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Looking at the Global Picture – Qatar Airways v Middle East News

In Qatar Airways v Middle East News [2020] EWHC 2975 (QB) Saini J has handed down a decision which, although not in a personal injury case, is of real interest for travel lawyers. Daniel Clarke explores the judgment and explains why.

In Qatar Airways v Middle East News [2020] EWHC 2975 (QB) Saini J has handed down a decision which, although not in a personal injury case, is of real interest for travel lawyers.

The claim arises out of the diplomatic and economic blockade imposed on Qatar in June 2017 by Saudi Arabia, the UAE, Bahrain, and Egypt. As a result of this, Qatari aircraft were only permitted to fly in and out of Qatar via permitted “air corridors”. In August 2017 the TV news channel Al Arabiya broadcast a two-minute film. It then put it on its website, YouTube, Facebook, and various social media channels.

Qatar Airways’ case was that the video made deliberately false and misleading statements, the thrust of the video being that there was a real danger that Qatari flights, lawfully passing along the permitted air corridors, might legitimately under international law, be shot or forced down, including by use of missiles. The passengers and crew might then be subject to “harsh treatment” by the blockade states when their planes were grounded.

Qatar Airways maintained that, as intended, the video discouraged many potential customers from booking or taking flights with them. This caused it losses, running into the millions, in the UK but worldwide. It issued claims in the High Court for malicious falsehood, unlawful interference with business, and conspiracy. Its case was that each of the four Defendants were part of the media group, ultimately controlled by the Saudi government, which was responsible for putting out Al Arabiya. The Defendants’ case was that the video was accurate and was the work of one journalist (based in the UAE) under the supervision of her supervising editor. No-one else (and no other entity) was involved.

Three of the Defendants were Saudi-domiciled, one based in London. This was, therefore, a case under the “common law” (as opposed to EU or Lugano) rules. The Defendants applied to strike out the claims and to set aside service. It was said that that there was no serious issue to be tried, that the claims did not pass through a gateway, that England was not the forum conveniens.

Overall, and in very large part, the court rejected this. It did accept that Qatar Airways had no real prospect of establishing that the London-based defendant had anything to do with production of the video (meaning that claim was to be struck out) and that the pleadings in malicious falsehood required amendment.

The first point of interest is the application of the “default rule” relied upon by Qatar Airways. This is the procedural rule (set out in Dicey r25(2)) that, in a case in which a foreign law applies, the court will proceed on the basis that the content of the English and foreign law is materially identical, unless it is pleaded and proved to be otherwise.

Qatar Airways’ case was that torts had been committed in several jurisdictions other than England. A “mosaic” of foreign laws might therefore apply. It had pleaded its case as if English law principles applied. The Defendants submitted that there was a formal duty to plead, and prove, the tort laws of all the world (or at least main countries relied upon) at the jurisdiction stage and that failure to do so was fatal to the claim.

This argument was rejected. The court confirmed that, as a matter of principle, Qatar Airways was permitted to rely on the “default rule” and its English-style pleading to establish a real prospect of success at the jurisdiction stage. This is significant. The “default rule” is often relied upon in personal injury cases. It is a pragmatic rule which precludes the need for parties to plead and prove foreign law (an expensive and cumbersome business) unless it makes a real difference.

The second point is the interpretation of the tort gateway. To pass through it, a claimant needs to make out a good arguable case that “damage was sustained, or will be sustained, within the jurisdiction” or that “damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction”.

The court found that the claims here did qualify. Qatar Airways had sustained damage within the jurisdiction in terms of lost bookings, leading to lost revenues. It had also sustained damage from acts committed here. The film was, in the legal definition, “published” in the jurisdiction because it was accessed and read here.

The interpretation of the gateway, especially the first limb (damage sustained in the jurisdiction) is crucial in personal injury cases. A line of first instance cases, a Supreme Court majority in Brownlie No.1 and the Court of Appeal in Brownlie No.2, have held that damage can be sustained in more than one place. It is necessary to show only that “some significant damage” has been sustained within the jurisdiction and it is not confined to the damage that completes the cause of action. This approach allows a claimant injured in an accident abroad to pass through the gateway if they can show that they sustained damage on their return to England, in the form of, for example, persisting PSLA, care costs or loss of earnings.

Some, though, have suggested a narrower interpretation, tied to the EU rules on jurisdiction in tort cases. This would effectively see a claimant’s damage sustained “once and for all” in the place where the accident happened. It would, to all intents and purposes, effectively prohibit claimants involved in accidents abroad being litigated in England at all. This was the minority view in the Supreme Court in Brownlie No.1. Here the court, significantly, adopted the first, broader interpretation.

The third point is the application of forum non conveniens. The Defendants argued that the court should exercise its discretion to decline jurisdiction in favour of the courts of the UAE (or the DIFC). The court rejected this. Interestingly, its reasoning was based, not just on the convenience for trial and what was the natural forum, but also on wider considerations. The court found that the “political situation” had created “very grave problems for the pursuit of any litigation in the UAE” by Qatar Airways. There was a “hostile environment” for Qatar Airways.

The message is that, in exercising the discretion, must consider, not just matters such as the location of witnesses, and the applicable law, but “the global picture”. Courts are understandably cautious in making findings about the operation of other legal systems. It will not be every case where such considerations come into play. But there will be cases where, in a client’s interests, it will be necessary to adduce evidence (including expert evidence) of such matters.

Qatar Airways is an interesting case in its own right. What is more, two of the issues considered here (the “default rule” and the tort gateway) are currently under consideration by the Supreme Court in Brownlie No.2 – watch this space.

Find Out More

Daniel Clarke‘s practise focuses on personal injury. He has a particular specialism in cases with an international element, including claims raising conflicts of law and jurisdictional issues. He also has experience of acting in claims in other jurisdictions including in the Privy Council and in Jersey

To find out more, contact Daniel  directly or via his Practice Management Team: Paul Barton or Mark Gardner on +44 (0)20 7353 6381 for a confidential discussion.

Legal Blog & Publications, News, Travel, Travel 21 Jan, 2021

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Daniel Clarke

Call: 2005

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