Claire Smyth v British Airways PLC & Anor
| Judge | MASTER DAVISON |
| Neutral Citation | [2024] EWHC 2173 (KB) |
| Year | 2024 |
| Court | King's Bench Division |
| Counsel | Lyth,Brian Kennelly Kc,Tom Coates,Aislinn Kelly Lyth |
| Date | 02 September 2024 |
Neutral Citation Number: [2024] EWHC 2173 (KB)
Case No: KB-2023-000089
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 02/09/2024
Before :
MASTER DAVISON
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Between :
CLAIRE SMYTH
Claimant
and
(1) BRITISH AIRWAYS PLC
(2) EASYJET AIRLINE COMPANY LIMITED
Defendants
and
JOHN ARMOUR
Interested Party
(for the purposes of costs only)
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Hugh Preston KC andConor Dufficy (instructed via Direct Access) for the Claimant
Brian Kennelly KC, Tom Coatesand Aislinn Kelly-Lyth (instructed by Linklaters) for the
First Defendant
Charles Béar KC andGiles Robertson (instructed by Norton Rose Fulbright)for the Second
Defendant
Hearing dates: 10 & 11 July 2024
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Approved Judgment
This judgment was handed down remotely at 10.30am on 2 September 2024 by circulation to
the parties or their representatives by e-mail and by release to the National Archives.
.............................
Master Davison:
Introduction
1.This claim raises some novel and interesting points about the permissible scope of a
representativeaction under CPR rule 19.8. It arises inthefollowingway. The
claimant, Ms Claire Smyth, was booked on a British Airways flight scheduled to fly
from London Gatwick to Nice at 1740 on 18 June 2022. On 14 June (less than 7 days
before departure) the flight was cancelled. The cancellation gave rise to a right on the
partofthe claimant to claim compensationunderArticle7(1)ofEURegulation
261/2004. This Regulation (which was retained post-Brexit) establishes, under
specified conditions, minimum rights for passengers when: (a) they are denied
boarding against their will; (b) their flight is cancelled; or (c) their flight is delayed.
For short-haul flights of less than 1,500 kms (such as the one the claimant was booked
on) the level of compensation was €250 and, post-Brexit, is now £220.
2.Thedefendants to the claim, British Airways and easyJet, both maintain portals
through which passengers may claim the compensation, free of charge. Ms Smyth did
not utilise that method. Instead, on 2 August 2022, direct access counsel, Mr Hugh
Preston KC (who has acted for the claimant throughout) wrote a letter before action
on behalf of a very large class whose members were, in summary, those who had
booked a flight with BA or easyJet scheduled to depart from, or arrive at, an airport in
the UK during the period from 1 December 2016 to 31 August 2022 and whose flight
was then either cancelled or delayed by three hours or more. (I will have to return to
the precise delineation of the class as it was first framed in this letter. For present
purposes, suffice it to say that it was intended to include, and only include, those
passengers who had an indisputable right to compensation.) For reasons that are not
clear to me, the letter did not identify Ms Smyth as the representative.She was not
identified until 5 months later. The letter of 2 August 2022 referred to a schedule of
flights believed to fall withinthe relevant criteria, which wouldbe served in due
course and which would be adjusted as necessary in order to eliminate cases in which
there was, or there came to be recognised, an arguable defence. The stated purpose of
the claim was to recover compensation where that was legally due but had not been
paid, “for example because the customers have not been made aware of their right to
claim compensation”. An important element of the claimant’s case is that there is low
awareness of the passenger rights conferred by the Regulation andthat airlines,
including BA and easyJet, do the bare minimum to inform passengers of their rights
and to allow those rights to be satisfied. The claimant’s position is that this claim
will, effectively, force BAand easyJet to takea proactive stance andto pay the
compensation in all cases where it is indisputably due.
3.The schedule was served with the Part 8 Claim Form, which was issued on 10 January
2023. The schedule contained approximately 116,000 flights. Various estimates can
be made as to the scale of the claim. For the purposes of the hearing, the rough and
ready estimate offered byMr Béar KC for easyJet was as follows. Assuming
approximately 200 passengers per flight (i.e. 23.2 million passengers) and on the
further assumptions that 25% of the flights were indisputably compensable and that
25% of passengers had not already been compensated, then the claim would be worth
£319 million. The assumptions might prove to be inaccurate one way or another. But
on any view, the claim, if properly constituted as a representative action, will be a
very large one.
4.A feature of the claim is that it is funded by a Mr John Armour, an Australian citizen
who is a resident of Monaco and who is Ms Smyth’s employer. The exact funding
arrangements have not been disclosed and this is a topic that I will have to return to.
But on 24 May 2024, Ms Smyth obtained an order from Master Pester in the
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