Stewarts’ International Injury department has successfully resisted a challenge to the jurisdiction of the High Court of England and Wales for its client Matthew Cummings.
Mr Cummings suffered a career-ending injury while working as an Airbus 330 captain for Beijing Capital Airlines Co. Ltd (“BCA”). The injury occurred when Mr Cummings was travelling on the crew minibus from the crew hotel to the airport in Hangzhou on 26 September 2018.
Mr Cummings had been due to fly from Hangzhou to Sanya and then on to Beijing as part of his flying roster with BCA. When Mr Cummings boarded the minibus for the journey to the airport, the seatbelt on the only available rear seat did not have a shoulder strap. It was subsequently discovered that the strap had been cut off. During the journey, the minibus driver braked suddenly, causing Mr Cummings to be flung forward, with his head and face striking the seat in front. He suffered injuries to his face and jaw, resulting in Mr Cummings requiring prolonged medical treatment and relying on pain medication. As a result, the UK’s Civil Aviation Authority has withdrawn his fit-to-fly certificate.
Bringing a claim
In late 2020, given the ongoing impact of his injuries two years after the incident, Mr Cummings instructed Stewarts’ partner and international injury specialist Chris Deacon to bring a claim against BCA. Chris prepared and sent a letter of claim sent in January 2021, further to which BCA denied liability for Mr Cummings’ accident and injuries. Mr Cummings instructed Stewarts to commence High Court proceedings in England. The claim form was issued on 13 September 2021 and served on BCA’s London office on 5 October 2021.
BCA instructed DAC Beachcroft in London. BCA issued an application on 6 January 2022, challenging the jurisdiction of the High Court of England and Wales. It argued that the proceedings should be stayed on the basis China was the more appropriate forum in which Mr Cummings’ claim should be determined.
Chris prepared a detailed witness statement with extensive supporting evidence in opposition to the jurisdiction challenge. Part of the evidence provided in reply included two reports from a Chinese law expert instructed on Mr Cummings’ behalf, Mr Zhongqi “Allen” Fu of Fangda Partners. Chris highlighted the following key points to demonstrate that England and Wales is the appropriate forum in which Mr Cummings should be permitted to pursue his claim against BCA:
Although BCA has denied liability, the provisions of Chinese law on which Mr Cummings relies amount to a strict liability regime, imposing responsibility on BCA for any injury Mr Cummings sustains while working for the airline.
Therefore, the focus of the case is the assessment of damages. Mr Cummings returned to England within days of the injury and has remained at the family home from which he has sought and received extensive medical treatment. Almost all the evidence relating to Mr Cummings’ past and future financial losses is based in England and in English. His most notable loss is past and future earnings; his past earnings were set out in detail in the preliminary schedule of losses served with the proceedings. Any future residual earning capacity would be based on Mr Cummings finding employment in England and best assessed by factual and/or expert witness evidence in this jurisdiction.
Recent developments in Chinese law suggest the Chinese courts will permit the recognition and enforcement of a judgment from the English courts. BCA also has assets in England against which enforcement might be possible and continues to fly in and out of the jurisdiction on a regular basis, having landing slots at Heathrow Airport.
The English courts are experienced in applying foreign law. Furthermore, the evidence relied on by BCA indicated that the relevant provisions of Chinese law could be accessed in a reliable English translation version from a website regarded and described by the defendant as a “reputable legal database” and maintained by Peking University.
BCA has the benefit of a well-resourced legal team, including Chinese-English bilingual lawyers, facilitating the defendant’s ability to participate in proceedings in England far more readily than the claimant would be able to in China.
BCA recruited Mr Cummings via an agency based in Ireland, advertising directly to UK and European-based pilots (and continues to do so), operating flights from London Heathrow and Madrid.
Mr Cummings would have faced various other legal hurdles if he were required to pursue his claim in China, including a possible mandatory arbitration requirement in labour disputes. Furthermore, when Mr Cummings had to elect where to bring his claim in September 2021 prior to the expiry of the limitation period, it would have been impractical for him to access justice in China at a time when the country was and continues to be subject to strict Covid-19 pandemic restrictions, including a ban on foreign visitors.
A swift resolution
Shortly before the hearing, BCA indicated that it would withdraw its challenge and voluntarily submit to the jurisdiction of the High Court in London.
Chris commented: “Our client is pleased we have resisted his former employer’s challenge to jurisdiction in England and Wales and that this issue has been resolved as swiftly as possible. He now looks forward to BCA engaging in the substantive proceedings and to the prospect of resolving the dispute so that he can move forward from the devastating impact this career-ending injury has had on him and his family.”
Chris has been supported by a team of paralegals in responding to the jurisdiction challenge and instructed Sarah Prager of 1 Chancery Lane throughout.
Following the withdrawal of its challenge to jurisdiction, BCA has now instructed Wikborg Rein.
You can find further information regarding our expertise, experience and team on our International Injury page.
If you require assistance from our team, please contact us.
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