The extent of chambers’ strength in depth in this field can be seen in the recent Commercial Court case of Alpstream AG and others v PK Airfinance and GE Capital, which had several members involved at silk and junior level involved. The case is now heading to the Court of Appeal.
The case was one of the main aviation cases of 2013, involving questions on the standard to be expected of a mortgagee of aircraft when it repossesses and sells them to pay off the debts of the mortgagor, in a case subsequently valued after judgment at US$10m.
Members have remained involved in a broad spectrum of aviation cases, as demonstrated in the examples below:
- Aviation commercial disputes: Members have appeared in the case of ACG Acquisition XX v Olympic Airlines, in a case in which tested the lessors’ ability to rely on protective clauses in aircraft leases, as well as Genesis Aviation v Nordavia, which raised difficult questions of contractual interpretation and the law of restitution. Members have developed a successful reputation in aircraft leasing disputes in the Commercial Court.One 2013 example included the set’s representation in the Air Transworld v Bombardier litigation, a substantial Commercial Court action before Mr Justice Cook. This case, alleging design negligence, has become a leading case on the interpretation of unfair contract terms in international sales of aircraft. It also required a detailed analysis of technical and industry regulatory issues.
- Aviation claims involving disaster, catastrophic/ extensive loss and damage: Members have been instructed on legal issues arising out of the catastrophic loss, with all passengers, of Air France- AF447 and other serious claims, including Russian, Thai and Brazilian cases. Members are also instructed to appear in the appellate case of Rogers v Hoyle, concerning the admissibility of reports prepared by air accident investigators.The issue has far reaching consequences for the industry in relation to encouraging co-operation with air accident investigators. Other cases handled include litigation regarding mid-air plane collisions, disputes involving micro light aircraft; and proceedings involving a fatal helicopter crash.
- Aviation disputes linked to the recession: Insolvencies and financial difficulties have kept members busy. Representation in HSH Nordbank v Saad Air successfully recovered aircraft from a defaulting borrower in successfully obtaining an interim delivery up order, whilst other members have acted in Commercial Court proceedings concerning the seizure and sale (by an order for forced sale) a luxury private jet, as well as acting for bank liquidators to recover sums due under a guarantee relating to the liabilities of an insolvent aircraft operator. Here, we are familiar with cases regarding termination of contractual relationships, all involving significant sums at issue.
- Aviation insurance/reinsurance: The set has advised the London insurance market on aviation issues, insurance cases concerning multi-million dollar arbitrations, and US insurers on liabilities arising out of a major air disaster.
- Aviation regulation: Members regularly advise the Civil Aviation Authority at silk and junior level, including on potential claims arising out of the heavy snowfall in December 2010, and from volcanic ash cloud disruption earlier that year, as well as the operation of the ATOL scheme, consumer credit law, and passenger capacity agreements.
- Aviation public law: A new focus is police-related aviation work; given a new statutory obligation to contribute to the costs of funding policing at airports. Other public law instances include representation of the Republic of Cyprus in support of the UK Government’s refusal to permit direct flights from England to northern Cyprus under Turkish control,; whether proposed airline mergers should be referred to the Secretary of State; and challenges to passenger charges for use of airport parking spaces.