The ‘consumer’ does not need to be the person who concluded the contract, the High Court has held for the first time.
The case concerned Bonnie Lackey, who sustained a life-changing spinal cord injury when a wave machine was activated at a Mallorca hotel. The holiday was booked by her friend.
Master Davison confirmed a previous Court of Appeal decision that it is possible to join an insured (the hotel) to a claim brought directly against its insurer, in Lackey v Mallorca Mega Resorts & Anor [2019] EWHC 1028 (QB).
Stewarts partner Chris Deacon (pictured) Bonnie Lackey’s solicitor, said the judgment goes further than the Court of Appeal’s, by confirming that, alternatively, Mrs Lackey could bring her claim in the English courts as a consumer under the contract for accommodation she had directly with the BH Mallorca Hotel.
The Court of Appeal decision was Hoteles Pinero Canarias SL v Keefe [2015] EWCA Civ 598. A reference was made to the European Court of Justice for guidance on the consumer contract exception under the Brussels Recast Regulation, but the case compromised before it was received. In Lackey, the hotel argued that Master Davison should again refer the issue, but he refused.
The hotel also argued the claimant could not rely on the consumer contract exception as she did not make the booking. Rejecting this, Master Davison said: ‘Plainly, the consumer bringing the claim must be a beneficiary of the consumer contract or at least within its ambit.
‘That does not mean that she personally must have concluded it… there would be no linguistic or purposive justification for such a restrictive interpretation.’
Deacon said the decision in Lackey ‘offers welcome clarification as to what an individual must show to benefit from the consumer contract jurisdiction gateway under the Brussels Recast Regulation.
‘This provision is there to protect the weaker party to a contract and makes absolute sense in the context of a holiday accommodation booking made directly with the local provider. The BH Mallorca Hotel’s argument in this case would have undermined the clear intention of the Regulation and denied enhanced consumer protection to many hundreds of its customers each year’.
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