This case was the subject of a previous blog, the Judgment of the Supreme Court handed down this morning (link and useful Summary attached) and the brief facts of which are set out again for ease of reference.

The facts in the appeal of Mr Stott

The Appellant (Mr Stott) is disabled and a permanent wheelchair user. When he travels by air he relies on his wife to assist with his personal needs because he cannot move around the aircraft cabin. He and his wife made a booking with the Respondent to fly from East Midlands Airport to Zante departing on 22 September and returning on 29 September. After making the booking the Appellant spoke to the Respondent by telephone to say that he had booked and paid to sit next to his wife on both flights. On 19 September he telephoned again and was assured that he and his wife would be seated together.

At the check-in for the return flight they were informed that they would not be sitting together. When they protested, a supervisor told them that the problem would be solved at the departure gate, but at the gate they were told that other passengers had already boarded and the seat allocated could not be changed. The Appellant was then seated in an aisle seat in front of his wife. It was very difficult for her to assist with his catheterisation and other personal needs during the flight. No assistance was forthcoming from the cabin crew. At trial, the judge granted a declaration that the Respondent had breached the Appellant’s rights under the EC Disability Regulation, but dismissed the claim for damages by reference to the limits imposed by the Montreal Convention, to which the European Union recognised and was a party. The Court of Appeal dismissed the Appellant’s appeal in relation to damages; see below the final paragraph of Lord Justice Maurice Kay below.

The Montreal Convention of 1999 (‘MC’) provides a uniform code in relation to the carrier’s liability under the contract of carriage by air. The provisions have been interpreted and found to be the exclusive code in regard to this specific liability: passengers being effective barred from seeking reliance on applicable law in their member states. Article 29 states that

‘In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention […]’

Without delving into the case law and the exclusive regime, it appears to be the general position that injury to feelings is not included within the exclusive regime of the Convention, albeit such categories of loss and injury are recognised and compensated under EC law.

EC provisions that do recognise the heads of loss in this appeal

The breaches under EC law brought by the Claimants include the Disability Regulation EC 1107/2006, incorporated into UK law by the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895), notably as regards appropriate seating arrangements. In their defence, British Airways and Thomas Cook seek to rely upon the exclusivity of the Montreal Convention as a comprehensive code, as incorporated into EU law by Regulation (EC) 889/2002.

In the hearing before the Supreme Court, constituted of Baroness Hale and Lords Neuberger, Reed, Hughes and Toulson, they considered whether the Montreal Convention can operate to exclude a claim for damages arising from a breach of EU law. This raises several important issues:

– to what extent can the well-established line of exclusivity cases (such as Sidhu) be relied upon in the case of ‘novel’ heads of claim?

– on what basis, if any, can claims under the EU’s Disability Regulation be distinguished from claims under the Passenger Rights Regulation, which have been held to fall outside the scope of the Montreal Convention?

– should the exclusivity of the Montreal Convention be determined by reference to a ‘timeline’ of events (as the Court of Appeal’s judgment seems to suggest), or by the type of damage sustained by passengers (the approach favoured by the CJEU)?

It does not appear that the case will go on a reference to the European Court of Justice in light of the core issue of effectiveness of EC law and on the facts, the fact that persons who are intended to benefit from EU laws are left without an effective remedy. Lady Hale’s shorter judgment looks like a good start for anyone wishing to explore the great lacuna that remains in existence in terms of disabled persons rights – which lacuna is in existence apparently right above our heads.

Click to access UKSC_2012_0109_PressSummary.pdf

Click to access UKSC_2012_0109_Judgment.pdf

Please find attached a link to an article on the available means for exploiting and disseminating research results. The list set out in the article includes Assignment, Licence, Joint Venture, Spin off, Consultancy, and Consortium Agreements.

Strictly speaking, Assignment and Licence (as vehicles for commercialisation and collaboration) require a party to own the Research results in the first place, however all the exploitation channels in the menu can be created by way of agreement between project parties, which makes it a very useful reminder of the list of options.

Click to access Exploitation_channels_for_public_research_results.pdf

Public consultation on the review of EU copyright rules – Protection of Rights and achieving accessibility

Click to access consultation-document_en.pdf

Please find attached a short consultation document on the EU copyright legislation. This consultation closes very soon; however it is useful in its discussion of ‘licences for Europe’ including consumer rights to access services, and online services when visiting or travelling in other member states. There is also discussion of the issue of protection of digital content, and licensing of digital works, with the accompanying issue that often in the use of technology, and accessing copyright works on the internet, several copies of the works are made by way of linking and browsing when viewing web pages – which was a subject of a previous blog in the case of Public Relations Consultants Association Ltd Case number C-360/13 – currently on appeal before the Court of Justice of the European Union (as to whether such temporary copies are invariably covered by the mandatory exception for temporary acts of reproduction) provided for in Article 5(1) of the Directive 2001/29/EC.

The Directive 2001/29/EC enables member states to implement national legislation for exceptions to facilitate non-commercial teaching – in Article 5(3)(a). Such exceptions include use by a teacher of parts of entire works to illustrate or teach as part of a course, including newspaper articles. This part of the Directive also includes the right of member states to implement exceptions for non-commercial scientific research. This is also the subject of consultation at page 25 in the attached.

There is also reference to consultation on Article 5(3)(b) of the 2001/29 Directive for persons with disability. The general aim is to further increase the accessibility of copyright works, notably increasing the number of works in special formats and further facilitating distribution. The general aim follows initiatives from the European Trusted Intermediaries Network and the Marrakesh Treaty to Facilitate Access to Published Works (by Visually Impaired Persons and Persons with Print Disabilities) concluded in Marrakesh in June 2013. The treaty creates a mandatory exception to copyright that allows organisations for the blind to produce, distribute and make available accessible format copies to visually impaired persons without the authorisation of the rights holders. The EU and member states are currently working on signature and ratification of this treaty.

Although the consultation process is soon to end, the attached contains numerous reminders that copyright and access to copyright works is still the subject of considerable activity in the EU to ensure protection of rights of creators of copyright works, whilst ensuring where possible the greatest accessibility to their enlightening content. This has been the perennial problem, one would guess, since Caxton and the printing press of Gutenberg.

Please find attached a recent Supreme Court decision regarding the powers of the Courts to intervene in disciplinary hearings for gross misconduct of a medical practitioner. The case involves a secure Hospital serving Psychiatrist, where there was insufficient evidence in the disciplinary proceedings to support wilful or deliberate breach of confidentiality – including allegations of the medical practitioner discussing patient confidential medical notes whilst on a train travelling to work, and the medical notes allegedly in public view during those discussions.

The Supreme Court appears to have upheld the injunction restraining the Trust from proceeding with the disciplinary hearing in breach of contract. The purpose of imposition of the injunction appears to include the opportunity of fresh investigation into the complaints.

The Supreme Court Judgment in Chhabra:

Click to access UKSC_2013_0046_Judgment.pdf

The Press Summary in Chhabra:

Click to access UKSC_2013_0046_PressSummary.pdf