Sarah Robson Barrister
The Portal does not apply to Montreal Convention Claims
McKendry v British Airways Plc
DJ Baldwin (sitting as Regional Costs Judge)
Liverpool County Court, 16th May 2018
Here the Claimant sent a Letter Before Action, claiming under the Montreal Convention. The Defendant replied admitting liability, but requested that the matter proceeded under the Portal Protocol. The Claimant declined, noting that they were not claiming a breach of duty, so the Portal did not apply. Parties later settled damages without the need for proceedings, but costs could not be agreed. Part 8 costs only proceedings were commenced with the central dispute concerning whether fixed costs applied or not.
Article 29 of the Montreal Convention gives exclusivity for the convention to apply, and so there can be no question of common law torts applying either instead or as well. Liability under Article 17 arises not from any 'notional' breach of duty, but rather by international agreement. The convention is a stand-alone code, much like the Portal itself. The new Package Travel Protocol specifically excludes both the Athens Convention and the Montreal Convention from its scope, which supports the view that claims under the Montreal Convention should not be brought in the Portal.
This case, together with the similar case of Mead v British Airways, makes it clear that claims brought under the Montreal Convention are strict liability claims. Liability arises not from any duty of care but is a strict liability arising from international agreement. Claims brought in the Portal require a duty and breach. Admitting liability in the Portal also admits that the defendant has no accrued defence under the Limitation Act 1980, and the Limitation Act does not apply to Montreal Convention claims.
It is perhaps slightly surprising that a whole raft of claims is excluded from the Portal Protocols without being specified. However, on a quick drilling down into the nature of Montreal Convention claims and the exclusivity provided therein, it is clear this approach must be right. Whilst neither case is binding, there is a lot of sense to these decisions. They are supported by the fact the new Package Travel Protocol specifically excludes such claims. There would also be inherent difficulties in international travel cases over whether the accident occurred within England & Wales.