England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 April 2008

Mr Justice Eady :

The factual background

1. I am required to rule upon a number of preliminary issues in this litigation, for which purpose a substantial body of facts has been agreed. The proceedings were commenced on 8 August 2006.
2. The Defendant Company is Spirit of Adventure (UK) Limited, which used to run a business arranging "adventure experiences", including hot-air balloon flights offered to paying customers. The Claimant, Mr Michael Laroche, was injured on the evening of 20 August 2003 in the course of a bumpy landing.
3. The Defendant Company had a set of standard terms and conditions, in which it reserved the right to cancel flights, or reject passengers who, in the opinion of the pilot, might put the safety of the balloon or other customers at risk. The only reference to the applicability of any law was to the domestic common law of negligence. This was in the form of a disclaimer to the effect that " … we cannot accept responsibility for damage or injury, or be held liable for any loss of property, which does not result from our negligence".
4. In December 2001 the Claimant was given a voucher for a hot-air balloon flight organised by the Defendant Company. It had been purchased by a friend of his for £90.00. This stipulated that the ride would take place during the year ending 24 December 2002, but eventually it was extended until the end of the following year.
5. In due course, at about 5.30pm on 20 August 2003, the Claimant and other customers gathered at Great Fowle Farm, Laddingford, Kent, which was to be the starting point. For obvious reasons, the company was not in a position to say where the balloon would land, and the arrangement was that a driver would follow the balloon in a Land Rover fitted with a trailer, with a view to collecting the balloon from wherever it landed and returning the passengers to the start point at Laddingford.
6. The Defendant Company's representatives apparently arrived, rather late, at about 6.15pm. The assembled passengers were told by the pilot that the conditions were some of the best of the season and that they were suitable for a flight.
7. There were four passenger compartments within the wicker basket attached to the balloon. The central part of the basket was occupied by the pilot together with four large gas bottles. He advised the passengers that the balloon would travel at around 2,000-3,000 feet and that the flight would last no more than an hour. He would remain in contact with the driver of the Land Rover by mobile phone.
8. After about 35 minutes, somewhere near the North Downs, the pilot suddenly announced to the passengers that he was going to land the balloon immediately. He said that this was because the wind had picked up and he wanted to land before reaching a bank of trees at the edge of a field. The passengers were told to adopt the brace position, which they did. Unfortunately, instead of landing slowly and gently, the basket crashed into the ground with considerable force. The balloon then took off again and travelled a short distance before crashing for a second time. It dragged the basket along the ground, which was tipped onto its side for some distance, before the basket finally came to rest in a field.
9. As a result of the landing, the Claimant immediately noticed that he was suffering pain in his left ankle. Other passengers were also apparently injured. The Claimant was unable to stand up by himself and had to be helped out of the basket.
10. The driver of the Land Rover had difficulty in locating the scene of the accident and then had to obtain permission from the farmer who owned the land to drive on and collect the balloon and passengers. This led to a delay of approximately an hour before he arrived at the basket. After the balloon and its associated equipment had been picked up and placed in the trailer attached to the Land Rover, the passengers were driven back to Laddingford.
11. No explanation was given to the Claimant or to any other passenger as to why the landing had been so rough. Although they were in some distress, when they arrived at the starting point the pilot offered the passengers a glass of champagne each and a certificate to state that they had completed a balloon flight.
12. The Claimant was unable to drive after the accident and had to be driven home by a friend. He was then taken by his wife to Maidstone Hospital at about 9.45pm, where he received treatment at the Accident and Emergency Department. Following X-rays, he was told that he had sustained an undisplaced fracture to the left ankle. He remained in hospital as an in-patient and, on 24 August 2003, the fracture was stabilised using a plate and screws. He was discharged a few days later.
13. At the time of the accident the Claimant was 47 years of age and there is an agreed medical report, for the purpose of his claim, which shows that he sustained a bilmalleolar fracture of the ankle. He required surgery consisting of an open reduction and internal fixation of the ankle. He remained in plaster for six weeks and was on crutches for about six months. He was unable to return to work full time until February 2004. There was residual restriction in the movement of the ankle, deformity scarring and permanent pain. There is also a risk of further degenerative changes in the ankle. There is extensive scarring and pigmentation of the skin. The left ankle is now noticeably thicker than the right and there is loss of movement.
14. It is also accepted that the company documentation made no reference to the Warsaw Convention. For convenience, Counsel have used the term "Warsaw Convention" to embrace the following legislation governing scheduled air transport flights and, in particular, the following:

a) the Carriage by Air Act 1961

b) the Carriage by Air Acts (Application of Provisions) Order 1967, as amended

15. There is no dispute that the purpose of the balloon trip was as described by the Defendant, that of passengers "enjoying themselves". It is also acknowledged that the balloon "can only travel at the same speed and [in the] same direction as the parcel of air in which it finds itself".
16. It is agreed, for present purposes, that there existed a contract between the Claimant and the Defendant Company in respect of the balloon trip.

Events following the incident

17. It is necessary, for reasons which will become apparent, to consider briefly the course of events following the incident in August 2003. The Claimant entered into correspondence, through his solicitors, with the Defendant Company and its insurers. The insurers were represented by Maxwell Marland and Associates ("MMA"), their loss adjusters.
18. On or about 29 June 2004, the Defendant Company went into liquidation. The parties continued to negotiate, however, and appointed an agreed expert to deal with quantum. On 27 October 2004 the loss adjusters replied to the Claimant's solicitors' requests and indicated that they were not disputing liability ("I am now instructed, apparently on commercial grounds, to endeavour to obtain an amicable settlement"). Thereafter the parties cooperated as to the instruction of a joint medical expert, to which I have already referred.
19. In October 2005 (and thus more than two years after the incident), the insurers changed their position and sought to avoid liability. In particular, there were letters from the loss adjusters dated 12 October and 14 November of that year. The subject of the Warsaw Convention, and the associated legislation, was raised for the first time. Thereafter, steps were taken by the Claimant to restore the Defendant Company to the Register of Companies for the purpose of taking proceedings against it (dissolution having occurred on 8 March 2006).
20. On or about 19 May 2006, in the Chancery Division, an order was made by consent to the effect that the Defendant Company be restored to the Register for the purpose of allowing these proceedings to be brought and served. Leave was also given for an issue to be raised in the County Court as to whether the limitation period could be suspended during the period when the company had been in liquidation. That period lasted from 29 June 2004 to 19 May 2006.

The preliminary issues to be determined

21. Against that factual background, I shall now identify the preliminary issues which I am to determine:

1. Whether any claim by the Claimant against the Defendant in respect of the injuries sustained by him on 20 August 2003 is governed by the Carriage by Air Acts (Application of Provisions) Order 1967 ("the Non-International Rules").

2. If the answer to Issue 1 above is "yes", whether the Non-International Rules provide the exclusive cause of action and sole remedy available to the Claimant against the Defendant in respect of injuries sustained by him on that date.

3 If the answer to Issue 2 above is "yes", whether the Claimant brought an action against the Defendant within the two-year prescription period provided for by Article 29 of the Non-International Rules.

4. If the answer to Issue 3 above is "no":

(1) Whether section 651 of the Companies Act 1985 gives the Court any power to direct that time may not count for the purposes of Article 29 of the Non-International Rules;

(2) If the answer to Issue (4)(1)(a) above is "yes", whether that power:

(a) is limited to directing that time does not count for the period between the date of the dissolution of the company and the making of the order; or

(b) extends to directing that time does not count for the period from the date of the commencement of the liquidation; and

(3) If the answers to Issue 4(1)(a) and (2)(b) above is "yes", whether that power should be exercised on the facts of this case.

5. Whether the Defendant is estopped from and/or has waived any right it might otherwise have to rely upon Article 29 of the Non-International Rules in answer to the Claimant's claim.

The legislation governing carriage by air

22. It is necessary to consider the legislation which is applicable within this jurisdiction to the carriage of persons by aircraft.
23. It is provided by the Carriage by Air Act 1961, so far as international carriage is concerned, that the Warsaw Convention of 1929 has the force of law (as amended by the Warsaw-Hague Convention in 1955 and also by Protocol No 4 of Montreal in 1975). This applies to all carriage of persons, baggage and cargo by aircraft. On the facts of the present case these provisions relating to international carriage have no direct application. The relevant flight took place only within England. It is thus necessary to consider the effect of the Carriage by Air Act (Application of Provisions) Order 1967 ("the 1967 Order"). This contains in its Schedule 1 what are called "the Non-International Rules". These have application to "all carriage by air" (emphasis added) not being carriage to which the Warsaw Convention, as amended, has application. In fact, the Non-International Rules replicate the Warsaw Convention subject to certain exceptions. It has thus been held that they should be construed in a similar way to the corresponding provisions in the Convention: Fellowes v. Clyde Helicopters Limited [1997] AC 534, 552A-E.

The applicable principles of construction

24. It follows that it is necessary to apply the following principles when construing the Non-International Rules:

i) The starting point is to consider the natural meaning of the language of the article itself.

ii) It is necessary to consider the Convention as a whole and give it a purposive interpretation.

iii) The language of an international convention should be interpreted "unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation".

iv) It is legitimate to have regard to the travaux préparatoires or legislative history in order to resolve ambiguities or obscurities in the enacting words, but only where the material is publicly available and clearly points to a definite legislative intention.

v) It is legitimate to have regard to any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.

vi) Assistance can be sought from the relevant jurisprudence of this country and of other jurisdictions, and respect should be paid to relevant decisions of courts of other signatories to the Convention, particularly those of high standing.

25. In support of these canons of construction my attention was drawn to Fothergill v. Monarch Airlines Limited [1981] AC 251; Sidhu v. British Airways Plc [1997] AC 430; Morris v. KLM Royal Dutch Airlines [2002] 2 AC 628; and Re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495.

The public policy considerations underlying the Warsaw Convention

26. It is also clear from the authorities that the Warsaw Convention is regarded as having a twofold purpose founded in public policy. First, it was to provide a uniform and exclusive international code relating to the liability of air carriers in respect of claims arising out of international carriage by air, and which could be applied in the courts of all signatories without reference to domestic law. Secondly, it was intended to set out the limits of liability and the conditions under which claims to establish liability (if disputed) were to be made. The objective was to strike a balance in the interests of certainty and uniformity.
27. In the words of Lord Hope in Sidhu at p. 453C-D:

"The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code, which could be applied by the courts of all the high contracting parties without reference to the rules of their own domestic law. The Convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas with which it deals – and the liability of the carrier is one of them – the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law."

See also e.g. Morris at [12]-[15] and [65]-[66]; and Deep Vein Thrombosis at [3] per Lord Scott and [60]-[62] per Lord Mance.

28. It would follow, in the light of these public policy considerations, that where a claim is governed by the Warsaw Convention it provides the only cause of action and remedy against the carrier. One looks exclusively to the Convention and, if it affords no remedy, there is no remedy available at all.
29. Because the Non-International Rules are to be approached in the same way as the Convention itself, it would seem to follow that there will also be exclusivity in respect of claims to which they apply. It is submitted on behalf the Defendant Company that the Non-International Rules do apply to the case now before the Court and that they apply exclusively. I shall return to this point shortly.

The relevant provisions of the 1967 Order

30. There are certain provisions of the Non-International Rules which need to be considered. Article 1 provides:

"The Schedule applies to all carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking."

31. Article 17 is in these terms:

"The carrier is liable for damage sustained in the event of a death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

32. It is provided by Article 24(1) as follows:

"In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits of liability set out in this Schedule without prejudice to the question as to who are the persons who have the right to bring the suit and what are their respective rights."

33. It is thus necessary to consider whether it can properly be said that the flight on 20 August 2003 involved the "carriage of a passenger" within the meaning of Article 24(1), whether it was "for reward" within the meaning of Article 1, and whether there was carriage by an "aircraft" within the meaning of Article 1.

Was the balloon an "aircraft"?

34. I shall turn first to consider the issue of whether the hot-air balloon should be categorised as an "aircraft". Although there is no direct authority on this question in English case law or in that of any of the signatories, it can be addressed as a matter of principle.
35. In the case of Disley v. Levine [2002] 1 WLR 785, the Court of Appeal was considering a tandem paraglider in the context of the Non-International Rules and held that it was not an "aircraft". A distinction was drawn between air transport and recreation. Ms Disley was being carried not for the purpose of transport but for the purpose of instructing her in the operation of a paraglider for purposes of recreation. Although Mr Masters has focused upon this distinction, and sought to draw a parallel in the present case, it is important to analyse the nature of the activity being carried on. While it is true that Mr Laroche was being carried for purposes of leisure on 20 August 2003, that does not in itself mean that he was not being carried as a passenger or that he was not being carried in an "aircraft". People very often fly in aeroplanes or helicopters for leisure purposes. The important distinction being drawn in the Disley case related to the use to which the particular piece of equipment was put.
36. Mr Lawson, for the Defendant, calls attention to the fact that paragliders are exempt from the regulatory controls imposed upon commercial aircraft which are used for public transport by the Air Navigation Order 2000. One does not require an air operator's certificate or a certificate of airworthiness. Moreover, when it comes to giving a purposive construction to the Warsaw Convention or to the 1967 Order, it would be unreal to conclude that anyone would have had in mind a paraglider as a potential means of international air transport.
37. By contrast, a hot-air balloon such as that used by the Defendant is designed to be used for carrying passengers. As I have already recorded, it is agreed that there were compartments within the basket for accommodating those carried.
38. Moreover, the Air Navigation Order 2000 classifies a balloon as a lighter than air non-power driven aircraft (whereas gliders are classified as heavier than air non-power driven aircraft): see Article 129(4) and Schedule 2.
39. It is also provided in Articles 129(1) and 130 that (subject to certain irrelevant exceptions) an aircraft flies for the purposes of public transport if a valuable consideration is given or promised for the carriage of passengers in the aircraft. Although there can be no doubt that Article 129 refers expressly to balloons, there is no question of an exemption for them when used for public transport purposes from certain requirements, such as the need to be registered and to be flown in accordance with an air operator's certificate granted to the operator. There also has to be a valid certificate of airworthiness.
40. Against this legislative background, I can see no logical basis for excluding a hot-air balloon from the classification of "aircraft".

Was there "carriage of a passenger"?

41. The Claimant was undoubtedly being carried in the balloon at the material time and was not himself making any contribution to the process of flying. He was not a pilot or a co-pilot.
42. If any authority were needed in support of this proposition, reference can be made to the decision of the House of Lords in Fellowes (cited above). It concerned a helicopter let on what was effectively a time charter for the use of the Strathclyde police. The relevant person (Mr Herd) was a police officer being carried on the aircraft. It was there said at p.542:

"In my view it is clear that the respondents were the carrier in respect of the carriage of Sergeant Herd. It is true that Sergeant Herd was on the aircraft for the purpose of carrying out his duties as a member of the Police Helicopter Unit, but from the facts as alleged, which I have quoted above, it is clear that he had no responsibility whatever in respect of the operation of the aircraft, which was solely under the control of the pilot, and therefore in my opinion the activities which Sergeant Herd was carrying on while on the aircraft are not to be regarded as contributing in any way to the carriage of himself or the other passengers on board. He therefore is properly regarded as a passenger."

43. One argument raised on behalf of the Claimant is that the flight in question could not fall within the Non-International Rules because there was no fixed destination or route. That was also true in the Fellowes case: see e.g. at p.548C-D, p.551G-H and p.553E-G. The helicopter was simply used to go wherever required for police purposes. Also, as was pointed out in the course of argument, people used to fly in Concorde on round trips purely for the pleasure of the flight without seeking to reach another destination. So too here, Mr Laroche just went for the ride, and the destination was to a large extent unpredictable and also immaterial.

Was there carriage "for reward"?

44. Nor can I see any reasonable basis for concluding that the flight in question was not carried out "for reward". Mr Laroche was redeeming, albeit after considerable delay, a voucher purchased by a friend at the price of £90.00. I have already recorded that it is an agreed fact, for present purposes, that there existed a contract between Mr Laroche and the Defendant Company in respect of the balloon trip. There is no requirement in the Non-International Rules that the contract has to be in any particular form.

My conclusion on the application of the 1967 Order

45. In the result, I have decided that the carriage by the Defendant of Mr Laroche on 20 August 2003 fell within the meaning of the Non-International Rules. It is difficult to see why it should be excluded, having regard to the fact, to which I have already drawn attention, that it is provided in Article 3 of the 1967 Order that the Rules apply to all carriage by air (not being carriage to which the Warsaw Convention applied). As Lord Hope noted in Sidhu, in the context of the Convention:

"The word 'all' is important, simply because it is so all embracing. It indicates that the framers of the Convention were looking to solutions … which could be regarded as acceptable for universal application in all cases."

The prescription period under Article 29

46. One of the relevant conditions contained in the Rules is to be found in Article 29, which provides for a two-year period within which any claim must be brought. In the absence of a claim brought within the relevant period, the right of action is "extinguished". This would suggest, as Mr Lawson submits, that there is a substantive bar. This is supported by the analysis of Lord Wilberforce in the context of the Hague Rules in Aries Tanker Corporation v. Total Transport Ltd [1997] 1 WLR 185, 188C-E:

"The contract contemplates the possibility of a cross-claim by the charterers in respect of loss or damage to the cargo and it expressly provides by incorporation of article III, r.6 of the Hague Rules that the carrier and the ship shall be discharged unless suit is brought within one year after the date of delivery or the date when delivery should have been made. This amounts to a time bar created by contract. But, and I do not think that sufficient recognition to this has been given in the courts below, it is a time bar of a special kind, viz., one which extinguishes the claim (cf. article 29 of the Warsaw Convention 1929) not one which, as most English statutes of limitation (e.g. the Limitation Act 1939, the Maritime Conventions Act 1911), and some international conventions (e.g. the Brussels Convention on Collisions 1910, article 7) do, bars the remedy while leaving the claim itself in existence."

47. Importantly, Article 29 makes no provision for suspension, interruption or extension so far as the two-year period is concerned. One also looks in vain for any such power elsewhere in either in the Rules or in the Warsaw Convention itself.

The limited role for the lex fori

48. It is true that Article 29(2) stipulates that the method of calculating the period of limitation shall be determined by the law of the court seised of the case, but this is very limited in effect. It is suggested, for example, by the learned editors of Shawcross and Beaumont, Air Law, at para. 447 of division VII, that this provision merely leaves to the lex fori "such questions as whether a year means 12 calendar months or 365 days, or whether parts of a day are disregarded and precisely what procedure steps are to be regarded as bringing the action". It would not be wide enough to embrace a discretion on the part of the domestic court to apply a different prescription period or to exercise a discretion in favour of suspension, interruption or extension.
49. In this context my attention was drawn by Mr Lawson to the travaux préparatoires to the Warsaw Convention. In particular, there was an Italian proposal that the draft wording be altered to make it clear that after two years any action would die and be no longer admissible. For reasons of public policy this draft was accepted following discussion, and the terms of Article 29 were adopted in the form in which it now stands. The intention of the participants seems to have been to give the lex fori the responsibility for determining "the moment when the action begins".
50. A discretion of the kind proposed by Mr Masters would, in my judgment, run counter to the fundamental purpose underlying the adoption of the Warsaw Convention of achieving uniformity and certainty. Furthermore, it is provided by s.39 of the Limitation Act 1980 that none of its provisions (obviously including s.33) have any application where a period of limitation is prescribed by or under any other enactment. This would appear to accord priority to Article 29.
51. As I have said, it is appropriate to turn for guidance, where required, to judicial decisions from the jurisdictions of other signatories to the Convention. It is helpful to refer to a passage in Shawcross & Beaumont, which notes (at para. 449 of division VII) that the narrow interpretation of Article 29(2) is supported by the majority of decisions in the United States and (at paras. 450-460) by rulings in Argentina, Belgium, Benin, Canada, Germany, India, Israel, Italy, Luxembourg, Madagascar, Malta, Nigeria, Portugal, South Australia, Spain and Switzerland. A different (and very much a minority) view has been taken by the Cour de Cassation in France: see e.g. Lorans v. Air France 1977 D 89, (1977) 31 RFDA 268. This is useful background but, in arriving at a decision in the English context, it seems to me especially important to give weight to s.39 of the 1980 Act.

The Claimant's reliance on s.651 of the Companies Act 1985

52. I must address a further argument raised on the Claimant's behalf to the effect that there is scope for suspending, interrupting or extending the prescription period of two years laid down by Article 29.
53. Reference was made to s.651 of the Companies Act 1985 which contains the power of the court to declare the dissolution of a company void, on application by the liquidator or "by any other person appearing to the court to be interested". If such an order is made, such proceedings may be taken as might have been taken if the company had not been dissolved. As acknowledged in s.651(6), the court has a power, on making such an order, to direct that the period between the dissolution of the company and the making of the order shall not count for the purposes of "any enactment as to the time within which proceedings must be brought".
54. As Mr Lawson pointed out, the power to make such a direction cannot be exercised after the primary limitation or prescription period has expired unless (a) the primary limitation provisions contain a power to extend time and (b) an application under the primary legislation would be bound to succeed: Smith v. White Knight Laundry Ltd [2002] 1 WLR 616, 631 at [60]. Since the Non-International Rules do not provide for any power to extend time, no such direction could be made.
55. Moreover, the date of the Defendant's dissolution was 8 March 2006, by which time the Article 29 prescription period had expired. That is important because there is no power to direct that any period of time prior to dissolution shall not count.

Further discussion on exclusivity

56. I turn now to deal more fully with the argument on exclusivity. I have already referred to the original objectives underlying the Warsaw Convention. These included the achievement of uniformity and certainty among the signatory nations, and it also clear from the authorities that these policy considerations are closely linked to the need for exclusivity. "The Warsaw Convention is an exclusive code of limited liability of carriers to passengers": Morris v. KLM, cited above, at [15], per Lord Steyn.
57. The rationale is explained in the speech of Lord Hope in Sidhu v. British Airways Plc [1997] AC 430. Having identified the question in the appeal (at p. 435A) as whether the Warsaw Convention provides the exclusive cause of action and sole remedy for a passenger who claims against the carrier for loss, injury and damage sustained in the course of, or arising out of, international carriage by air, he went on to give the answer and, in particular, at pp. 447D-448C he addressed the underlying policy in these terms:

"The intention seems to be to provide a secure regime, within which the restriction on the carrier's freedom of contract is to operate. Benefits are given to the passenger in return, but only in clearly defined circumstances to which the limits of liability set out by the Convention are to apply. To permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier. Thus the purpose is to ensure that, in all questions relating to the carrier's liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action. The carrier does not need to make provision for the risk of being subjected to such remedies, because the whole matter is regulated by the Convention."

58. Lord Hope observed in Morris v. KLM Royal Dutch Airlines [2002] 2 AC 628, 654 at [66]:

"From the point of view of the passenger or the owner of baggage or cargo, the imposition of liability without proof of fault on the carrier and the nullification of provisions relieving him of liability or restricting the amount of his liability are very significant advantages. From the point of view of the carrier too, however, there are significant advantages in the system laid down by the Convention. A principal consequence of that system is the exposure of the carrier to liabilities without the freedom to contract out of them. But it defines those situations in which the compensation is to be available, and it sets out the limits of liability and the conditions under which claims to established liability, if disputed, are to be made. A balance has been struck between these competing interests, in the interests of certainty and uniformity."

59. Where a claim falls within the scope of the Non-International Rules, the same principle of exclusivity would apply. It was made clear, again by Lord Hope, in Fellowes v. Clyde Helicopters Ltd [1997] AC 534, 547F-G, that if the 1967 Order applies, the provisions contained in Schedule 1 provide the exclusive cause of action and sole remedy.
60. I am driven to the conclusion, therefore, that the Non-International Rules apply to the case of Mr Laroche and, what is more, that they do so exclusively so as to oust any possible remedy based on negligence at common law.

Council Regulation (EC) No 2027/97

61. One argument raised by Mr Masters was to the effect that the provisions of the Warsaw Convention do not apply in this case because Council Regulation (EC) No 2027/97 on air carrier liability in the event of accident requires, by its Article 6(2), that adequate information should be available and, in particular, the ticket document shall contain a summary of the requirements in plain and intelligible language. It is accepted that there was no such notification in the present case.
62. Mr Masters contends, therefore, that it is not open to the Defendant to avail itself of the time restrictions imposed under Article 29 of the Warsaw Convention. The regulation was considered by Nelson J in Re Deep Vein Thrombosis and Air Travel Group Litigation [2003] 1 All ER 935, 977-980, where he said at [220]:

"The argument that this regulation provides an alternative cause of action to the Warsaw Convention or that it in some manner excludes the operation of art 29 of the Warsaw Convention is contrary to the proper reading of the whole of the regulation and, in my view, unsustainable."

63. It is also to be noted that the regulation applies only to "Community air carriers". This Defendant cannot be so categorised.
64. In this context it is necessary to have regard to Council Regulation (EEC) No 2047/92 on the licensing of air carriers. It is clear from Article 1 that the regulation is concerned with the requirements for granting and maintaining operating licences by member states in relation to air carriers established in the Community. It is provided, however, by Article 1(2) as follows:

"The carriage by air of passengers, mail and/or cargo, performed by non-power driven aircraft and/or ultra-light power driven aircraft, as well as local flights not involving carriage between different airports, are not subject to this Regulation. In respect of these operations, national law concerning operation licences, if any, and Community and national law concerning the air operator's certificate (AOC) shall apply."

Since the Court is here concerned with an instance of carriage by air performed by a non-power driven aircraft, and since the flight did not involve carriage between different airports, it is doubly clear that Regulation 2027/97 has no application to the circumstances.

The arguments on estoppel and waiver

65. I must now address a further argument raised on the Claimant's behalf and based on estoppel or waiver. It is pleaded in these terms at paragraphs 6-7 of the Reply:

"6. The Claimant says that the Defendant Company and/or MMA and/or the insurers at all material times purported to represent and/or deal with the claim as if it was a claim in negligence and/or breach of contract and/or that a 3 year limitation period applied.

7. It is submitted that the Defendant Company and/or MMA and/or the insurers are thereby now estopped either by representation and/or convention from denying that the claim is one which can and is brought in negligence/breach of contract and to which a 3 year limitation period applies."

There then follow some particulars identifying certain letters in correspondence.

66. It is important to have in mind that the Non-International Rules apply by operation of law. As is already clear, the Warsaw Convention and also these Rules are intended to achieve uniformity, certainty and exclusivity. It would follow, therefore, as a matter of principle that their application cannot be ousted by reference to domestic law or rules of evidence. Furthermore, in the light of the provisions of Article 29, any right of action on the part of Mr Laroche was extinguished with effect from 20 August 2005. It is not possible for it to be revived at all, and certainly not by reference to English rules of estoppel or waiver. They are not capable of giving rise to a cause of action.
67. Although it was strictly unnecessary for him to do so, Mr Lawson went on to address the merits of these arguments in the light of the particular facts of the case.
68. As to estoppel by representation, the position is conveniently summarised in Halsbury's Laws of England, Vol. 16(2) at 957:

"Where a person has by words or conduct made to another a clear and unequivocal representation of fact, either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself that another would, as a reasonable person, understand that a certain representation of fact was intended to be acted upon, and the other person has acted upon such representation and thereby altered his position, an estoppel arises against the party who made the representation, and he is not allowed to aver that the fact is otherwise than he represented it to be.

The conduct relied upon as amounting to a representation may be negligence. This can give rise to an estoppel only where there is a duty to the person complaining to use due care; and it is further necessary that the negligence should be in the transaction itself which is in dispute, calculated to lead, and in fact leading, as its 'real' cause, to the belief created."

69. It is important to recall the words of Lord Tomlin in Greenwood v. Martins Bank Ltd [1933] AC 51, 57:

"Mere silence cannot amount to a representation, but when there is a duty to disclose deliberate silence may become significant and amount to a representation."

70. It is true that a representation may be regarded by the law as a representation of fact notwithstanding that it includes a matter of law. On the other hand, if facts are accurately stated, but accompanied by an erroneous inference of law, this will not give rise to an estoppel as to the correctness of the legal inference: see e.g. Morgan v. Couchman (1853) 14 CB 100. It would seem to follow that if, in the course of negotiations, one party's adviser reveals to the other's legal adviser that he thinks the facts (known to both parties) give rise to a potential obligation or liability, he would not be estopped later from taking a different stance on liability. It is also obvious that, where both parties are represented by lawyers, there would be no duty on either of them to proffer legal advice to the other.
71. I turn now to the alternative case based on estoppel by convention. The general principle is summarised in Halsbury's Laws of England, Vol. 16(2), at 1065:

"Where two parties act, or negotiate, or operate a contract, each to the knowledge of the other on the basis of a particular belief, assumption or agreement (for example about a state of fact or of law, or about the interpretation of a contract), they are bound by that belief, assumption or agreement. This is known as 'estoppel by convention', the common assumption or agreement between the parties (the 'convention') constituting the representation. There can be no estoppel by convention where, although both parties are labouring under a common mistaken apprehension, it cannot be said that they have acted on the basis of that apprehension. Nor can the doctrine be invoked to deny a party the protection of a statute from the terms of which contracting out is not possible. In order for an estoppel by convention to arise, the relevant assumption or agreement must be communicated by one party to the other, either by words or conduct.

Estoppel by convention is not confined to an agreed assumption as to fact, but may be as to law; and the court will give effect to the agreed assumption only if it would be unconscionable not to do so. Once a common assumption is revealed to be erroneous, the estoppel will not apply to future dealings … "

It is already quite apparent that it is not open to a carrier and passenger to contract out of the exclusive regime imposed by the Warsaw Convention, or by the Non-International Rules, where they would otherwise be applicable. It is thus relevant to have regard to the decision of the Court of Appeal in Keen v. Holland [1984] 1 All ER 75.

72. In that case, the defendant knew throughout that the plaintiffs were unwilling to grant a tenancy that would attract the protection of the Agricultural Holdings Act 1948, and both parties believed that the tenancies granted effectively produced that result. Nevertheless, it was held that the defendant was not estopped from invoking the protection of the Act, since the terms of s.2(1) were mandatory, once the factual situation contemplated came into existence, and could not be overridden by an estoppel. As Oliver LJ observed at p. 82:

"The terms of s.2(1) are mandatory once the factual situation therein described exists, as it does here, and it cannot, as we think, be overridden by an estoppel even assuming that otherwise conditions for an estoppel exist … We agree with the judge that, having regard to the purpose of the 1948 Act, it cannot be said to be unconscionable for the tenant who is protected by it to rely on the protection which the statute specifically confers on him. Once the protection attaches, the jurisdiction to grant possession is exercisable only subject to the statutory provisions and it is a little difficult to see how the parties can, by estoppel, confer on the court a jurisdiction which they could not confer by express agreement."

73. Likewise here, it seems clear that just as the parties could not exclude the regime contained in the Non-International Rules, so too they could not be permitted to do so by estoppel. This doctrine does not provide a route whereby the Claimant can bring an action in negligence or breach of contract; nor could it enable him to import a three-year limitation period which would otherwise not apply.
74. In any event, there is no positive representation made by or on behalf of the Defendant either as to an entitlement to sue in negligence, or breach of contract, or to rely upon an extended limitation period. Nor, it follows, could the Claimant demonstrate any reliance to his detriment upon such a statement. Furthermore, there is no evidence of the parties' representatives having proceeded on the basis of any common assumption or agreement which had been communicated between them.
75. Waiver does not avail Mr Laroche either since, once again, the doctrine would hardly be compatible with the fact that the Non-International Rules are applicable as a matter of law.

My answers to the preliminary issues

76. My answers to the questions posed by way of the preliminary issues identified above at [21] are as follows:

1. Yes.

2. Yes.

3. No.

4. (1) No

(2) N/A

(3) N/A

5. No.

The final outcome

77. Unfortunately, I have come to the conclusion that Mr Laroche was confined to pursuing a remedy against this Defendant by reference to the Non-International Rules, and that this avenue is closed to him because the prescribed two-year period lapsed in August 2005. It is apt in those circumstances (although it offers no comfort, I am afraid, to Mr Laroche) to cite the explanation given by Lord Hope in Sidhu at p. 453D-G:

"An answer to the question which leaves claimants without a remedy is not at first sight attractive. It is tempting to give way to the argument that where there is a wrong there must be a remedy. That indeed is the foundation upon which much of our own common law has been built up. The broad principles which provide the foundation for the law of delict in Scotland and of torts in the English common law have been developed upon these lines. No system of law can attempt to compensate persons for all losses in whatever circumstances. But the assumption is that, where a breach of duty has caused loss, a remedy in damages ought to be available.

Alongside these principles, however, there lies another great principle, which is that of freedom of contract. Any person is free, unless restrained by statute, to enter into a contract with another on the basis that his liability in damages is excluded or limited if he is in breach of contract. Exclusion and limitation clauses are a common feature of commercial contracts, and contracts of carriage are no exception. It is against that background, rather than a desire to provide remedies to enable all losses to be compensated, that the Convention must be judged. It was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available. So it set out the limits of liability and the conditions under which claims to establish that liability, if disputed, were to be made. A balance was struck, in the interests of certainty and uniformity."

78. It will no doubt be considered whether the Claimant has a remedy against those advising him prior to August 2005, but that is not a matter before the Court today.