Once the right to damages under MC99 is extinguished it cannot be resurrected by the application of a Civil Procedure Rule.
On 17 September 2006, the claimant was injured during a balloon ride organised for her 21st birthday. The balloon was operated by Michael Gabb who traded as "Heart of England Balloons". This was the trading name to which the balloon operator's representatives referred in pre-action correspondence. On 24 October 2007, "Heart of England Balloons Limited" was incorporated with Mr Gabb as a shareholder and Director of the company.
Ms Hall's claim was governed by Schedule 1 to the Carriage by Air Acts (Application of Provisions) Order 2004 ("the 2004 Order"). This applies a version of the Montreal Convention 1999 to domestic carriage by air. In particular, it provides for a limitation period of two years. This was not disputed by the parties.
In proceedings sent to Birmingham County Court, to be issued just before the limitation period expired, the defendant was named as "Heart of England Balloons Limited". This defendant argued that it could not be liable for the claimant's accident since it did not exist when the claimant suffered her accident on 17 September 2006. It therefore applied for the proceedings to be struck out.
On 13 October 2009, the claimant applied for permission to amend the Particulars of Claim to name "Mr Gabb t/a Heart of England Balloons" as defendant in place of the limited company. However, by this time the limitation period under the Montreal Convention had expired.
The Civil Procedure Rules in England and Wales provide for circumstances where an amendment to a party's statement of case or a change of name of a party may be allowed after a limitation period has expired (CPR Part 17.4(3) and CPR 19.5 refer). The questions for the Court to decide were whether:
- the claimant had brought "an action" within the meaning of Article 35 of the Montreal Convention before the expiry of the two year period; and
- the Court had jurisdiction to grant an application to amend the Particulars of Claim.
The claimant argued that the 2004 Order allowed such an amendment and that this was consistent with the construction and purpose of the Montreal Convention. The defendant's position was that the claimant's right to damages under the Montreal Convention was extinguished and that such right could not be resurrected by the application of a procedural rule.
When considering the application, the Court observed that the limitation defence under the Montreal Convention was substantive and that procedural rules cannot normally be used to remove substantive rights. In doing so, the Court concluded that the claimant's cause of action had already expired and that to allow a procedural amendment would be in conflict with the express provision of the Montreal Convention. The claimant's application was therefore refused.
This decision reinforces the effect of the limitation period under the Montreal Convention and sends a health warning to claimants who fail to exercise care when issuing proceedings, especially just before this period expires.
Catherine Hall v Heart of England Balloons Limited (Case No: 8BM10813, 17 November 2009)
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