They first filed their claim in the Supreme Court of New South Wales on July 17, 2015. They argued the airline was liable to pay the full amount of compensation required by the Montreal Convention covering airline crashes – without having to provide evidence of the cause of the crash, or to substantiate particulars of the damages the Lauschet family has suffered.
Under current international and Australian law, the Montreal Convention obliges the airline to pay 113,100 Special Drawing Rights (SDRs) to Lauschet – and Lauschet’s lawyers asked the court to compel payment without delay. SDRs are calculated daily by the International Monetary Fund (IMF).
Six weeks after the first filing, Judge Lucy McCallum issued this ruling, explaining the legal issues at stake. She told the lawyers for Lauschet and for Malaysian Airlines to return to court with new papers spelling out the claim, and the defence. The papers were due in October last, and the court scheduled to resume hearing on October 16.
Skinner announced publicly that “Malaysia Air wants the families to settle for $50,000 or less in some circumstances.” The airline said this was false.
Skinner and Highland were asked to clarify the particulars of their claim; to say what happened at the October 16, 2015, hearing; and to explain the current status of the Lauschet case. The LHD office in Sydney provided Skinner’s emails and relayed telephone messages to him in the US. He did not respond.
Highland did not reply directly. Instead, a spokesman for LHD, James Gallaway, wrote last week: “as proceedings are afoot, we are unable to respond to your questions at this time. I would like also to remind you that, as the author of the correspondence contained in these emails, I hold copyright over my responses.
To that end, may I remind you that our firm's response to your enquiries - and the only material that we agree should be published at this point - is that: 'As the matter is ongoing, we are unable to provide a statement at this time'.” Gallaway denied that Skinner and Highland refuse to answer questions about their MH17 litigation.
Skinner did not attend the coroner’s court hearing in Melbourne. Ten days earlier, he had announced in the Australian press that he is “representing eight Australian families bereaved by the tragedy, from New South Wales, Canberra, Victoria, Queensland and South Australia.” In July of 2015, the number of MH17 clients was 12, according to press leaks from Skinner and LHD. Asked to confirm the client names and the states from which they come, Skinner did not reply. Highland was asked if his firm was representing new cases -- he did not say.
Skinner has targeted Malaysian Airlines and the Malaysian government from the beginning. Ten days after the crash, Skinner told an Australian newspaper: “potential plaintiffs in the case would almost certainly consider Malaysia Airlines as culpable because ‘the airline chose to fly an area that was a known war zone where sophisticated weapons were being used’.
He said allowing the Malaysians to be involved in the investigation had the potential to contaminate the investigation, because the airline's decision and possibly those of any air safety authorities to fly over the war zone, would be central to future compensation cases. ‘This could be seen as an intentional effort to confuse the investigation and the Malaysians should be excluded from it,’ he said.”
Eight weeks later, in September 2014, Skinner suggested the airline was culpable for the flight path the aircraft had taken, and could be sued for more than the Montreal Convention passenger limit. There had been “a deliberate military action in a place where an aircraft didn’t belong”, Skinner claimed.
In July 2015, Skinner told a Sydney newspaper he is hoping the Sydney court will decide to “allow our clients to sue for full damages and shift the burden on to Malaysia Airlines to prove it was not negligent.”
After he filed in Sydney for Lauschet, Skinner announced: “Malaysia Air wants the families to settle for $50,000 or less in some circumstances…Malaysian Airlines and their representative have not been clear or complete. One year has passed and they still want to discuss Advance Compensation Payments.”
The Malaysian Airlines position has been reported as saying it intends to comply with the Montreal Convention limit. “The payment being offered [$50,000 advance] is not conditional on the families waiving any rights to claim further compensation from the airline and that the families remain free to take whatever further legal action they deem appropriate,” the airline spokesman told the Australian press in September 2014. “Our foremost priority is to work tirelessly to attend to the care and support of the next-of-kin. We will also do our utmost to ensure that fair and adequate compensation is paid to families of those affected by this tragedy as soon as possible.”
In order to increase their take, Skinner and Highland are hoping to get the Sydney court to lift the money limit for each claim; open the door to negligence and culpability claims; and multiply as many passenger claims as they can reach by advertising the case in the local press. If all 38 Australian victims were to sue for the SDR limit, the amount for the passengers would reach A$8.4 million (US$6 million).
Lawyers’ fees would be paid on top. But if accepted in the Australian courts, negligence claims against the airline would multiply the damages target by at least a million dollars per passenger, and the total claim by four times at least, injury compensation specialists suggest.
In the case of the Lockerbie bombing, 189 of the victims were Americans; 43 British. The Boeing aircraft was US-made; the airline a US corporation. The US courts accepted jurisdiction for compensation lawsuits, and the claim values were considerable.
On top of the passenger liability required by the Montreal Convention, Pan American paid about $500 million after being judged by a US court to have been negligent in its security procedures for baggage. The Libyan government agreed in negotiations with the US and British governments and lawyers for the passengers to pay $10 million per case, $2.7 billion in all.
Skinner has been advertising in the Australian press that “he previously obtained millions of dollars from Libya for the families of the 1988 Lockerbie disaster.” According to lead lawyers in the Lockerbie case, Skinner was a lawyer for Stanley Chesley, the smallest of the law firms engaged with a handful of clients.
Two large US law firms, representing 188 cases, were Kreindler & Kreindler and Speiser Krause Granito. “Skinner was one of eight lawyers on the plaintiffs’ committee in the suit against Libya,” according to a lead lawyer on the committee. “He helped, but his role was minor compared to that of the senior lawyers.”
Dutch lawyers have also been advertising for clients among the 196 Dutch nationals killed on MH17. They have gone to the Dutch and international press to claim they “currently represent surviving relatives of the passengers who died in the MH17 crash”. When asked to substantiate this, identify the courts in which they have lodged claims, or name the defendants they are targeting for compensation, they refuse. For details of the Dutch lawyer advertising, read this.
Skinner has told Australian reporters that he has twice written on the MH17 case to Tony Abbott, when he was Australian prime minister, asking him to “add leverage” to the case. Skinner will not corroborate what he wrote, nor what Abbott replied. Skinner has criticized the Malaysian airline and government for delaying the Montreal Convention payment. He has not mentioned that the Australian government has been delaying payment of A$75,000, which local law has promised to victims of international terrorism incidents. For the Australian prime minister’s refusal to make MH17 victims eligible for the Victims of Overseas Terrorism Law, read this.
In December Skinner advertised that he is taking eight Australian MH17 cases to the European Court of Human Rights (ECHR). He said “he was awaiting further information before filing in the European Court of Human Rights but warned the case would be ‘very broad’. We don’t want to file an action that’s incomplete.” Skinner told the press he was “waiting on information currently with lead investigative agency, the Dutch Safety Board… ‘What we need is the political information obtained that identifies the actors who made the operational decisions’.”
Lawyers who have litigated at the ECHR in Strasbourg express surprise. Cases are usually required to meet a filing deadline at the ECHR within six months of the cause of the claim, they point out. For MH17 cases, the deadline expired on January 17, 2015. In addition, the ECHR is careful in warning lawyers that it will not become a court of first instance. So claims relating to MH17, or to any crime committed in the Ukrainian civil war, must be filed in other courts first. So far, Skinner and his superiors at LHD have filed only the Lauschet case.
Skinner was asked to identify to clarify the ECHR proceeding by identifying the defendants he is accusing; whether there is a copy of his ECHR submission; and if he is delaying, what is the reason? Skinner was also asked to explain what information he has applied to the Dutch Safety Board (DSB) to provide that was not in its published report on the crash, issued in October 2015. How has the DSB responded? Skinner was also asked. Skinner does not reply.
He has attacked Elmar Giemulla , the Berlin lawyer who has applied to the ECHR on behalf of the daughter of Willem Grootscholten , a Dutch passenger killed in the MH17 crash. Their target is the Ukraine Government in Kiev for negligence and culpability in failing to close the airspace above the war zone in the Donbass region. For details of the Grootscholten case against Ukraine, read this.
By contrast, Skinner has defended the Ukraine government, calling Giemulla’s case “shortsighted”. Skinner says he “rejected the notion the Ukraine should bear sole responsibility for the tragedy… Everybody has a pretty good idea of why the plane crashed.”
Skinner published his own version of the cause of the crash on December 17, 2015.
“By all accounts and in the minds of investigators and informed right thinking people, Russia was clearly resposible [sic] for the BUK2/1, 9M38M1 missile that shredded MH 17 at 32,000 feet on July 17, 2015. [sic] That missile placed 100's of ferrous, bow tie and square shaped shrapnel into the bodies of the pilot, co-pilot and purser. It cut the nose off the Boeing 777... the Russians built the missile, the Russians drove it into the Ukraine, the Russians shot the missile which has a 99 to 100% kill rate, the Russians killed 298 by-standers who lived half the world away from the Ukraine, the Russian destroyed radar data that the accident investigation needed, the Russian failed to make any contribution to most of the investigation, the Russian hacked the investigators computer system, the Russians publicaly [sic] called the investigators biased liars, and now as a final insult they have legislated and declared by executive authority that the human rights convention that they signed cannot be used against them by the Court charge with that duty.”
Skinner was asked for the source of his evidence in the DSB report on shrapnel, the source of the missile, those responsible for firing it, the radar data, and his other claims. The DSB report was published on October 13, 2015; for the DSB’s evidence, and lack of evidence, read this. On the radar data, read this.
“I’m surprised,” commented an aviation law source, “that Jerry, with all his litigating experience in the US, hasn’t mentioned the US government’s satellite and other intelligence data, or claimed the US evidence will back his case.” The DSB report was silent on what US data had been provided to the board, except that in the appendix titled About the Investigation, the DSB acknowledged it had received classified intelligence from other countries – whether directly or through the Dutch intelligence services isn’t made clear.
A month after admitting that much, last November, DSB testimony at a Dutch parliamentary hearing, appeared to acknowledge there was relevant US satellite imagery, and that DSB members had been briefed in secret by US officials. Neither the fact of the briefing nor the evidence itself has been disclosed by DSB. For details, read this and the embedded clip from the hearing.
When Skinner told the Australian press he had asked for more information from the DSB, he was asked last week, “did you mean that the DSB’s report and appendixes issued in October 2015 were insufficient for your litigation, and that you have applied to the DSB for more information? If yes, what has the DSB replied to you?”
Skinner may have the answers. According to the spokesman for LHD, “our firm is busily preparing its pleadings on behalf of our clients”. At the judge’s direction, they will be in the Sydney court on Friday next, February 19, to present them, and the Dutch evidence, for cross-examination by lawyers for Malaysian Airlines and adjudication by the judge. The Dutch lawyers and the Dutch press missed the coroner’s inquest in Melbourne in mid- December. Because billions of dollars in compensation lawsuits are now at stake, they may appear at this week’s trial.
The LHD spokesman adds: “we may comment further regarding ongoing matters, but we will set the deadlines regarding that timing, and any deadlines you might wish to suggest, are for your own indulgence.” The deadline for the ECHR filing has already passed; time is running out for Montreal Convention compensation claims.