Kerry Underwood


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In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here

I am grateful to Peter Bland of Scott Rees and Co for bringing this issue to my attention.

The Montreal Convention 1999 deals, among other things, with claims arising out of injuries sustained on aircraft, and was incorporated into the law of England and Wales by the Carriage by Air Act 1961 as amended.

In two recent cases involving British Airways, District Judges have held that such claims are not covered by the portal and fixed recoverable costs schemes, and in the second case dealt with below, that decision was made by a Regional Costs Judge.

In Mead v British Airways plc, Manchester County Court, 15 January 2018, Case No. CO4MA934

the matter was resolved by the claimant accepting the defendant’s Part 36 offer, which referred to paying fixed costs under CPR 45.18.

The claimant issued Part 8 proceedings resulting in detailed assessment and a paper provisional assessment in which a judge held that Montreal Convention claims were not subject to the portal process.

At this review hearing it was agreed that the central issue was whether a Montreal Convention claim falls within the definition of public liability claims in paragraph 1.1(18) of the portal, which provides that

“public liability claim  –

  • means a claim for damages for personal injuries arising out of a breach of a statutory or common law duty of care made against—

(i)  a person other than the claimant’s employer; or

(ii) the claimant’s employer in respect of matters arising other than in the course of the claimant’s employment; but

  • does not include a claim for damages arising from a disease that the claimant is alleged to have contracted as a consequence of breach of statutory or common law duties of care, other than a physical or psychological injury caused by an accident or other single event.”

Article 17 of the Convention provides:

“Article 17—Death and Injury of Passengers—Damage to Baggage

  1. The carrier is liable for damages sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

A claimant is not required to prove fault on the part of the airline; it is a strict liability claim.

The court upheld the claimant’s submission that a Convention claim does not arise out of a breach of statutory or common law duty of care.

Thus it is not a public liability claim within the portal definition as Article 17 imposes a strict liability.

The Convention is a self-contained code and deprives the claimant of a common law claim.

It is irrelevant that but for the Convention, the facts would have given rise to a common law claim or other breach of duty claim.

The claim could not properly be put on the portal and therefore was not subject to fixed recoverable costs.

In McKendry v British Airways plc, Liverpool County Court, 16 May 2018 Case no. D06LV750

the case was also resolved by the claimant accepting the defendant’s Part 36 offer, followed by Part 8 proceedings and detailed assessment.

The point was exactly the same.

Here the judge was the Regional Costs Judge and he reviewed thoroughly the authorities and public policy issues and arrived at the same conclusion, namely that such claims are excluded from the portal process and thus are not covered by the fixed recoverable costs schemes.


Maybe British Airways will now concede this point and concentrate on getting people’s luggage to its destination.

Written by kerryunderwood

September 5, 2018 at 8:10 am

Posted in Uncategorized

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