Delayed flight claims fail to meet test for UK class action treatment

David Barker, Mike Hawthorne and Brian Grierson of Pinsent Masons were commenting after Master Davison struck out a representative action against British Airways and easyJet.

The action in the case 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. A rough assumption made about the total value of the claims was that, if successful, they would cost the airlines £319 million.

Master Davison held, however, that the action brought by Smyth was not one that could properly be brought as a representative action. This is because, he determined, it is not one where all members of the class of claimants Smyth purported to represent share the ‘same interest’ in the claim – as is required for raising representative actions under the Civil Procedure Rules (CPR) that apply to civil court proceedings in England and Wales. In this regard, the judge said that it was clear from the action Smyth brought “that there are multiple different claims, all raising their own issues and requiring ‘individualised assessments’”.

“Whether represented parties share the same interest is tested by asking whether there is a ‘common issue’ (or more than one), the resolution of which would benefit all the represented parties,” said Master Davison, finding that no such common issue had been set out by Smyth’s lawyers in this case.

“The practical reality is that the opening class presents numerous, widely diverging interests requiring individualised determinations. It does not present the same interest, or anything close,” the judge said.

The judge said this issue could not be remedied, for the purposes of enabling a representative action to proceed, by allowing Smyth to make refinements to the class of claimants she wished to represent.

Even if the action did satisfy the ‘same interest’ test, Master Davison said he would still have exercised his discretion to refuse to allow Smyth’s case to proceed as a representative action.

In this respect, the judge cited concerns about Smyth’s true motivations for bringing the action, where she claimed to be motivated by a desire to secure redress for consumers but for which she had obtained a High Court order entitling her to 24% of any compensation recovered from the litigation, the cost of which to her was being underwritten by her employer. The judge also identified the fact there are other routes through which airline passengers might claim compensation for cancelled or delayed flights – including by exercising rights they have under UK consumer law and making use of consumer complaints procedures the airlines themselves have established.

Grierson said: “The judgment of the High Court highlights that not all flight delay or cancellation claims are the same. This provides helpful support and clarity to the airline industry that the court recognises that flights are cancelled or are delayed for different reasons, and that liability for compensation needs to be considered on a flight-by-flight basis. Airlines will also welcome the assessment of Master Davison 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.”

Hawthorne said: “Delayed flight compensation is a special case because the government considered and decided against implementing an automatic compensation scheme when it gave effect to the EU regulation which created the right to compensation. The judge commented that this claim would ‘…in practical terms be forcing the airlines to implement the automatic compensation scheme for which Parliament did not provide’.”

“If government policy is a red line for representative actions, then the next line to test will be claims that interact with regulatory policy, where the argument would be that where a regulator has chosen to act the courts should not allow a different form of mass action to run in parallel,” he added.

“Consumer protection is nowadays a statute-based part of the law, supplemented by regulation, which together represent the current balance of interests as set by the government. In this context the courts should be cautious in using their flexible powers to allow novel claims which do not originate from within the codified law,” Hawthorne said.

Barker said: “This case highlights some very problematic issues which arise in the context of the commercial models used to fund opt-out class actions. A remarkable feature of the case is that the claimant had obtained an order from a different judge at an earlier stage which apparently sanctioned her entitlement to 24% of sums recovered on behalf of the class. The judgment indicates that this order was obtained without any notice to the defendants and Master Davidson appears to have had very limited information about the background circumstances. On its face, this arrangement could have entitled the claimant to an extraordinary amount of money, in excess of £70 million, had the case proceeded and been successful.”

“Recent judgments have emphasised that the representative action procedure is intended to be a flexible vehicle and to move with the times. However, this case illustrates that the representative action procedure does not have any of the machinery or guardrails which would be needed in modern opt out class action litigation in order 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 in relation to genuine legal wrongs rather than securing a windfall for those involved in bringing the action,” he said.