Stewarts’ International Injury department supported the APIL International Injuries conference in London at the end of 2023. Partners Chris Deacon and Julian Chamberlayne spoke at the event, with associates Rebecca Huxford and James Griffin attending as delegates.
Opening the conference in his capacity as coordinator of the APIL International Special Interest Group, Chris spoke about the importance of ensuring access to justice in cross-border cases. He noted that the conference programme gave a snapshot of some of the challenges international injury victims and cross-border practitioners face. Chris set out how those specialising in international injury have a vital role in securing access to justice for individuals when they are at their most vulnerable, saying: “Not a year goes by when there is not yet another challenge to navigate in this practice area, be that ensuring our clients are able to seek effective redress in the UK or overseas following serious injury or in empowering our clients to take on the Goliaths of this world, be they insurance companies, tour operators, sporting organisations and federations or other well-resourced defendants.”
Chris commented on the UK government’s 2023 consultation on reforms to the Package Travel Regulations. He noted that one of the proposals suggests setting the level of protection afforded to consumers based on the price they pay for the package holiday. On this, Chris said: “APIL is preparing a robust response to this proposal and others in the consultation, which would only serve to compound existing inequality in society. This proposal fails to acknowledge that those buying at the lower end of the market need equal protection.”
Julian Chamberlayne provided an international comparative review of compensation for future losses, focusing on how different jurisdictions calculate and award damages for losses that will continue across a claimant’s lifetime. He noted that full compensation is the starting point in most jurisdictions, including in the UK. However, there are marked differences in what the phrase full compensation means in different countries and there are several challenges in achieving it.
Julian considered the different approaches to compensating future loss. These include: (a) a lump sum calculated with reference to the number of years the loss is expected to continue; (b) a lump sum calculated using a personal injury discount rate (PIDR); (c) periodical payments made on an annual basis for the rest of a claimant’s lifetime and (d) any right to return to court at a later date if the future losses change.
Julian reported on the outcome of a survey he conducted of national delegates of PEOPIL (the Pan-European Organisation of Personal Injury Lawyers) which revealed a divergence in how future losses are calculated across Europe, the US, Australia and South Africa. This includes varying approaches to the PIDR, with some jurisdictions not using one when calculating damages for future losses. Julian also highlighted the importance of considering a bespoke approach to calculating future losses where the claimant lives in a different country, because the default position will often be based on different economic and social welfare assumptions.
Chris then returned to the conference stage to chair a panel discussion with specialist practitioners from across Europe, discussing pre-action protocols and access to rehabilitation funding in cross-border claims. The panel considered the challenges of accessing rehabilitation funding and persuading defendants to engage in meeting the needs of an international injury victim from the outset, in order to maximise their recovery and return to as normal a life as possible following a life-changing injury. The panellists were Nicolas Kyriakides from Harris Kyriakides in Cyprus, Natalia Astigarraga Bronte from Astrom Law in Spain and Maud Lepez from Weightmans looking at the position in France.
Drawing together the different perspectives, Chris concluded: “In England and Wales, a wide range of tools are available to claimant and defendant representatives to facilitate rehabilitation. There is also a framework for providing early intervention and funding to alleviate the hardship caused by a serious injury and maximise the claimant’s physical and psychological recovery. It can be challenging to encourage overseas defendants to engage with the various guides and protocols. This is particularly the case if they are deemed to be part of the rules of procedure where jurisdiction in England may be contested or if they are viewed as part of English substantive law where a foreign law applies to determine liability/damages. The case of Andrew Evans v R & V Allgemeine Verischerung AG [2022] EWHC 2688 (KB), for example, is illustrative of the challenges a claimant will face when trying to enforce the terms of the Rehabilitation Code against an overseas defendant.”
Now in its eighth year, the APIL International Injuries conference brings together specialist practitioners from across the UK and Europe. This year’s event was sponsored by DEKA Chambers, a number of whose specialist international injury and travel law barristers attended and spoke at the event. The conference was supported by several other organisations, including 12 King’s Bench Walk’s International and Travel law team.
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