English High Court strikes out proposed group action for over 116,000 delayed or cancelled UK flights

About this case:

• Citation:
  [2024] EWHC 2173 (KB)
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  Master Davison

Claire Smyth, the proposed representative party, claimed British Airways and easyJet Airline Co Ltd did the bare minimum to inform passengers of their rights under retained EU law. The defendants sought an order striking out the claim, or an order directing that the claimant could not act as a representative.

The case was heard by Master Richard Davison. Hugh Preston KC and Conor Dufficy appeared for the claimant. Brian Kennelly KC, Tom Coates and Aislinn Kelly-Lyth appeared for the first defendant and Charles Béar KC and Giles Robertson for the second defendant.

Antithesis of a champion

On 18 June 2022 the claimant was due to take a BA flight from London Gatwick to Nice. BA cancelled the flight on 14 June, furnishing the claimant with a right to claim compensation of £220. Both BA and easyJet maintained portals through which passengers could claim compensation free of charge, however the claimant instead instructed Mr Preston, who wrote a letter before action on behalf of a very large class whose members broadly comprised persons who had booked a flight with BA or easyJet scheduled to depart from, or arrive in, the UK during the period from 1 December 2016 to 31 August 2022 and whose flight was then either cancelled or delayed by three hours or more.

The claim was funded by Ms Smyth’s employer, John Armour, an Australian-born resident of Monaco who appeared as an interested party for funding purposes. While the exact nature of the funding arrangement agreed with Mr Armour was not disclosed to the court, on 24 May 2024 the claimant obtained an order from the High Court declaring she was entitled to deduct an aggregate sum equivalent to 24 per cent of any recovered compensation comprising a funder’s fee for Mr Armour along with legal fees.

It was submitted for the defendants that there was no common issue in which the proposed class members had the same interest. Ms Smyth was seeking to aggregate millions of individual passenger claims raising many discrete issues concerning the entitlement to compensation under the Regulation. Qualifying passengers had a free, easy-to-use direct claim procedure available through the airlines.

The defendants further submitted that the real motive force behind the claim was Mr Armour, who stood to recover almost a quarter of the total sum of compensation. Mr Armour was described as “the antithesis of a consumer champion” and, because Ms Smyth was his employee, there was an obvious danger that his influence would render her an inappropriate class representative.

For the claimant it was submitted that there was a widespread lack of awareness of rights and a lack of transparency by the airlines, who did the bare minimum to inform passengers of the compensation schemes they operated. There was no evidence of any inappropriate control by Mr Armour, and the deductions from the compensation had already been approved by the Chancery Division.

Better option

In his decision, Master Davison said of the interests of the proposed class: “There is a point at which interests diverge so widely that the class members cannot be said to have the ‘same interest’. This case trespasses a long way beyond that point and this was expressly or implicitly acknowledged by Mr Preston KC’s proposal periodically to trim or re-visit the class by amendment so as to maintain compliance with the rule.”

He added: “To accept that successive amendments to the class will be required is to admit that at the outset the claim is not properly constituted as a representative action. It is also to admit that the claimant does not and cannot ‘promote and protect the interests of all the members of the represented class’ and that there is no declaration or finding available that ‘would be equally beneficial to every member of the class’.”

In determining the true motive behind the claim, Master Davison said: “There has been and there continues to be a lack of transparency regarding Ms Smyth’s motivation, funding and suitability. On the material before me, I do not accept that her motivation lies in a desire to secure redress for consumers. She has had no prior involvement in such activities. Her evidence suggests or is only really consistent with that interest having been sparked by the chance (though common enough) experience of her cancelled flight. But she has not explained how and by what process that led her to the very considerable undertaking of a representative action brought by her on behalf of many millions of others.”

He concluded: “One consideration is whether allowing a representative action to go forward would promote access to justice. It is hard to see how these aims would be served by this action when the represented parties have an alternative remedy which is easily accessed at no cost at all. The contrast is between, on the one hand, a representative action imposing very significant burdens of cost on both the defendants and the represented parties and, on the other, individual claims imposing modest costs on the airlines and no cost at all on the represented parties. It seems obvious that the latter is the better option.”

The action was therefore struck out, and Master Davison directed that the claimant may not act as a representative.