Aviation NewsletterFebruary 2018

Contents

01.

13.

04. 08.03. 06.

10.

Russia’s accession to the Montreal Convention 1999

Mitigation of damages

Disclosure of insurance policies in insolvency cases

More liberal approach to competition assessment of rebates granted by dominant companies

Thailand’s accession to the Montreal Convention

Employment update

Fair fares - clarifications from the European Court

16.Recent developments for personal injury claims in England and Wales

20.Brexit update

Diary dateBeaumont International Aerospace Conference 11-12 July 2018 Grange St Paul’s Hotel 10 Godliman Street, London

Our 2018 programme highlights will include topics such as:

– The Aviation Insurance Market in 2018

– Brexit and the insurance market

– Geographical roundups

– Airline Insolvency

For further information or registration details please email: Elaine Middleton at events.aviation@clydeco.com

With seven new accessions in 2017 (Chad, Indonesia, Mauritius, Russia, Sudan, Thailand and Uganda), the number of parties to the Montreal Convention 1999 has grown to 130, making this key air carrier liability treaty one of the most successful instruments in the field of international air law. Among the recent signatories, Russia and Thailand (as to which see the following article) represent two significant international air transport markets which have now joined the majority of leading aviation nations participating in the Convention.

The Montreal Convention modernises the Warsaw Convention regime and revises liability limits to ensure adequate compensation of passengers in the event of carrier liability. Although the Russian Federation was an original signatory of both the Warsaw Convention 1929 and the Hague Protocol 1955, and actively participated in the development of the Montreal Convention between 1995 and 1999, no steps were taken to join the latter for a number of years.

Such an eventuality certainly remained possible, as the Montreal Convention 1999 is a so-called ‘open treaty’, allowing any state which does not sign the Convention to accept, approve or accede to it at any time, as confirmed in Art. 53(4) thereof. Russia acceded to the Convention by passing Federal Law dated 3 April 2017 No. 52-FZ “on the accession of the Russian Federation to the Convention for the Unification of Certain Rules for International Carriage by Air” (the “Accession Law”).

Russia made two fairly standard declarations in the Accession Law under Art. 57 of the Montreal Convention, to retain the right not to apply the provisions of the Convention with respect to: (a) international carriage by air performed and operated directly by the Russian Federation for non-commercial purposes relating to its functions and duties as a sovereign State; and (b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by the Russian Federation, the whole capacity of which has been reserved by or on behalf of such authorities.

The Accession Law entered into force on 15 April 2017, but for practical purposes, the accession procedure only began on 22 June 2017, when Russia deposited its instrument of ratification with ICAO, the depositary of the Convention. The Convention then entered into force in Russia on 21 August 2017 per Art. 53(7).

Russian aviation legislation is not new to accommodating international treaties. As an instrument of international law, the Warsaw Convention, as amended by the Hague Protocol, enjoys precedence under the Russian Constitution over domestic legislation governing air carrier liability (as a result of Art. 15(4) of the Russian Constitution; and confirmed in Art. 117(1) of the Russian Air Code). The Russian Air Code and Civil Code are generally aligned with these treaties. This appears to be the case not only as regards the liability regimes set out in Chapter XVII of the Russian Air Code for the carriage of passengers, baggage and cargo, but also with respect to the more general provisions on civil liability contained in Chapter 59 of the Russian Civil Code.

In some respects Russian legislation already provided greater passenger protection than that afforded by the Warsaw Convention, paving the way for the adoption of the Montreal Convention. For instance, liability of the carrier for bodily injury of passengers is unlimited, and in case of death the law provides for an automatic payment of RUB 2,000,000 (some USD 33,300). Russian law also provides for advance payments in case of death or serious bodily injury, in which case a payment of RUB 100,000 (some USD 1,500) must be made within three business days from the submission by the passenger of an application and specified supporting documents. Furthermore, detailed rules on the procedure for presenting and assessing claims are set out in Federal Law dated 14 June 2012 No. 67-FZ on the mandatory insurance of carriers’ civil liability.

Russia’s accession to the Montreal Convention 1999

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Nevertheless, following Russia’s accession to the Montreal Convention, additional changes to Russian legislation will be necessary, and indeed seem to be envisaged. We understand that a bill is currently under consideration in the State Duma, the lower house of the Russian Parliament, and envisages amendments to Arts. 105, 117, 127 and 128 of the Russian Air Code, which concern documents of carriage, carrier liability in respect of passengers, the time frame for making claims, and the commencement of the limitation period, respectively.

As the Convention only unifies certain matters, a number of aspects remain outside its scope. These are addressed in domestic law to varying degrees, and include issues such as the assessment of damages, the calculation of the limitation period, the procedural law of the forum, as well as of course rules governing domestic carriage. Assessment of damages is regulated in some detail: the overarching principles can be found in the aforementioned Federal Law dated 14 June 2012 No. 67-FZ, whilst Government Resolution dated 15 November 2012 No. 1164 sets out the percentages of the RUB 2,000,000 amount that should be awarded in respect of various bodily injuries. The value of moral damages arising out of bodily injuries is determined by the court taking into account all the circumstances of the case, and this can be in practice difficult to estimate as case law is not consistent (and rulings have no precedential effect).

Whilst Russian legislation seems generally compliant with the Convention regime, the same cannot be said for the practice of Russian courts, which do not always follow the Convention. For example, courts have in the past awarded moral damages in Warsaw Convention cases where the claimants suffered no bodily injury. Foreign Convention case law neither has legal effect nor is generally persuasive. Russian courts thus feel more inclined to apply provisions of the Russian Air Code to define processes of embarkation and disembarkation, resulting in a more narrow definition of ‘carriage’ than that under cases such as Phillips v Air New Zealand [2002] All ER (D) 431 (Mar) and Adatia v Air Canada (CA) [1992] PIQR 238.

Whilst there may not be much Russian case law or commentary on the Montreal Convention for some time, Russia’s accession to the Convention has been widely publicised. Thus it is not inconceivable that passengers, aware of the new instrument, but with no guidance on its interpretation, may view, for instance, the Art. 21 language as granting an automatic right for compensation at the level of SDR 113,000, which is of course not the case, as every claim is subject to proof of loss and its value is determined by reference to local law on the assessment of damages.

The topic was of significant interest at the 22nd annual conference of Russian Association of Aviation and Space Insurers held in Moscow between 27-29 September 2017, where many delegates agreed that carriers, brokers and insurers must work together to ensure that such misguided interpretations are reduced as far as possible. Broadly speaking, however, the Convention was viewed as a positive development that strengthens Russia’s reputation and role in international air transport markets, and has the potential of reducing the impact of conflicting domestic law that has built up over the years. In this respect it will be interesting to see whether the country’s accession to the Montreal Convention will have an impact on the development of Russian case law, and in particular whether the new instrument might change the courts’ general approach to the award of moral damages in cases where these would not be compensable under the Conventions.

Lazar VrbaskiAssociate T: +44 (0) 20 7876 6722 lazar.vrbaski@clydeco.com

For further information, please contact Lazar Vrbaski in our London office.

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As mentioned in the immediately preceding article, one of the seven States that acceded to the 1999 Montreal Convention in 2017 was Thailand, which deposited its accession to the Convention with the International Civil Aviation Organization on 4 August 2017. The Montreal Convention 1999 therefore came into force in Thailand on 2 October 2017. This is welcome (albeit somewhat surprising) news for the aviation industry. Whilst Thailand took its own legislative steps towards modernisation in 2015, this move will provide further uniformity to the regulation of international carriage by air to and from Thailand and other State Parties. This is especially relevant with the anticipated growth arising from a single aviation market among the Association of South East Asian (ASEAN) members through the ASEAN Open Skies, which was ratified by all Member States in 2016.

Although Thailand has historically been reluctant to ratify any of the international aviation Conventions, the recent accession of Thailand to the Montreal Convention 1999 may not be as remarkable as it first seems. Rather, it confirms the willingness of the Thai Government to reform and modernise its laws relating to air carriers’ liability, steps which it had earlier taken in 2015 when Thailand introduced the International Carriage by Air Act 2015 (ICAA). The ICAA in essence sets out a liability framework similar to that of the Montreal Convention 1999. When this law was introduced, claimants were no longer forced to rely on the provisions of the Thai Civil and Commercial Code for claims against air carriers. It provided the benefit to claimants of higher liability limits reflecting those of the Montreal Convention 1999 for death and/or bodily injury, baggage and cargo, which previously may only have been available as contractual limits indicated in carrier general conditions of carriage.

In addition to claimants gaining access to Thailand as a “fifth jurisdiction” for claims to be brought under Article 33 of the Montreal Convention, and the option for parties to refer the disputes to arbitration in accordance with Article 34, Thailand’s accession will also assist to eliminate differences that were present in the ICAA compared to the Convention. Furthermore, in construing claims in a local context, the Thai courts will be able to examine the interpretation of the language of the Montreal Convention 1999 against the interpretation in other jurisdictions worldwide, which will

hopefully provide a more harmonised legal framework in relation to claims in Thailand and provide greater certainty for airlines and their insurers.

It seems unlikely that specific enacting legislation will be introduced but rather the local Courts will probably rely upon the ICAA, although it remains unclear how any international claim would be addressed, as the ICAA legislation does not fully reflect the text of the Convention. That said, at a practical level, carriers should benefit from greater levels of certainty in terms of passenger rights and reduced baggage as well cargo claim litigation. In the meantime, this is a good opportunity to consider any necessary review of carrier general conditions of carriage to keep up with the amended legal framework.

Thailand’s accession to the Montreal Convention

Paul FreemanPartner +65 6544 6511 paul.freeman@clydeco.com

For further information, please contact Paul Freeman, Melissa Tang or Ashna Lazatin in our Singapore office.

Ashna LazatinAssociate +65 6544 6515 ashna.lazatin@clydeco.com

Melissa TangSenior Associate +65 6240 6132 melissa.tang@clydeco.com

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Disclosure of insurance policies in insolvency cases

The recent decision of Jefford J in Peel Port Shareholder Finance Co Ltd v Dornoch Ltd [2017] EWHC 876 (TCC) clarified the applicable regime for pre-action disclosure of insurance policies in insolvency cases. Jefford J held that the special regime for disclosure created by the Third Parties (Rights against Insurers) Act 2010 precludes the ordinary operation of pre-action disclosure through CPR 31.16(3) and insurers only have a duty to provide pre-action disclosure of insurance policies where the 2010 Act applies.

The Third Parties (Rights against Insurers) Act 2010

The 2010 Act applies to third parties who have rights against an insured declared insolvent or entering a voluntary arrangement with its creditors. It provides for the transfer of the rights of the insured against its insurer to the third party so as to enable them to benefit from the contract of insurance. It effectively allows a wronged third party to make a claim directly against an insolvent person’s insurers.

Schedule 1 to the 2010 Act permits a third party to write to the insured or directly to the insurer for information where the third party reasonably believes that the 2010 Act applies.

The 2010 Act limits the information which is disclosable to, amongst other things, whether a contract of insurance exists which covers or might reasonably be thought to cover the supposed liability. Where such a contract exists, the name of the insurer and the terms of the insurance must be disclosed. Default allows the third party to apply to the Court for its disclosure.

In the case of Re OT Computers Ltd (In Administration) [2003] Lloyd’s Rep IR 669, the Court of Appeal held that the 2010 Act’s predecessor, the Third Parties (Rights against Insurers) Act 1930, allowed for the disclosure of a contract of insurance before the establishment of the insured’s liability. This is reflected in the wording of the 2010 Act which only requires that the third party “reasonably believes” that the rights of insured have transferred under the 2010 Act. Thus, a third party may obtain pre-action disclosure of an insurance policy where the 2010 Act applies.

The decision in Peel Port

In Peel Port an application was made for the disclosure of an insurance policy under CPR 31.16(3). Peel Port owned a warehouse in Kent which was damaged by fire. Peel Port alleged that another company, EAPL, had caused the fire by flame cutting work carried out on neighbouring premises.

The claim was complicated by the fact that if the action was successful then EAPL would likely be forced into insolvency. EAPL’s insurers, Dornoch, denied that the claim by Peel Port was covered by EAPL’s insurance policy. Dornoch alleged that the work was in breach of a condition precedent contained within an endorsement.

What Peel Port makes clear is that CPR 31.16(3) cannot be used to circumvent the insolvency requirement of the 2010 Act, even where insolvency is highly likely as a result of the action.

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James NewtonTrainee Solicitor +44 (0) 20 7876 4946 james.newton@clydeco.com

For further information, please contact James Newton or David Willcox in our London office.

Peel Port made an application against Dornoch for pre-action disclosure of the full insurance policy, including the endorsement. Without being able to establish whether the contract covered EAPL, Peel Port was unable to bring its claim without risking substantial cost for a judgment against an uninsured and insolvent defendant.

Jefford J held that the special regime created by the 2010 Act precluded the operation of CPR 31.16(3). If insurance policies were obtainable under CPR 31.16(3) then the disclosure provisions of the 2010 Act were effectively made redundant. By implementing a special regime, Parliament must have considered insurance policies non-disclosable under the ordinary provisions of the Civil Procedure Rules.

Such an approach followed the case of West London Pipeline and Storage v Total UK Ltd [2008] Lloyd’s Rep IR 688, where it was held that the general approach to the disclosure of insurance policies of solvent insured defendants is that the policies are not disclosable. This is because the policies neither advance nor undermine any party’s case.

At the time that the action was brought, EAPL continued to be a solvent company. Thus, the 2010 Act did not apply and the approach of West London Pipeline was followed.

Practical effect for insurers where their insured is insolvent

The decision in Peel Port Shareholder Finance means that ordinarily insurers do not need to disclose insurance policies to third parties at the pre-action stage. However, where the insured is insolvent and the 2010 Act applies then if an insurer receives a valid request for disclosure, even at a pre-action stage, the insurer should disclose the policy. Failure to do so may result in an adverse court order and subsequent adverse costs. What Peel Port makes clear is that CPR 31.16(3) cannot be used to circumvent the insolvency requirement of the 2010 Act, even where insolvency is highly likely as a result of the action.

David WillcoxPartner +44 (0) 7876 4126 david.willcox@clydeco.com

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Employment update – is it indirect sex discrimination to include part-time cabin crew on the standby rota?

What is indirect sex discrimination?

Broadly speaking, indirect sex discrimination can occur where a workplace rule, practice or procedure is applied to all employees, but disadvantages those of a particular sex. For example, a requirement that job applicants must be six feet tall could be met by significantly fewer women than men. Where such a policy disadvantages an individual with that characteristic, it will amount to indirect discrimination unless the employer can justify it by showing that it is necessary in order for the business to work.

What happened in this case?

Qantas was a UK subsidiary of Qantas Airways (“Qantas”), which provided cabin crew to work on Qantas Airways flights from London Heathrow to Dubai, Sidney and Melbourne.

Each aircraft was required to have a set minimum number of cabin crew working on it. In order to ensure there would be sufficient cabin crew on each flight, Qantas had to have a full complement of crew available on standby. When an employee was on standby, they had to be at Heathrow Airport ready for duty within two hours of being told that they had been allocated to a flight. Historically, only full-time employees had been included on the standby rota, and part-time employees were not required to be on standby for work.

However, in 2014, Qantas experienced issues in its operations from London caused by high levels of sick leave and insufficient crew and managers available on standby. This put flights at risk and led to operational instability. Qantas found that it could not achieve the required standby crew when only full-time employees were required to be on standby.

Also, some full time cabin crew expressed concern about how unstable their lives were becoming because they were regularly included on the standby rota and did not have the same ability as part-time cabin crew to influence their working time through Qantas’s bidding system.

After a consultation process was carried out with employees and initiatives trialled, a proposal was made to include both part-time and full-time cabin crew on the standby rota in order to address these issues.

However, the claimants, who were all part-time female cabin crew, raised a grievance in which they alleged that including them in the standby rota was indirect sex discrimination. They said that as primary child-carers, including them on the standby rota gave them particular difficulties. The main concern was the possibility of a lengthy trip to Australia on two hours’ notice. They all had children of pre-school age and did not have childcare available on an ad hoc basis. They said that it was unreasonable to expect a primary carer to have childcare available for ten straight days on top of their usual scheduled childcare, ‘just in case’ they were called up for work while on standby. They put forward a number of alternative solutions which they asked to discuss, such as a reassurance that they would not be called upon for Australia trips or a limit on when they could put on the standby rota for longer trips.

The grievance was considered but Qantas decided to go ahead with the proposal to include all cabin crew on the standby rota, although full-time cabin crew would be on standby more frequently than part-time crew.

No, says a UK employment tribunal in a recent case brought by part-time Qantas cabin crew for indirect sex discrimination after their employer decided to include them on the standby rota, causing them childcare issues (Mrs A Hayes & others v Qantas Cabin Crew (UK) Limited).

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What did the tribunal decide?

The tribunal accepted that female employees were at a particular disadvantage in comparison with men when it comes to working standby as a result of the difficulties this caused them in relation to childcare. The tribunal also accepted that the claimants had actually experienced difficulties in practice, and so the indirectly discriminatory effect was made out, subject to the employer’s justification arguments.

However, the tribunal concluded that Qantas was justified in including part-time cabin crew on the standby rota because it was a proportionate means of achieving legitimate aims. The legitimate aims included achieving operational stability and sharing standby duties out fairly amongst all cabin crew where only including full-time cabin crew on the standby rota had caused issues. As a result, the tribunal found that the claimants had not been indirectly discriminated against on the ground of their sex.

The tribunal accepted that the premium long-haul market was highly competitive and that, in order to compete in that environment, Qantas had to provide a premium service to customers by having a full complement of highly trained cabin crew on each flight, which in turn required it to have a full complement of cabin crew on standby.

Key to the tribunal’s reasoning in reaching its conclusion appears to have been the fact that Qantas had put in place a variety of arrangements to help reduce the impact of standby duties on part-time employees. This included the ability for crew to bid for leave and arrange swaps (including swapping standby duties) and to take unpaid leave or carers’ leave, and these had ameliorated the effects of being on standby. Another key factor appears to have been the flexible approach that Qantas had taken to dealing with issues which arose in practice as a result of part-time employees being included on the standby rota. In every case, Qantas agreed a solution with the employee which removed the requirement to undertake a duty that was difficult for them. For example, it had allowed them to take carers’ leave even where they did not qualify for it.

The tribunal recognised that there was a careful balance to be struck between the needs of the business and the impact on part-time employees with childcare responsibilities, and this is an example of a case where the employer was able to justify having a policy that put part-time female employees at a particular disadvantage.

However, although Qantas successfully defended this claim, the employment tribunal was critical of their approach, including the fact that they did not consider whether including part-time employees on the standby rota could amount to indirect sex discrimination. Qantas was fortunate that the employment tribunal reached the decision it did and a different result may have been reached if they had not taken such a flexible approach in practice to dealing with employees who experienced childcare issues during a period of standby.

Conclusion

This case is a reminder that businesses should be alive to the potential for indirect sex discrimination claims by employees with childcare responsibilities where a provision, criterion or practice causes employees difficulties in meeting those responsibilities, and ensure they can justify having that provision, criteria or practice in place.

Nick Elwell-SuttonPartner, +44 (0) 20 7876 4940 nick.elwell-sutton@clydeco.com

For further information, please contact Nick Elwell-Sutton in our London office.

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More liberal approach to competition assessment of rebates granted by dominant companies

Article 102 TFEU prohibits the abuse of a dominant position by an undertaking occupying such a position in a substantial part of the EU. A share of 39.7% of sales to travel agents in the UK was found to confer a dominant position on British Airways in Virgin/British Airways (Commission Decision 2000/74/EC of 14 July 1999; British Airways v Commission (T-219/99, C-95/04)).

The granting of quantitative rebates, linked solely to the volume of purchases, fixed objectively and applicable to all possible purchasers – as opposed to being based on estimates made for each customer according to its presumed capacity – has been presumed not to be abusive.

Article 102 has, however, prohibited schemes involving rebates or discounts which are expressly conditional on customers buying all or most of their purchases from the dominant undertaking – whether expressed as a target or a percentage of total purchases. These are known as ‘loyalty’ or ‘fidelity’ rebates. Schemes whereby dominant airlines offer rebates in exchange for travel agents meeting minimum targets have also been condemned. Actual proof that they are capable of restricting competition has not been required (Hoffmann La-Roche v Commission 85/76, British Airways v Commission T-219/99, C-95/04).

When the European Commission fined Intel, a dominant manufacturer of central processing units, €1.06 bn in 2009, it applied this reasoning to condemn rebates offered to computer manufacturers such as Dell, Lenovo and IBM. It also carried out an assessment of whether an as efficient competitor (AEC) would have had to offer prices which would not have been viable for it, such that the scheme was capable of foreclosing such a competitor. It concluded that it would have.

Intel challenged this assessment on appeal to the General Court, which rejected the appeal on the ground that it was not necessary for it to consider whether the Commission had carried out this further assessment correctly.

On appeal by Intel against this judgment, however, the Court of Justice of the European Union has set aside the General Court’s judgment and referred the matter back for the General Court to examine Intel’s arguments in this regard.

The presumption that rebates granted by dominant companies in exchange for customers buying all or most of their requirements from the dominant company – or incentive schemes for travel agents based on minimum targets – will be an abuse, will no longer apply if the dominant company can show that the rebates are not capable of restricting competition (Intel judgment of CJEU (C-413/14 P 6/9/17).

The granting of quantitative rebates, linked solely to the volume of purchases, fixed objectively and applicable to all possible purchasers... ...has been presumed not to be abusive.

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In so doing, the CJEU has moved away from previous case law which applied an ‘inherently anticompetitive’ / per se prohibition approach, and has required that where a dominant company submits evidence that its conduct was not capable of restricting competition and, in particular, of producing the alleged foreclosure effects, the Commission is obliged to review that evidence.

If an economic analysis shows that rebates or incentives are not capable of restricting competition (eg due to short duration, market coverage of rebates, market share trends – there were for example modest increases in the market share of Virgin while the BA rebates were in place in Virgin/British Airways - efficiency of competitors, or their capacity to meet demand), the Commission (or competition authority bringing the proceedings under Article 102) must now assess that evidence. In its judgment the General Court will in due course be carrying out such an assessment, which will provide further clarity.

Going forward, dominant airlines may, therefore, benefit from seeking competition law advice before automatically concluding that they cannot offer agents rebates based on targets or percentages.

John MilliganPartner +44 (0) 20 7876 5451 john.milligan@clydeco.com

For further information please contact John Milligan in our London office, who is author of European Competition Law in the Airline Industry (Kluwer 2017).

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Fair fares - clarifications from the European Court

The BVVVB had brought an action before the Landgericht Berlin claiming that two practices of Air Berlin relating to air fares were contrary to the applicable law:

– the indication on its website of an amount in respect of taxes and charges which was higher than the amount actually payable by Air Berlin, and

– the charging of a handling fee, of 25 euros per booking and per passenger, on the amount to be reimbursed to a passenger who has not taken a flight or has cancelled the booking.

The Landgericht upheld the claims, and, following the failure of its appeal to the Kammergeicht Berlin, Air Berlin appealed to the Bundesgerichtshof, which referred two questions to the CJEU.

The laws in question

Regulation 1008/2008 consolidated, with some amendments, the previously applicable “third package” (Regulations 2407/92, 2408/92 and 2409/92). It re-enacted the basic provision in the third package liberalising air fares, providing, in Article 22, that “Community air carriers...shall freely set air fares and air rates for intra-Community air services”. It also introduced, in Article 23, some regulatory measures, intended to ensure transparency of fares and to prevent passengers being misled. These include the requirement that the final price shall at all times be indicated and shall be all-inclusive, and, in the third sentence of Article 23(1), that “In addition to the indication of the final price, at least the following shall be specified:

(a) air fare or air rate;

(b) taxes;

(c) airport charges; and

(d) other charges, surcharges or fees, such as those related to security or fuel; where [such items] have been added to the air fare or air rate.”

Also relevant in the proceedings was Paragraph 307 of the German Burgerliches Gesetzbuch (Civil Code), transposing into German law EU Directive 93/13 on unfair terms in consumer contracts, which provides that provisions in general terms and conditions are of no effect if they unreasonably disadvantage the contracting partner of the party using them, contrary to the requirements of good faith.

On 6 July 2017 the Court of Justice of the EU delivered a judgment clarifying two issues arising in connection with the provisions relating to air fares in EU Regulation 1008/2008, in the case of Air Berlin v BVVVB (the German Federal Union of Consumer Organisations and Associations).

When publishing their air fares, carriers must specify separately the amount payable in respect of taxes, charges, surcharges and fees, and may not include them, even partially, in the air fare.

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Unreasonable disadvantage is to be assumed to exist if a provision is incompatible with essential basic principles of the statutory rule from which it diverges, or if it restricts essential rights or obligations arising from the contract in such a way that achieving the purpose of the contract is jeopardised.

Indication of excessive amount of taxes and charges

Air Berlin had argued that, as the main purpose of the requirements in Article 23 of the EU Regulation is to enable customers to compare different prices offered by air carriers, only the final price is decisive, and that, if they are included wholly or partly in the final price, separate indication of the precise amount of taxes, charges etc is not required. However, the Court held that the obligation to specify taxes and charges is in addition to the obligation to indicate the final price, that the objective of information and transparency would not be achieved if carriers were to have a choice between including taxes and charges in the fare and indicating them separately, and that if they did this it would deprive the rule of all practical effect.

Air Berlin had also argued that the amount of taxes and charges is not always known at the time of booking, but the Court pointed out that most taxes and charges normally correspond to the amount the carrier is able to estimate at the time of booking, and that the obligation is to specify elements that are “foreseeable at the time of publication”.

Consequently, the Court concluded that the third sentence of Article 23(1) of Reguation 1008/2008 is to be interpreted as meaning that, when publishing their air fares, carriers must specify separately the amount payable in respect of taxes, charges, surcharges and fees, and may not include them, even partially, in the air fare.

Charging of a handling fee

On the second question, the Court was concerned not with whether the charging of a handling fee was unfair and unenforceable, as this was a question for the national court, but rather whether the provision in EU Regulation 1008/2008 giving carriers freedom to determine their air fares precludes the application of national legislation to such effect.

The Court stated that EU Directive 93/13 is a consumer protection measure of general application to all sectors of economic activity, and would only not apply in the field of air services if this were clearly provided for, which is not the case, and that the objective of the EU fares liberalisation legislation was to eliminate price controls in order to open up the sector to competition, and that the legislation recognised that it was appropriate to complement this with adequate consumer safeguards.

Air Berlin had sought support from the Court’s judgment of 18 September 2014 in a case concerning Vueling, in which the Court held that the fares freedom provisions precluded national legislation requiring carriers to include any checked baggage charges in the base price, rather than as a separate supplement. However, the Court distinguished this judgment, on the basis that it held that EU law does not preclude Member States from regulating aspects of the contract of carriage, without prejudice to consumer protection rules, and did not in any way hold that pricing freedom precludes the application of any consumer protection rule.

Consequently, the Court held that the pricing freedom provisions of Regulation 1008/2008 do not preclude application of national laws leading to a declaration of invalidity of a flat rate handling fee on reimbursement to a passenger who has not taken a flight or whose flight has been cancelled.

...the Court concluded that the third sentence of Article 23(1) of Reguation 1008/2008 is to be interpreted as meaning that, when publishing their air fares, carriers must specify separately the amount payable in respect of taxes, charges, surcharges and fees, and may not include them, even partially, in the air fare.

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Comment

This is only the third occasion on which the CJEU has had to consider the fares provisions of Regulation 1008/2008. Apart from the Vueling case mentioned above, in January 2015 the Court issued a judgment in another case concerning Air Berlin, holding that the final price must be indicated whenever prices are shown, including when shown for the first time, and that the final price must be indicated for each flight shown and not just the flight selected by the customer.

The Court’s clarifications are welcome, and should be uncontroversial. The transparency objective of the fares rules would indeed be compromised if carriers were able to specify separately taxes or charges which were not related to the actual amounts payable by them. And, as the Court said, the pricing freedom rules are intended to foster competition in air fares and not preclude the proper application of consumer protection measures, so that it would have been very surprising if the Court had held that they preclude such a measure, particularly one implementing an EU Directive on the subject.

Mark BissetPartner +44 (0) 20 7876 4854 mark.bisset@clydeco.com

For further information, please contact Mark Bisset, Tom van der Wijngaart or John Balfour.

Tom van der WijngaartLegal Director +44 (0) 20 7876 4099 thomas.vanderwijngaart@clydeco.com

John Balfour Consultant +44 (0) 20 7876 4054 john.balfour@clydeco.com

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Mitigation of damages

The case of Fulton Shipping Inc of Panama v Globalia Business Travel SAU (formerly Travelplan SAU) of Spain reached the English Supreme Court in 2016/2017. In June 2017, the Supreme Court handed down its eagerly awaited judgment.

The facts

The case involved the charterers of a vessel who redelivered the vessel to the owners two years before the charterparty was due to come to an end. This redelivery was held by the owners to be a repudiatory breach of contract and they accepted the breach as terminating the charterparty. The owners decided to sell the vessel at that point in time (October 2007), largely because there was no available charterparty market at that time. The vessel sold for US$23.7m.

The owners then claimed damages from the charterers for loss of profits during the remaining two years of the charterparty.

The arbitration

The matter went to arbitration. The questions before the sole arbitrator were:

– whether the owners of the vessel had been entitled to terminate the charterparty; and

– if so, whether the owners had to give credit for any benefit that they had received by selling the vessel.

The arbitrator found that the owners had been entitled to terminate the charterparty and that they did have to give credit. On the latter point, the arbitrator decided that the earliest date upon which the vessel could have been sold was November 2009, i.e. the end of the charterparty. If the vessel had been sold at that time, it would have been worth around US$7m, therefore the credit to be given was US$16.7m or €11.25m (i.e. the difference in value between the vessel’s sale price in October 2007 and its estimated value in November 2009). This €11.25m figure was in fact more than the owners’ claim for loss of profits.

The first appeal

The owners sought permission to appeal the arbitrator’s decision to the Queen’s Bench Division (Commercial Court) (pursuant to S.69 of the Arbitration Act 1996) on a point of law. That point of law was essentially whether the benefit of the sale could be taken into account when considering the loss of profits under the repudiated time charterparty. Permission to appeal was granted.

The appeal was argued before Popplewell J in 2014. He allowed the appeal and held in paragraph 65 of his judgment that the owners did not have to give credit for any benefit in realising the capital value of the vessel from its sale in October 2007, by reference to its capital value in November 2009, “because it was not a benefit which was legally caused by the breach”.

The owners decided to sell the vessel at that point in time (October 2007), largely because there was no available charterparty market at that time. The vessel sold for US$23.7m.

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The second appeal

The charterers appealed to the Court of Appeal. Led by Longmore LJ at the end of 2015, the Court of Appeal allowed the appeal, overturned the Commercial Court’s decision and agreed with the arbitrator that the owners did have to give credit.

The third appeal

The owners appealed to the Supreme Court in 2016. Led by Lord Clarke of Stone-Cum Ebony JSC, the Supreme Court agreed with Popplewell J and held at the end of June 2017 that credit did not have to be given by the owners.

The Commercial Court’s reasoning

As can be seen from the above brief timeline, there was a lot of toing and froing between the Courts and the ultimate decision of whether credit should be given or not. That is indicative of the difficulty surrounding this area of law, i.e. the mitigation of damages.

In the end however, it was the reasoning of Popplewell J that the Supreme Court agreed with. Popplewell J himself said in paragraph 63 of his judgment, that the “search for a single general rule which determines when a wrongdoer obtains credit for a benefit received following his breach of contract or duty is elusive”. Nevertheless, he went on to identify in paragraph 64, a number of applicable legal principles including:

– Generally speaking, it is a necessary condition that the benefit is caused by the breach.

– The test is whether the breach has caused the benefit. It is not sufficient if the breach has merely provided the occasion or context for the innocent party to obtain the benefit, or merely triggered his doing so… Nor is it sufficient merely that the benefit would not have been obtained but for the breach.

– The fact that a mitigating step, by way of action or inaction, may be a reasonable and sensible business decision with a view to reducing the impact of the breach, does not of itself render it one which is sufficiently caused by the breach.

– Where… the benefit arises from a transaction of a kind which the innocent party would have been able to undertake for his own account irrespective of the breach, that is suggestive that the breach is not sufficiently causative of the benefit.

– Considerations of justice, fairness and public policy have a role to play and may preclude a defendant from reducing his liability….

Ultimately, the owners had a choice whether or not to sell the vessel. They also had this choice during the unexpired period of the charterparty, i.e. including if that charterparty had continued. If and when they chose to sell and realise the capital value of their asset was a business decision and at their risk, and was therefore legally independent of the breach by the charterers. Therefore, the only relevant loss in issue in the arbitration / appeals before the Courts was a loss of income, not a loss of capital.

The Supreme Court’s reasoning

The Supreme Court found that the fall in the value of the vessel was irrelevant because the owners’ interest in the capital value of the vessel had nothing to do with the interest injured by the charterers’ repudiation of the charterparty. In paragraph 32 of the Supreme Court’s judgment, it is stated that “the repudiation resulted in a prospective loss of income for a period of about two years. Yet, there was nothing about the premature termination of the charterparty which made it necessary to sell the vessel, either at all or at any particular time”. Indeed, the Supreme Court points out that there was equally no obligation to sell the vessel at the end of the charterparty.

The Supreme Court found that the fall in the value of the vessel was irrelevant because the owners’ interest in the capital value of the vessel had nothing to do with the interest injured by the charterers’ repudiation of the charterparty.

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Essentially therefore, the Supreme Court stated in paragraph 34 that “the sale of the ship was not on the face of it an act of successful mitigation. If there had been an available charter market, the loss would have been the difference between the actual charterparty rate and the assumed substitute contract rate. The sale of the vessel would have been irrelevant” and “was not itself an act of mitigation because it was incapable of mitigating the loss of the income stream”.

Conclusion

As stated above, the Supreme Court therefore clarified that the owners’ act of selling the vessel was not itself an act of mitigation such that credit had to be given to the charterers for any benefit that the owners had received by selling the vessel. There had to be a legal connection between the benefit and the breach, which there was not on the facts of this case.

For now, Popplewell J’s judgment, as confirmed by the Supreme Court, provides some helpful guidance on mitigation of damages and what principles to apply when evaluating what can and cannot be taken into account.

It is also welcome that such an important legal point was appealed from an arbitration and given the highest judicial consideration.

Tina CollierSenior Associate +44 (0) 20 7876 4096 tina.collier@clydeco.com

For further information, please contact Tina Collier in our London office.

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Recent developments for personal injury claims in England and Wales

2017 saw a number of decisions that highlight an appetite for reform in the legal framework surrounding personal injury claims in England and Wales. Although in most respects these have not yet resulted in concrete changes which bind defendants, insurers will want to consider the impact of them on strategy and quantum for claims which are still at an early stage.

The changing discount rate

Where personal injury (including fatal accident) claims involve an element of future loss, the amount of damages paid by a defendant is adjusted to avoid overcompensating (or undercompensating) a claimant who receives monies as a lump sum. A discount rate is applied to adjust the award to take into account the return expected over time when this lump sum is invested. As an example, in a loss of earnings claim, a claimant might be entitled to his or her lost salary (say £20,000 per annum) for a five year period in which he or she is unable to work. If he or she receives the full £100,000 up front as a lump sum settlement, the claimant is able to invest this money and earn interest from the investment. At the end of the five year loss period, the claimant has received £100,000 (£20,000 annual salary times five years) plus the interest that has been earnt, resulting in an overall overcompensation.

To try to ensure that a damages award accurately compensates the claimant, a discount is applied to the loss period amount to produce an adjusted multiplier. The multiplier values are set out in standard form actuarial tables known as the “Ogden Tables”. Historically (since 2001), the discount rate had been set at 2.5%, which reduced the amount of the lump sum damages payment a defendant insurer had to pay at trial or settlement. However, in March 2017, the then Lord Chancellor, Elizabeth Truss, changed the discount rate to -0.75%. This was in response to concern from claimant groups that the 2.5% rate (which had been set at a time when the Bank of England base rate was around 5%) overestimated the likely return on a lump sum investment that a claimant could achieve leading to under-compensation in practice.

The effect of the March 2017 change has been to significantly drive up the value of personal injury claims for defendant insurers in England and Wales, much to the delight of claimant lawyers. However, since the decision was announced there has been a widespread view that, whilst a rate change may have been necessary in light of the change in economic circumstances since 2001, the swing to -0.75% is too severe and does not reflect the investment habits of claimants. Rather than being undercompensated, they are now overcompensated at the expense of defendants.

There is light at the end of the tunnel, however, for defendant insurers. In September 2017 the Ministry of Justice announced plans for an overhaul of the discount rate procedure following a lengthy consultation process. The central issue is whether claimants should be treated as “very risk averse” or “risk free” investors, for which a very small (or even negative) discount should be applied (as with the current -0.75% rate), or “low risk” investors, which would result in an increase in the discount rate. Draft legislation was subsequently published which proposed applying a rate based on a “low risk” return, which, if passed, could see the discount rate move to between 0% and 1%.

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Predictably, this announcement was welcomed by defendant insurers whilst claimant lawyers were rather less enthused by the proposals. The draft legislation has not yet been put before Parliament and, given the competing priorities of Brexit, there is no certainty about when the provisions will come into force. At the end of November 2017, the Justice Committee published the findings of their pre-legislative scrutiny of the proposals. Although supportive of the aims of the legislation, the Committee proposed a number of changes to the draft wording and urged the gathering of further evidence about how claimants invest their lump sum damages in practice. Whilst an initial Ministry of Justice implementation target of early 2018 is looking unlikely, there is hope that changes will be made by the end of 2018/early 2019.

What does this mean for defendants?

Although 2017 has been a year of Government flip-flopping in terms of what the discount rate should be, it is important to note that the discount rate remains for now at -0.75%. Whilst it is a matter for each insurer as to how they wish to reserve, it would seem sensible to continue to reserve at -0.75% until a new rate is set, especially for claims which are at a more advanced stage and expected to go to trial before the end of 2018.

However, September’s announcement has provided an opportunity for defendants with claims in their relative infancy. For claims which would otherwise go to trial after the end of 2018, insurers may wish to push for settlement using a discount rate in the range of 0-1%. Recent experience suggests, whilst claimant solicitors remain resistant on this point, that it has been possible to explore settlement using this range. This also accords with the view from our colleagues at the bar, who report anecdotally that judges have been willing to approve settlements calculated on this basis. Unfortunately, the prospect of delayed implementation has tempered this in recent months as claimant firms use November’s report to argue that the rate change is too remote to apply to current cases. In this respect, defendants of more complicated claims may be in a comparatively favourable position as longer hearing requirements are likely to be listed for trial further in the future due to the constraints of court diaries.

Bereavement award: Jacqueline Smith v Lancashire Teaching Hospital NHS Trust

At the end of November, the Court of Appeal handed down judgment in the case of Jacqueline Smith v Lancashire Teaching Hospital NHS Trust. The claimant, Jacqueline Smith, sought damages from the defendant NHS Trust following the death of her partner, John Bulloch, as a consequence of the admitted negligence of the NHS Trust.

Mr Bulloch and the claimant had not been married but had lived together for a period of 11 years prior to his death.

Under the Fatal Accidents Act 1976 (“FAA 1976”), the surviving spouse (or parent if the deceased is a child) can claim a statutory award (currently £12,980) for bereavement damages as part of their claim against a defendant. This is only available if the claimant and deceased were legally married or were in a civil partnership.

The claimant did not at first bring a claim for bereavement damages against the NHS Trust, since she was not entitled to this remedy at law. However, when her claim against the NHS Trust was compromised she joined the Secretary of State into the proceedings and brought an action for bereavement damages (in the then statutory amount of £11,800) or, if the court could not interpret the FAA 1976 to allow her the award, a declaration that the FAA 1976 was incompatible with Articles 8 and 14 (right to family life and freedom from discrimination respectively) of the European Convention on Human Rights.

Though the Court of Appeal declined to award the claimant damages, it did make a declaration of incompatibility under s.4 of the Human Rights Act 1998. In giving the leading judgement, Sir Terence Etherton, Master of the Rolls, said that:

“ …it is the intimacy of a stable and long term personal relationship, whose fracture due to death caused by another’s tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpartnered cohabitees.”

Although 2017 has been a year of Government flip-flopping in terms of what the discount rate should be, it is important to note that the discount rate remains for now at -0.75%.

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What does this mean for defendants?

Strictly speaking, nothing as yet. A declaration of incompatibility does not itself change the law and it will be down to Parliament to look at amending the FAA 1976 to widen the definition of those entitled to seek bereavement damages. However, it has highlighted the perceived inequality of this provision and this may provoke a legislative response from the Government over the course of 2018.

In the short term, defendants should anticipate increased pressure from claimant lawyers to allow for an award of bereavement damages in settlement offers where the claimant and deceased were cohabiting for a period in excess of two years. Whilst insurers may wish to allow this sum on a goodwill basis as part of the wider negotiation strategy, it is important to note that this remains at defendants’ discretion.

Cracking down on whiplash and holiday sickness claims

Following the General Election in June 2017, the Government has set out further plans to reform low-value whiplash and soft tissue personal injury claims procedure in the Civil Liability Bill. The reforms aim to cut down the number of minor, often exaggerated and sometimes fraudulent whiplash claims clogging up the court system. Proposed reforms include the introduction of a tariff of compensation for injuries of less than two years’ duration, a fixed recoverable costs regime, and an increase to the small claims threshold (£5,000 for whiplash and £2,000 for other personal injuries) and a ban on the making of Part 36 settlement offers prior to medical evidence.

Draft procedural reforms following the Ministry of Justice consultation on holiday sickness claims are expected in early 2018. ABTA, the Travel Association (ABTA) estimates an increase of five hundred percent since 2013 in claims for gastric illness from holidaymakers. The Solicitors Regulation Authority issued a warning notice about the rise in unmeritorious holiday sickness claims, putting claimant lawyers on notice that the unscrupulous practices of claims management companies will be a target of both the reforms and the SRA’s disciplinary powers. Holiday sickness claims are likely to be brought under the fixed recoverable costs regime proposed by Lord Justice Jackson and hopefully streamlined with the amendments necessary to the Civil Procedure Rules and protocol.

What does this mean for defendants?

In the case of both whiplash and holiday sickness claims, claimant legal costs can often run to double the claim value and vary wildly in each case. Examples cited in the Jackson Report (see further below) in respect of holiday sickness claims with claim values of £1,000-£1,500 when settled, were followed by costs claims in the region of £3,000-£6,000. The creation of fixed upper limits for both damages and costs in these types of cases will benefit defendants by introducing an element of certainty. Whiplash and soft tissue claims are often difficult to defend due to the nature of the injuries involved. The reform, in particular a proposed ban on Part 36 settlement offers prior to medical evidence, will discourage fraudulent claims. In terms of holiday sickness claims, once a date for the reforms is announced (likely April 2018), defendants may expect to see a short term spike in claims being notified prior to their entry into force.

A new “intermediate” claims track?

Together with the reforms mentioned above, Lord Justice Jackson’s supplemental report on costs proposes the creation of a new “intermediate” claims track for cases of modest complexity above the fast track up to £100,000 in value. This reform would extend the fixed costs regime (FCR) above the current £25,000 limit. Many lower value injury claims currently see claimant costs far outstripping the claim value and placing these claims into a FCR regime will be helpful to defendants and insurers, particularly when reserving for costs. However, reform will need to be streamlined with amendments to claims procedure and protocol in order for the desired effect to be realised.

Following the General Election in June 2017, the Government has set out further plans to reform low-value whiplash and soft tissue personal injury claims procedure in the Civil Liability Bill.

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What’s in store for 2018?

2018 is shaping up to be an interesting year for personal injury practitioners in England and Wales, and airlines and insurers with claims in this jurisdiction may find tactical advantages to timing the resolution of disputes around the anticipated changes highlighted above. The appointment of David Gauke, a qualified solicitor, as Lord Chancellor and Secretary of State for Justice is to be welcomed when considering the ambitious reforms underway and in consultation. Overall, 2017 has demonstrated an appetite for reform to the legislative framework for dealing with personal injury claims, but it remains to be seen with the challenges of Brexit whether these will come to fruition in the next 12 months.

Sophie AllkinsAssociate +44 (0) 20 7876 6536 sophie.allkins@clydeco.com

For more information please contact Sophie Allkins and Ruth Bailey in our London office.

Ruth BaileyAssociate +44 (0) 20 7876 6725 ruth.bailey@clydeco.com

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Brexit update

On 8 December EU leaders agreed that sufficient progress had been made on the first phase of EU/UK negotiations (principally about the financial settlement) to permit negotiations to move on to the second phase, concerned with the ongoing trading relationship, and talks on this are expected to start in March 2018.

Thus, it is still unclear what the nature of the UK/EU relationship will be in any area, and aviation is no exception. However, there are at least signs that the significance of Brexit for aviation is appreciated and that thought is being given to how to deal with it. The House of Commons Transport Select Committee has been discussing the issue, and in October it reached prominence in the press (for the first time) when the Chancellor of the Exchequer, Philip Hammond, was quoted as saying that it was theoretically conceivable that flights could be grounded if no deal was struck with the EU, and the Transport Secretary, Chris Grayling, responded by saying that such a scenario was inconceivable, as it would be of no benefit to anybody.

The Commission also issued its first written communication on the subject, on 11 December, although it simply briefly stated the legal position - essentially, that UK-licensed airlines will cease to be Community carriers, and hence cease to enjoy free and unlimited access to intra-EU air traffic under EU law, and will also cease to enjoy traffic rights under aviation agreements between the EU and other countries. Later in December, internal preparatory discussions on the future EU-UK aviation relationship commenced within the Council and with the Commission.

On 11 December also, the European Aviation Club held a conference in Brussels on the impact of Brexit on aviation, chaired by Rob Lawson of this firm. At the conference there appeared to be broad consensus that it is in the interests of business and consumers throughout the EU, and not just in the UK, for the current status quo aviation-wise to continue as far as possible, so long as the UK is prepared to accept the

obligations involved as well as enjoying the rights. While it is clear that the UK is not prepared to continue to be bound by all EU laws, there ought to be no great problem with its accepting this to a limited sectoral extent, and indeed it could hardly expect to gain access to rights without accepting the accompanying obligations. Moreover, if one considers what such obligations are, they are (in addition to granting access to Community carriers, which is self-evident) largely in the areas of consumer and environmental protection and technical standards. The UK would be unlikely to have any difficulty in continuing to accept these, and indeed would probably wish to do so in any case.

...there appeared to be broad consensus that it is in the interests of business and consumers throughout the EU, and not just in the UK, for the current status quo aviation-wise to continue as far as possible...

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If such an arrangement can be achieved politically (which is of course presently far from certain), then it ought to be relatively feasible from a technical legal point of view, by a combination, and extension, of elements found in the ECAA and Swiss aviation agreements. Two particular issues which will require careful consideration are - future legislation and the jurisdiction of the European Court. Although both raise possible difficulties, they should not be insurmountable:

– Each of the ECAA and the Swiss aviation agreement contain similar provisions on new legislation (of either party), which essentially provide for a decision on its incorporation to be taken by a Joint Committee made up of representatives of the parties (which normally acts by unanimity or mutual agreement), and the Swiss agreement even provides for the informal seeking of advice from experts of the other party during the proposal stage. Similar arrangements should not be too difficult for the UK to accept.

– Possibly more difficult, given the rhetoric about it to date (some of which is misguided), is the role that the European Court should play. In this respect the ECAA agreement and the Swiss agreement differ, but can provide guidance as to possible solutions. The ECAA Agreement provides that pre-existing rulings of the Court are binding, whereas the implications of subsequent rulings shall be determined by the Joint Committee, and that references on questions of interpretation may be made to the Court (although an ECAA party may stipulate the extent to which and modalities according to which its courts are to make such references). The Swiss agreement, on the other hand, contains no similar provisions, and in practice Swiss courts have been known not to apply CJEU rulings (such as the Sturgeon ruling re Regulation 261 - with good reason!); all it says about the CJEU is that it shall have exclusive competence on questions concerning the validity of decisions of EU institutions. While the Swiss model is unlikely to find acceptance again from the EU side, the ECAA provisions might be more acceptable to the UK, especially given the qualifying wording about references. Another possibility, which might make good sense in a broader UK/EU context, is the establishment of a new court (or chamber of the CJEU) composed of EU and UK judges (possibly with an independent chairman with casting vote) to adjudicate on any issues arising out of the UK/EU relationship.

For further information, please contact John Balfour, Mark Bisset or Tom van der Wijngaart in our London office.

As airlines in the ordinary course start to advertise or sell air services a year in advance (ie, in April 2018 for April 2019), and the two year period pursuant to the notice given under Article 50 of the Lisbon Treaty expires on 29 March 2019, aviation has a more urgent need for certainty as soon as possible than many other sectors, but at present there are no indications that any agreement will have been reached by April 2018. On 26 January the Department for Exiting the EU published an open letter proposing a two year implementation/transitional period, during which existing EU laws would continue to apply, and expressing the hope that this could be agreed by the end of March. If such agreement can be reached, which is currently uncertain given the somewhat obstructive immediate response from the Commission, then the UK would continue to be part of the single EU aviation market at least until the end of March 2021.

Mark BissetPartner +44 (0) 20 7876 4854 mark.bisset@clydeco.com

Tom van der WijngaartLegal Director +44 (0) 20 7876 4099 thomas.vanderwijngaart@clydeco.com

John Balfour Consultant +44 (0) 20 7876 4054 john.balfour@clydeco.com

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J418964 March 2018

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