this provision has been defined as an “unexpected or unusual event or happening that is external to the passenger…”. It is distinguished between the bodily injury as such and the accident causing the bodily injury. An injury resulting from the passenger’s own internal reaction to the usual and normal operation of an aircraft does not constitute an accident under Art. 17 and thus excludes the carrier’s liability under the Convention. Only under special circumstances an exemption to the requirement that an injury has to be external (kursiv) to the passenger leads to the liability of the carrier.
New Court of Appeal decision – interpretation of “harmful events” under Art 5 (3) EC Regulation 44/2001
According to a very recent Court of Appeal decision from AMT’s High Court claim (the Defendant instructed ZIMMERs), it was decided that a tortfeasor, who was the Defendant, can be sued in his domestic court, where the tort or delict involves inducing a contractual party, AMT’s clients, to breach an exclusive jurisdiction clause. The ratio considered the correct interpretation of Art 5 (3) of the European Regulation 44/2001. Whereas the Claimant argued that the “harmful event” occured in England because the Claimant was deprived of the benefit of its jurisdiction clause conferring the right to conduct proceedings in England, the Defendant maintained that the location where initial claims (by AMT’s clients) were brought in breach of such a clause is decisive.
Reform of the Brussels I Regulation
The reform of the Brussels I Regulation is about to come into place on 10 January 2015 with a view of saving litigants costs and time of enforcing judgments obtained abroad. One of its major changes is the abolition of the need to obtain an additional court order in order to enforce a foreign judgment. Under the current rules of the Brussels I Regulation (on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), a judgment given in one Member State does not automatically take effect in another Member State. In order to be enforced in another country, a court in that country first had to validate the decision by registering it and declaring it enforceable. Defendants will still have the possibility to contest the judgment if for example they were not given proper notice of the proceedings.
Reclaim your taxation of inheritance in Spain
The European Court of Justice ruled on 3th of September 2014 against Spain in a case that gives non-residents the possibility to reclaim the tax they paid. While Spain's regional governments (comunidades) reduced or even eliminated the inheritance tax rate for those who lived in Spain, they collected the tax without any reduction in the case of people living mostly outside Spain in other European countries like England.
This is a very serious discrimination. Now we are able to reclaim the tax paid in the last 4 years for all the European non-residents and even for the cases before it would be possible to reclaim the amounts directly from the Spanish government.
Contact our office for more information. We will claim your rights together with our cooperation partner Schomerus in Spain.
Rights of airline passengers, EU Regulation 261/ 2004
If your flight has been cancelled at short notice or has been delayed for more than 3 hours, or the airline denies boarding because the flight is overbooked you may be able to claim compensation according to EU Regulation 261/2004. Recently it is also possible to claim where excessive delays have been caused due to an airline’s failure to plan its flights to prevent delays of other flights causing “knock on” delays.
Additional rights for lost property and injury, Montreal Convention
The Montreal Convention allows passengers to claim compensation where damage to their property was due to the fault of the airline. In the case of injury the incident must have occurred on the
aircraft or in the course of embarking or disembarking.