Lovetts Flight Compensation Success In The Court of Appeal
On 2 November 2022 the Court of Appeal heard a case concerning a claim for flight compensation that had been wrongly denied in the lower Courts. Lovetts successfully represented the passengers in seeking to overturn the decision of two earlier courts.
The case of Dore & anr v EasyJet Airline Company Ltd  EWCA Civ 1553 stemmed from a delayed flight on 1 June 2019, where two passengers had booked a flight operated by easyJet. The flight was delayed by 7 hours meaning the passengers were each entitled to compensation of 250 € each.
EasyJet provide an online customer portal designed to allow its customers to submit claims for compensation. In this case, the passengers’ request for compensation was submitted through easyJet’s portal (despite having already having received a request for compensation from Lovetts on behalf of the passengers) by a flight compensation company. Following the request for compensation being submitted the airlines portal, easyJet responded by email and claimed the passengers’ details could not be found and the request for compensation was refused.
Court proceedings were subsequently issued and easyJet filed a defence, claiming the passengers had not submitted a claim via their online portal and had not complied with their terms and conditions, this was incorrect.
The first hearing was held at Luton County Court. At the hearing, easyJet changed their position and conceded that a submission via the portal did occur but the data submitted was probably wrong. They did not disclose the data received nor did they say what data was wrong. Despite this Deputy District Judge Abrahams dismissed the Claimants claim and held that it was likely easyJet had not received sufficient information to process the claim.
The decision of the first instance judge was appealed. At Oxford County Court HHJ Clarke dismissed the appeal on the basis that the burden of proof remains with the Claimant and despite the airline holding the data and failing to disclose what they had received, HHJ Clarke held that the passengers could have taken a screenshot, photograph or printed evidence of the claim being submitted through easyJet’s portal, to evidence that a claim had been submitted.
The decision of HHJ Clarke would have had serious repercussions for all consumers that complete forms and/or place orders/make bookings online. It would have placed an unreasonable burden on consumers to screen shot everything they do online and accordingly it should be deemed a material obstacle. As a result, an appeal was made to the Court of Appeal on the grounds that the decision in the first appeal was wrong and/or unjust due to serious procedural irregularity. Additionally, the decision raised an important point of principle that warranted consideration by the Court of Appeal.
In addition, the Appeal would consider whether the passengers had complied with easyJet’s terms and conditions in submitting a claim directly to easyJet and allowing 28 days to respond, before engaging a third party (Lovetts) to submit a claim on their behalf.
The case of Dore and anr v easyJet Airline Company Ltd was heard in November 2022 by Lord Justice Males, Lord Justice Birss and Lord Justice Snowden.
The Terms and Conditions
The first error arose from the fact that easyJet claimed their terms and conditions had not been complied with. This was incorrect because they were relying on terms that did not apply to the passengers. The terms easyJet had relied on at the first hearing, were terms that had not been incorporated at the time the passengers made the booking.
The Court of Appeal correctly identified that when the passengers booked their tickets, easyJet’s terms and conditions at the time of booking were different to the terms and conditions which were before the judge in the first instance.
Can you instruct someone else to request compensation on your behalf before instructing solicitors to issued court proceedings?
In the present case, the Court of Appeal also briefly considered whether a third party flight compensation company could submit a claim through easyJet’s portal on behalf of the passenger.
Little thought was needed, as it had recently been determined in Bott & Co v Ryanair DAC  EWCA Civ 143 (“Bott”) that a third party could submit a claim on behalf of the passenger. In the present case, the Court of Appeal reaffirmed the earlier finding stating
“even if the matter was free from authority, I would hold that the passengers are entitled to have someone else access the online portal on their behalf and thereby make a claim in their name. The other person could be a friend of family member, or it could be a claims handling company or solicitor engaged for that purpose”.
The Court of Appeal noted that it was irrelevant if an airline preferred its customers not to use a claims handling company on its behalf, passengers are allowed to do so.
The appeal and an issue of public policy
The Appeal Judges unanimously agreed that easyJet had placed a material obstacle in the way of the passengers, by requiring evidence that a claim had been submitted through its portal, when the passengers had no way printing or returning to their submission once it had been sent.
Such a requirement was clearly not in the interest of public policy. It prevented passengers from claiming compensation, which they are entitled to when a flight has been delayed or cancelled.
It was also highlighted that a system such as the one provided by easyJet, which produced automated response emails which do not allow a user to see what data had been recorded as entered (so as to facilitate the correction of errors), risk itself amounting to a material obstacle. The Court highlighted that such a system should provide an accessible record of data entered to assist passengers correct any input errors and make their claim for compensation. EasyJet’s system did not do this. It presented a material obstacle to the passengers obtaining compensation.
Lord Justice Males set out a 4 part test for an online system to achieve the objectives of enabling passengers to claim compensation without difficulty and to receive payment with incurring legal fees or paying claims companies, without putting a material obstacle in the way:
1. The airline’s terms and conditions must make clear to the passenger that the use of the system must be compulsory and must be used before court proceedings are commenced.
2. The passenger should have the ability to save the claim which is submitted and should be strongly advised to do so in case of any issue arising.
3. If it is the case the claim can only be processed if some or all of the claim details are correctly entered on the online form which is submitted and that an error in one or more fields will lead to the claim being rejected, that must be explained to the passenger.
4. If a claim is rejected on the ground the claim details have not been entered correctly, the automated response sent by the airline must make this clear.
Lovetts was successful and the Appeal was granted. Not only did this success protect passengers right by reaffirming the decision in Bott and Co that a flight compensation company could assist a passenger claiming compensation, it also protected all consumers from the burden of having to screen shot everything they do online.
LJ Males in his Judgment stated:
“Its (easyJet) computer knows which flights have been subject to delay and knows the identities of the passengers on those flights. Although there was no evidence about this, it ought not to be difficult for it to contact passengers (or at any rate, those who have made the booking for passengers) who are entitled to compensation, but no doubt it suits EasyJet that a certain percentage of passengers will never bother to claim. So although EasyJet is not required to contact passengers in this way, in a sense any costs incurred in handling the claims of those passengers who do claim can be set against the savings achieved as a result of deciding not to pay compensation unless a claim is made.”
LJ Males correctly identified that airlines save money by not paying out compensation to passengers that do not make claims. Even for passengers who do make claims, airlines make it manifestly difficult in the hope they will drop their claim. That is why Lovetts Solicitors and other flight compensation companies assist passengers by recovering flight compensation rightly due to them.
Lovetts are delighted that the claimants obtained the correct outcome and that justice has been served.