Advocate General’s Opinion in X v Kuoni travel case
The ongoing case of X v Kuoni involves a holidaymaker who went on a package holiday to Sri Lanka. At night, she came upon a hotel employee, N, who was employed as a hotel electrician and on duty. N offered to show her a shortcut to reception and then lured her into the engineering room where he raped and assaulted her. X brought a claim for damages against the tour operator and lost at first instance and in the Court of Appeal. The Supreme Court, in X v Kuoni [2019] UKSC 37 referred to Europe two questions, the first of which was:
Where there has been a failure to perform or an improper performance of the obligations arising under the contract of an organizer or retailer with a consumer to provide a package holiday to which Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours applies, and that failure to perform or improper performance is the result of the actions of an employee of a hotel company which is a provider of services to which that contract relates:
a) Is there scope for the application of the defence set out in the second part of the third alinea to article 5(2); and, if so,
b) By which criteria is the national court to assess whether that defence applies?
Advocate General Szupnar produced an Opinion dated 10 November 2020 indicating that the defence under the Package Directive cannot be applied where the failure to perform or the improper performance of the contract is the result of the acts of an employee of a supplier of services performing that contract. This opinion is entirely supportive of the claimant’s case. The next step will be for the Court of Justice of the European Union to provide its judgment on the issue.
Robert Weir QC acts for the claimant, leading Katherine Deal QC of 3 Hare Court, instructed by Phil Banks and James Riley of Irwin Mitchell.
The Advocate General’s opinion can be accessed here.
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