Flight delay lawsuits in the UK fall short of the requirements for certification as a class action lawsuit
In a significant decision, Master Davison has struck out a representative action against British Airways and easyJet, bringing an end to a legal battle that sought compensation for passengers affected by flight delays or cancellations.
The representative action was brought by one passenger, Claire Smyth, who was affected by a cancelled flight in 2022. Smyth argued that she should be allowed to act as representative of other passengers impacted by flight cancellations or delays of three hours or more during a period spanning more than five and a half years.
However, Master Davison found that the class of claimants Smyth purported to represent did not share the 'same interest' required for raising a representative action under the Civil Procedure Rules. The judge highlighted that each passenger's situation was unique, requiring individualized determinations, and that no common issue had been set out by Smyth's lawyers in this case.
The judge expressed concerns about Smyth's true motivations for bringing the action, as she was entitled to 24% of any compensation recovered from the litigation, with the cost being underwritten by her employer. This arrangement, according to Judge Davison, could have entitled the claimant to an extraordinary amount of money, in excess of £70 million, had the case proceeded and been successful.
The judgement also raised concerns about the commercial models used to fund opt-out class actions. Barker, a legal expert, noted that the arrangement could have been problematic, potentially allowing the claimant to earn a significant sum of money.
The airlines, British Airways and easyJet, will welcome the decision. Grierson, another legal expert, stated that the judgement provides support and clarity to the airline industry, recognizing that flights are cancelled or delayed for different reasons, and that liability for compensation needs to be considered on a flight-by-flight basis.
Grierson added that a representative action is unlikely to meet the 'overriding objective' of dealing with such cases justly or at proportionate cost, noting the availability of remedies to passengers through airlines' own complaints procedures at little or no cost.
The judge also emphasized that there are other routes for airline passengers to claim compensation for cancelled or delayed flights, such as exercising rights under UK consumer law and using the airlines' own complaints procedures.
The case also highlighted the issue of delayed flight compensation, as the government did not implement an automatic compensation scheme when enacting the EU regulation that created the right to compensation. Hawthorne, another legal expert, noted that this case illustrates that the representative action procedure does not have the machinery or guardrails needed for modern opt-out class action litigation to ensure that claimants, funders, and their legal teams are not excessively rewarded and that these claims are brought with the objective of securing redress for genuine legal wrongs rather than securing a windfall for those involved in bringing the action.
The organization FairPlane, which filed for the representative lawsuit, seeks compensation of up to €600 per person and charges about a 30% success fee for its services. Despite the setback, FairPlane may choose to pursue individual claims on behalf of affected passengers.
In conclusion, Master Davison's decision to strike out the representative action against British Airways and easyJet marks a significant development in the legal landscape of flight compensation claims. The judgement underscores the need for a more nuanced approach to representative actions, particularly in cases where individual circumstances vary widely.
