Wednesday 19 October 2022
By Appellants Notice filed 21 September 2021, the Claimant (C) appeals the order of HHJ Simpkiss dated 2 September 2021 made in her claim against the Defendant (Freedom Travel Group Ltd (FTG).
The Judge dismissed the Claimant’s appeal from the order of DDJ Campbell dated 21 April 2020 and ordered the matter to be relisted before him if no agreed costs order was filed by 9 September 2021.
The C brought a personal injury claim against FTG following an injury C suffered in 2015 while on a package holiday in Greece booked with FTG. The claim was brought on the basis of improper performance of the holiday contract pursuant to Regulation 15 of the Package Travel Regulations 1992.
FTG made an admission of liability and liability was compromised in 2018 on the basis of a 70:30 split in C’s favour. However before the quantum trial in 2019, Thomas Cook Ltd and FTG as a wholly owned subsidiary of Thomas Cook, went into liquidation, automatically staying the proceedings against FTG.By application dated 27 January 2020
C then applied to add the Bank of Scotland T/A Halifax (Halifax) to the proceedings under CPR 19.5 as a consequence of its joint and several liability with FTG for breach of contract under s75 of the Consumer Credit Act 1974 (CCA). C’s husband paid for the holiday deposit using his credit card with Halifax. The holiday invoice had both C and her husband’s names.
DDJ Campbell dismissed the application concluding C was not a “debtor” within the meaning of s75 CCA and also refused to disapply s11 of the Limitation Act 1980 as Halifax had been prejudiced by FTG’s admission of liability.
HHJ Simpkiss found C was not a party to a credit agreement with Halifax and was not a “debtor” within s75 and s189 CCA. The Judge refused to interpret the CCA purposively to bring C within s75. He rejected C’s argument that if the meaning of “debtor” was plain, then it was in conflict with EU law & the court should depart from its meaning to bring it into line with the aims of the Package Travel Directive (Council Directive 90/314/EEC) in accordance with the MarLeasing principle. He held the aims of the Directive were not directed to damages claims brought by Claimants against credit providers.
The Judge did not deal with the Limitation Act ground (ground 2 below) as he found C has no claim under the CCA. Paragraph 20 of C’s PTA skeleton argument asks that if C succeeds on her first ground of appeal, that the CA deal with the lower court’s Limitation Act ground 2 or remit to the lower court to consider. C’s ground 2 submitted that the DDJ should have disapplied the limitation period in s11 of the Limitation Act 1980.