HALL V HEART OF ENGLAND BALLOONS LTD

Birmingham County Court, His Honour Justice Worster, 17 November 2009

Carriage (air) - Carriage of passenger by hot air balloon resulted in personal injury - Claimant sued wrong defendant - Two-year limitation period applied under the Montreal Convention - Limitaiton period expired - Whether action could be amended thereafter to include right defendant - Doctrine of relation back - Carriage by Air Acts (Application of Provision) Order 2004 - Montreal Convention, 1999 - Civil Procedure Rules

The claimant, H, took a trip in a hot air balloon paid for by her friends as a 21^st birthday present. She suffered injuries to her neck and back in a hard landing. MG, the pilot of the hot air balloon, had a trading name "Heart of England Balloons", and some time after the accident he also incorporated a company called "Heart of England Balloons Ltd". The claimant's solicitor commenced an action within time, right at the end of the two-year limitation period stipulated by the Montreal Convention 1999, against Heart of England Balloons Ltd. The defendant replied that it did not exist at the time of the accident and could not be liable and that the claim should be struck out. The claimant sought to amend the particulars of claim to: "MG T/A Heart of England Balloons (without the word "Ltd"). Worster J rejected the application. On a natural reading of the language of article 35, the action brought by the claimant in this case was not a properly constituted action such as prevented the running of time. An action such as would prevent the running of time must be an action by the passenger against the carrier. The Convention was not to be construed like a domestic statute; to allow a national court to amend the claim pursuant to CPR Part 17.4 and or 19.5 would be to allow resort to a local procedural rule which conflicted with an express provision of the Convention.