Ms Paola Dore v Easyjet Airline Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Birss,Lord Justice Snowden,Lord Justice Males |
| Judgment Date | 23 November 2022 |
| Neutral Citation | [2022] EWCA Civ 1553 |
| Docket Number | Case No: CA-2022-000501 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1553
Lord Justice Males
Lord Justice Birss
and
Lord Justice Snowden
Case No: CA-2022-000501
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON SECOND APPEAL FROM HHJ CLARKE
SITTING IN THE COUNTY COURT AT OXFORD
Appeal Reference No. 238
AND ON APPEAL FROM DEPUTY DISTRICT JUDGE ABRAHAMS
SITTING IN THE COUNTY COURT AT LUTON
H66YX389
Royal Courts of Justice
Strand, London, WC2A 2LL
Meg Cochrane (instructed by Lovetts Solicitors) for the Appellants
Robert-Jan Temmink KC and Richard Taylor (instructed by the Respondent) for the Respondent
Hearing date: 2 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 23 rd November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives
This is an appeal from the order of Her Honour Judge Clarke sitting in the County Court at Oxford dismissing an appeal from Deputy District Judge Abrahams sitting in the County Court at Luton. The case is about compensation for flight delays under Article 7 of Regulation (EC) No. 261/2004 (as amended by Part 4, section 8 of the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment) (EU Exit) Regulations 2019). There is no dispute that, subject to one crucial point, the appellants are entitled to compensation under the Regulation for a delayed flight. The compensation due is €250 for each passenger. The appellants brought a claim in the county court against the respondent for that sum. The crucial point is whether or not the appellants complied with the airline's terms and conditions of carriage before the court action was commenced. The issue is whether they first applied for the compensation directly to the airline, using the airline's online dispute resolution system. The airline said they did not do that and accordingly, in accordance with the terms, were not entitled to compensation. The appellants' case was that they had brought a claim in the airline's online portal and therefore the claim was not barred.
The courts below have held in favour of the airline. By the conclusion of the hearing before us, it was manifest having regard to material which emerged over the course of these proceedings, which had either not been produced below or not drawn attention to, that the appeal should be allowed.
What happened
On 21 May 2019 the appellants made two separate bookings to fly with the airline from Milan to Alghero (also in Italy) on 1 June 2019. They took the flight, but it was delayed by 7 hours. That is why, subject to the point mentioned, the appellants would be entitled to €250 each in compensation.
The relevant terms and conditions of carriage contain a clause 19.6. The airline has submitted that this clause requires a passenger seeking compensation first to make their claim directly using an online portal provided by the airline and to allow the airline 28 days to respond. I will return to the precise terms of the relevant clause below. Put broadly Bott & Co Solicitors Ltd v Ryanair DAC [2019] EWCA Civ 143 holds that requiring parties to use a (well designed) online system first does not itself put material barriers in the way of compensation so as to fall foul of Article 15 of Regulation (EC) No. 261/2004, which prohibits contractual clauses that limit or waive an airline's obligations to its passengers.
Not long after the flight it seems that Lovetts were instructed on the appellants' behalf. How they came to be instructed does not matter, although it may be that this happened because the appellants engaged a company called Flightright GmbH to obtain flight delay compensation for them.
On 24 July 2019 Lovetts wrote a letter before action on behalf of both appellants directly to the airline seeking compensation for the flight delay. In response on 5 September 2019 the airline replied taking the point that no claim had been submitted directly via the airline's online portal.
More than a year later, on 11 April 2021 someone accessed the airline's online portal and tried to submit a claim on it on behalf of the appellants. It is now common ground that the person who did this was an individual at Flightright, acting for the appellants. One of the issues in this case is whether passengers are entitled to submit a claim this way, by having someone else use the portal for them. The evidence is unclear whether one submission was attempted for both appellants or two individual submissions were attempted.
On the same day (11 April), the airline's online system generated an automatic email response which stated that the airline had been unable to find the booking with the information provided and asked the appellants to resubmit their “claim”. Notably, given what follows, although the automatic email response contained a transaction reference number 171816452, it did not identify any particular error in what had been entered, or set out what information had been entered by the customer, but simply asked the customer to start again and enter all the information about the flight (such as their name, the booking reference, flight number, date and airports). Nor was there any facility where a customer could go back into the system and identify what information had been entered previously.
On 24 April 2021 Lovetts emailed the airline on behalf of both appellants, stating that a claim had been submitted directly to the airline, quoting the online transaction reference number 171816452, and seeking compensation. We now know, but it is at least unclear if the material was available in the courts below, that that 24 April 2021 message also attached copies of both appellants' boarding passes for the flight.
We also now know, but this was not before the courts below, that on 26 April 2021 the airline replied, refusing the claim on the basis that they could not trace any evidence that the appellants had complied with clause 19.6 of the terms. Notably the letter does show clearly that the airline had by this stage unambiguously identified both of the appellants, their booking references, and the relevant flight.
The Claim Form (with Particulars of Claim) was issued on 8 June 2021. The Defence did not dispute that the airline may be liable under the Regulation but took the point that the appellants had not complied with clause 19.6 by making a claim directly to the airline.
The claim was allocated to the small claims track and listed for a hearing in Luton on 16 December 2021 along with a number of other similar claims. Luton is one of the centres in England which handle large numbers of flight delay claims. It is the local court for Easyjet. Similarly Liverpool handles similar volumes of claims for Ryanair. These courts have developed expertise in effectively and efficiently handling the very high numbers of flight delay claims which come to them.
The parties' evidence was served, each side relying on a witness statement of a solicitor. Both statements included a copy of the 11 April automatic email from the airline's online system. The airline's position in the evidence was that the appellants had not provided sufficient information to process the claim, as shown by the automatic email, and so there had been no compliance with clause 19.6. The appellants' position was that they had complied with clause 19.6 by making a direct submission using the web portal which the automatic email showed had been logged. The argument on the appellants' behalf was that the information asked for in the automatic email was the same as the information which the online portal required to be entered and so the airline would already have had the information requested.
Both sides were professionally represented at trial. Notably, given how later submissions developed, the appellants' representatives did not ask the airline for a record of the information which had been submitted to the online portal.
In his judgment DDJ Abrahams identified the issue as being whether clause 19.6 had been complied with. The judge correctly identified the case for the claimants (now appellants) as being based on an insistence that the online portal had indeed been used in order to submit a claim and that the fields in the website had been filled in correctly. The argument was that the automatic email response showed that a claim had been submitted and it followed that the right information must have been entered by the appellants or on their behalf.
The judge was not satisfied that the appellants had shown that sufficient information had been entered to allow the airline to identify their claim and therefore was not satisfied that they had fulfilled clause 19.6, and so held that “on this very narrow ground” the claim was to be dismissed.
On appeal before HHJ Clarke the appellants' case was put on the basis that the DDJ's judgment imposed requirements on claimants which went beyond the terms of clause 19.6, including by requiring them to disclose or provide a copy of what they had submitted online, when that was unfair and impossible, all the more so when the airline must have a record of that information and the airline's system did not have a save or download facility which allowed a customer to save the information which is entered. Further evidence about the operation of the online portal website was given to HHJ Clarke which had not been before DDJ Abrahams. First it was explained to the court that it had been Flightright who made the online claim on the appellants' behalf and second the court was given a demonstration of how the website worked.
The point of the demonstration was to support the insistence on behalf of the appellants that a valid booking reference must have been entered. The demonstration showed...
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The Dekagram 5th December 2022
...areas in which uncertainty is to be discouraged, we think. The Denied Boarding Regulation: Dore & Anor v Easyjet Airline Company Ltd [2022] EWCA Civ 1553 A Court of Appeal judgment in a claim worth less than '450 is a rare find. Still rarer is one which is predicated almost exclusively on f......