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30 June 2016
Mr Justice Dingemans
Following an accident in France by a UK national on a package holiday provided for by his employer it was held that the claim was contractual in nature so was governed by Regulation 593/2008. The contract was held to be governed by English law and it was common ground between the parties that under English law no claim arose against the travel company.
The claimant’s employer had arranged an away day and team building exercise in Chamonix France. As part of the package the group undertook a number of activities one of which was climbing an ice wall on the Mer de Glace. During the course of the activity the claimant fell and injured his foot and ankle.
There were a number of issues for the court to decide. Firstly, was the claim contractual in nature and governed by Regulation 593/2008 (Rome I) or non-contractual and governed by Regulation 864/2007 (Rome II). Secondly if governed by Rome I did the terms of the contract mean that English Law applied and thirdly, whether if governed by Rome II as the company was habitually resident in France, did French law apply or was this displaced by art.4(3) because the tort was manifestly more closely connected with England.
On the first issue it was held that that the claim was contractual in nature. The court considered Ergo Insurance v If P&C C-359/14 and concluded that it was a legal obligation freely entered into by the parties and simply the fact that the liability had ensued from damage was not enough to make it non-contractual in nature. In addition it was helpful that both the English and French courts had considered the equivalent provisions in contractual terms (see Hone v Going Places Leisure Travel Ltd  EWCA Civ 947).
Secondly, the court concluded that the choice of law in the booking conditions left no room to imply that parts of the contract were to be governed by French law as the brochure covered the whole of the contract –namely payment, modification, cancellation, responsibility and performance.
As the parties had come to a number of agreed conclusions, one of which was that if English law was held to apply the claimant had no claim against the company the claim was then dismissed.
Sandra De Souza and Amy Wedgwood, Anthony Gold
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