R Jet2.com Ltd v Civil Aviation Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 10 December 2018 |
| Neutral Citation | [2018] EWHC 3364 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1481/2018 |
| Date | 10 December 2018 |
[2018] EWHC 3364 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Morris
Case No: CO/1481/2018
Charles Béar QC and Nicolas Damnjanovic (instructed by Norton Rose Fulbright LLP) for the Claimant
Sam Grodzinski QC and Iain MacDonald (instructed by Office of General Counsel, The Civil Aviation Authority) for the Defendant
Hearing dates: 21 and 23 November 2018
Approved Judgment
A. Introduction
This is an application by Jet2. com (“the Claimant”) for an order pursuant to CPR 31.12 for specific disclosure against the Civil Aviation Authority (“the Defendant”) of seven categories of document.
The application is made in judicial review proceedings, in which the Claimant challenges, first, the Defendant's decision taken on or about 27 December 2017 to publish a press release concerning the Claimant's refusal to participate in a new ADR scheme proposed for the aviation industry and, secondly, the Defendant's decision to publish inter partes correspondence regarding that press release on or about 5 February 2018 and on or about 19 February 2018.
B. The Factual background Background and summary
The Claimant operates flights to and from the UK and is the UK's fourth largest scheduled airline. Mr Philip Meeson is its Executive Chairman and Mr Steve Heapy is its Chief Executive Officer. The Defendant is the regulator for the aviation industry. At the relevant time Mr Andrew Haines was its Chief Executive Officer and Mr Richard Moriarty was Group Director of its Consumer and Markets Group (“CMG”) and Deputy Chief Executive. Mr Moriarty has subsequently succeeded Mr Haines as CEO.
The claim concerns the Defendant's conduct in relation to the Claimant's decision not to participate in a new, voluntary, alternative dispute resolution (“ADR”) scheme introduced for the aviation industry.
The Defendant has for many years funded a service known as the Air Transport Users Council which handled air passenger complaints. That service was incorporated into the Defendant, becoming the Passenger Advice and Complaints Team (PACT). PACT mediates complaints between passengers and commercial operators by communicating directly with an operator on a passenger's behalf.
EU Directive 2013/11/EU requires Member States to implement regulations which ensure that consumers can, on a voluntary basis, access ADR processes for disputes concerning contractual relations between consumers and traders. In accordance with the Directive, the UK passed the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015. The Regulations provide for a voluntary scheme of ADR, with both traders and consumers able to elect whether they make use of it. The Defendant is designated as the competent authority in relation to ADR for the aviation industry. To date the Defendant has approved two organisations to provide ADR services to resolve complaints made by passengers against airlines (“the new scheme”).
Under the Regulations airlines can choose whether or not to participate in the new scheme. The Claimant has to date elected not to participate in the new scheme and continues to rely on the PACT scheme.
It is the Claimant's case that, at all stages and as the Defendant is aware, there has been nothing unlawful, improper or contrary to any industry code of practice in the Claimant's decision not to participate in the new scheme.
It is the Defendant's published objective to obtain full participation in the new ADR scheme and ultimately to close down PACT. Since 2016, it has also expressed increasing support for primary legislation to make participation in the new scheme mandatory.
The Press Release
On 27 December 2017, the Defendant issued a press release (“the Press Release”), at the same time as publishing its policy document “ADR in the aviation sector – a first review” CAP 1602 (“the Review”). The Press Release subjected the Claimant to criticism for choosing not to participate in the new scheme.
In the Press Release, headed “ Thousands more airline passengers are now receiving compensation thanks to Alternative Dispute Resolution (ADR)”, the Defendant gave information as to the number of airlines who had signed up to ADR and identified others, and in particular, the Claimant, who had not, urging them to sign up. The Press Release criticised the Claimant for choosing not to participate in the new scheme. It stated that Claimant:
“has ‘inexplicably and persistently’ refused to sign up -“ denying its customers access to a fair arbitration service, which can legally resolve disputed complaints fairly and efficiently”.
The Press Release went on to quote observations from Mr Haines, including the following:
“it is extremely disappointing that Jet2, one of the UK's largest airlines, has so far inexplicably and persistently refused to sign up, denying their passengers access to an independent arbitration service. …. Clearly this decision puts Jet2's customers, and those of other airlines that haven't yet signed up, at a distinct disadvantage, and, in many cases, could mean their passengers are denied the fundamental rights they are entitled to”. ( emphasis added)
It is the Claimant's case that these accusations were false and/or misleading.
The ensuing correspondence: January and February 2018
In a 7-page letter from Mr. Meeson to Mr Haines, dated 16 January 2018 (“the 16 January Letter”) the Claimant complained to the Defendant about the tone and content of the Press Release (and, at that stage, of the Review) and explained its reasons for choosing not to move to the new ADR scheme.
The Defendant responded, by letter dated 1 February 2018 (“the 1 February Letter”) by criticising the Defendant further, including (so the Claimant alleges) making further false and/or misleading statements. The 1 February Letter stated, inter alia:
“Your letter was surprising and extremely disappointing on two fronts; your apparent disregard for the rights of customers when your levels of service fall below that which you say you aspire to and secondly the poor and inconsistent case you make in seeking to defend, what I regard, as your indefensible position”.
It went on to assert that the Claimant's arguments against ADR are “ transparently narrow and self-interested” and repeated the criticism of denying customers their fundamental rights. The 1 February Letter also contained complimentary observations about the Claimant's services and asserted that the Defendant was pursuing a proper purpose by drawing attention to the Claimant's ongoing failure to participate in ADR. The Letter concluded by the Defendant reserving the right to publish its letters and any previous or future correspondence on the issue.
On 6 and 19 February 2018 the Daily Mail published articles that referred in detail to the foregoing correspondence between the Claimant and the Defendant, as well as the underlying critique in the Press Release. The 6 February article repeated some of the criticisms of the Claimant made in the 1 February Letter. It included the direct quotes from the Letter, set out in paragraph 13 above. It is now clear that the Defendant provided some or all of the correspondence to the Daily Mail. The Claimant contends that the article adopted the Defendant's stance against it, portraying the Claimant as intent on depriving it customers of compensation to which they were legally entitled.
The Proceedings
After pre-action protocol correspondence in March 2018, proceedings were issued on 12 April 2018. The Defendant opposed permission in Summary Grounds of Defence dated 8 May 2018. On 8 June 2018 Mr Justice Turner granted permission on the papers, stating that “on a quick perusal of the material available there is an arguable case for judicial review”. The substantive hearing of the claim is due to commence on 29 January 2019.
Subsequently on 3 August 2018 the Defendant served Detailed Grounds for Contesting the Claim (“Detailed Grounds”) together with a witness statement of the same date from Mr Richard Moriarty.
In September 2018 and in the light of the Detailed Grounds and Mr Moriarty's statement, the Claimant wrote to the Defendant seeking disclosure of material in a number of categories. Correspondence ensued, with the Defendant broadly declining to give such disclosure. The present application was issued on 26 October 2018, supported by a witness statement from Mr Springthorpe of the Claimant's solicitors, Norton Rose Fulbright. Ms Serena Lim, the Defendant's Principal Legal Adviser, responded in a witness statement dated 13 November 2018. In the lead up to and indeed during the course of the hearing, further correspondence has ensued. As a result, some issues were resolved and yet further, new, issues have been raised.
The Claimant's grounds for judicial review
The Claimant contends that the Defendant's publication of the Press Release and subsequent inter partes correspondence (in January and February 2018) was unlawful on four grounds: the publications were ultra vires; the Defendant acted for an unlawful purpose or took into account irrelevant considerations; breach of duty of procedural fairness; and irrationality. It is the first two grounds which are relevant to this application: the Claimant's case is as follows:
(1) The Defendant had no statutory power publicly to criticise the Claimant for choosing not to participate in the new scheme. Section 83 Civil Aviation Act 1982 (“ CAA 1982”), which gives the Defendant the power (and the duty) to publish information and advice for the purpose of assisting consumers to compare services and...
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