Airline pilots denied opportunity to join English group proceedings due to solicitors’ negligence awarded damages

About this case:

• Citation:
  [2025] CSOH 28
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Richardson

Jonathan Gough and Lee Montague-Trenchard, who were both at one time employed by Airtours, later known as Thomas Cook, as first officers, bought sought to instruct Cannons Law Practice on the basis that their careers were cut short by exposure to toxic substances in the cockpit. As many of the circumstances of the two cases were common to both, the cases were heard concurrently before the same judge.

The cases were heard by Lord Richardson in the Outer House of the Court of Session. Smith KC, Black, and C Smith, advocates, appeared for the pursuers and Springham KC, Tait, and Linday, advocates, for the defender.

Far-reaching consequences

Each of the pursuers, who had their flying medical certificates suspended in 2005 and 2012, claimed to suffer from Aerotoxic Syndrome, a condition not recognised by the International Classification of Diseases said to be caused by exposure to toxic fumes on a daily basis while working as a pilot. After the second pursuer got in contact with Mr Frank Cannon of the defender, both pursuers became clients of the firm. Ultimately, no claims were brought by the defender against either of the pursuers’ employers.

The defender admitted breach of duty, in particular admitting that it should have taken a detailed precognition from each pursuer within three months of being instructed. It also admitted it should have recognised that the likely jurisdiction for any claim by either pursuer would be England, with a possible further claim in the UAE for the second pursuer against Etihad, that there was a material risk that limitation arguments might be raised by prospective defendants, and that it was important to take urgent steps to reduce that risk.

It was noted that a group claim had been brought by around 220 pilots and cabin crew to the High Court in London on the grounds of ATS against various defendants, including the insurers of Thomas Cook Airlines, due to be heard in 2025 or 2026. A witness for the pursuers opined that had they contacted an English solicitor within the limitation period, they would have formed part of this cohort.

Counsel for the pursuers submitted that the defender had failed to mount a proper challenge to the evidence of their expert witnesses and had not at any time suggested their symptoms were not genuine. If those symptoms were causally related to their working conditions, they would have been entitled to compensation. A series of “soft” pointers were identified as demonstrating their chances of success, including the views of Mr Cannon and other lawyers and evidence of other settled ATS claims in the USA and Germany. They estimated their chance of success at 80 per cent.

For the defenders it was submitted that the pursuers had not provided sufficient evidence that they would have been able to issue and pursue proceedings in England. The notional trial that they could have been part of had not yet taken place, and the court should have regard to the novelty and unprecedented nature of the claims, which had potentially far-reaching consequences for the airline industry.

Close-knit group

In his decision, Lord Richardson said of the English group proceedings: “I do not consider the fact that the notional trial date is in the future, whilst admittedly unusual, removes all the other obstacles in the way of the pursuers proving the underlying claims against their former employers which they say they have lost the chance of doing. The fact remains that the pursuers’ former employers are not parties to this litigation which is being conducted in a different jurisdiction. That fact in itself gives rise to obvious practical difficulties for the pursuers, for example in relation to the recovery of evidence from their former employers.”

However, he continued: “On the pursuers’ case, as a result of the defender’s negligence, the pursuers have been prevented from pursuing their underlying claims as part of the ongoing collective proceedings. As a result, on this hypothesis, they have been denied the undoubted advantages in investigating and prosecuting their claims that being part of the collective proceedings would have provided. In my opinion, in the particular circumstances of the present cases, this factor, if established, weighs in favour of the pursuers not being subjected to a trial within a trial in respect of their underlying claims.”

Considering what the pursuers would have done if properly advised, Lord Richardson said: “It was apparent from the evidence that both of the pursuers were, at the time, part of a relatively close-knit and organised group of pilots and air crew who considered that they suffered from ATS. This was apparent from the obvious friendship between the pursuers as well as the way in which the pursuers engaged with Mr Cannon on a collective basis.”

He added: “I am satisfied on the balance of probabilities that, had the pursuers begun to search for alternative representation in July 2013, they would have, via the informal network of those who claim to have been affected by ATS, found their way into the initial group of claimants who, in reality, raised proceedings towards the end of 2014. I consider it more likely than not that the pursuers would have been able to instruct either O H Parsons or Thompsons and would, as they did in reality, have obtained retrospective support from Unite.”

Lord Richardson concluded on the percentages: “Taking account of the very significant uncertainties I have identified in relation to foreseeability, breach of duty, and causation, I consider that [80%] greatly overstates the chances of success which the pursuers lost. In particular, in light of the remaining uncertainties, I do not consider that those prospects can be assessed as being greater than 50%. Equally, I consider that the defender’s assessment of 20% significantly underestimates the chances that the pursuers have lost.”

The court therefore found for the pursuers and assessed each pursuer’s lost chance at 40%. Considering the pursuers’ individual submissions on quantum, he awarded £24,762.80 to Mr Gough and £1,159,094.74 to Mr Montague-Trenchard.