British Airways Board v Taylor

The British Airways Board has been prosecuted by the Inspector of Trading Standards, Manchester, for an alleged offence under the Trade Descriptions Act 1968, section 14(1)( b). The information was in the following terms:

"On or about the 15th August 1973 at Marple in the Petty Sessional Division of Stockport in the course of a trade or business the accused recklessly made a statement, namely,

'I have pleasure in confirming the following reservations for you:

London/Bermuda Flight BA 679—Economy Class—29 August Dep. 15.25 hours Arr. 17.50 hours.'

By means of a letter addressed to W. J. Edmunds about the provision of services namely the transportation of a person by aeroplane which was false as to the time at which the service was to be provided contrary to Section 14(1)(b) of the Trade Descriptions Act, 1968"

The magistrates' court at Stockport found the offence proved and fined the Board £250. The Board appealed to the Divisional Court which allowed the appeal and quashed the conviction, holding that the statement made was promissory in character, and not a statement of an existing fact, so that it could neither be true or false.

At the request of the prosecutor the court certified the following point of law as of general public importance under section 1(2) of the Administration of Justice Act 1960, namely,

"Are magistrates entitled to find that a statement made by an airline to a passenger confirming a reservation on a specific flight, on a specific date and at a specific time was a false statement as to the time at which a service was to be provided within section 14 of the Trade Descriptions Act 1968 in the following circumstances:

( a) that at the date when the said statement was made to the passenger the flight was not over-booked;

( b) that the booking on the said flight had already been made at the date;

( c) that at all material times the airline had a general policy of overbooking flights;

( d) that the passenger was prevented from travelling on the flight subsequently because of the operation of the policy."

A number of findings of fact were made by the justices and recorded in the case stated. I summarise the most relevant.

The passenger involved was Mr. W. J. Edmunds, a resident of Bermuda, who purchased a passenger ticket from British Overseas Airways Corporation for a flight from Bermuda to London on 15 July 1973 and return. The ticket was bought on what is known as an Earlybird Certificate which, when properly completed, entitles a passenger to a reduced fare, but obliges him to travel, both outward and on return, on the specified flights and dates endorsed on the ticket. In Mr. Edmunds' case the return flight was specified as 29 August 1973 on Flight BA.679.

On 14 August 1973, Mr. Edmunds, then in London, telephoned B.O.A.C. Reservations to confirm, but was told that he was not booked on the specified flight. He was advised to contact the Customer Relations Department. He did this, and was orally assured that he was properly booked. He asked for confirmation in writing and this was given by a letter dated 14 August 1973, the relevant terms of which are set out in the information. This letter bore the heading on one side "British Overseas Airways Corporation", and on the other "BOAC" superimposed on "British Airways" (sic). It contained a reference to "assisting you next time you travel BOAC". I think that there is no doubt that this letter was written on behalf of B.O.A.C. and not the British Airways Board. This has consequences which I shall mention later.

It will be seen that the question certified by the Divisional Court contains a reference to "a general policy of overbooking flights", and there was evidence as to this given before the justices. An officer of B.O.A.C. admitted that, in common with all major international airlines, B.O.A.C. operated such a policy "as a prudent business exercise to counteract 'no-shows' i.e., those passengers who make reservations on flights but do not turn up". This policy inevitably resulted in occasional off-loading of passengers who had booked. Some statistics were given showing that, over a twelve month period, as regards B.O.A.C.'s services from London, two passengers out of 10,000 were off-loaded, whereas the number of "no-shows" was considerably greater.

My Lords, although a good deal was said in the course of argument by way of explanation and justification for this policy, I must make it clear that we are not, in this appeal, concerned with whether it is commercially sound or unsound, fair or unfair to passengers generally, operated conscientiously or otherwise. Such questions are, in any event, primarily within the control of administrative authorities, the Civil Aviation Authority or the Secretary of State in this country and similar bodies elsewhere. We are only concerned in this case with the letter addressed, after a specific request, to Mr. Edmunds on 14 August 1973. Was this a promise as to what the airline intended to do, or was it a statement of fact as to the airline's service? Before I attempt to deal with this issue I should remove from the discussion certain points which might arise on the form of the information. This contains two ingredients, namely, first, an allegation that the statement was made recklessly (section 14(1)( b) of the Act), secondly, that it was false as to the time at which the service was to be provided (section 14(1 (iii)). It might well be contended that these were inappropriate and that the charge should have been that the statement was known to be false (section 14(1)( a)) and that the matter, as to which it was false, was the provision of services (section 14(1)(i)). But counsel for British Airways Board disclaimed any such contention and both sides agreed that the appeal should be decided on the basis that, in both respects, the charge had been correctly framed.

My Lords, the distinction in law between a promise as to future action, which may be broken or kept, and a statement as to existing fact, which may be true or false, is clear enough. There may be inherent in a promise an implied statement as to a fact, and where this is really the case, the court can attach appropriate consequences to any falsity in, or recklessness in the making of, that statement. Everyone is...