EasyJet’s latest effort to cut out solicitors from flight delay claims has failed, after the Court of Appeal found shortcomings in its automated system.
Though the court upheld the role of automated systems for flight claims in principle, it said EasyJet’s failure to allow a customer to see what data had been entered so they could correct errors put a material obstacle in their way, in breach of the relevant regulation.
Lord Justice Males also observed how EasyJet could pay flight delay compensation without needing passengers to claim but chose not to in the hope that some would not.
The two claimants had valid claims for €250 each subject to the question of whether they first applied for the compensation directly to Easyjet, using its online dispute resolution system.
EasyJet’s terms and conditions required passengers to submit claims “directly” and give it 28 days to respond to them before engaging third parties to claim on their behalf.
In July 2019, the claimants’ solicitors, Surrey law firm Lovetts. wrote a letter before action to EasyJet. The airline replied by taking the point that no claim had been submitted via the online portal.
This was finally done in April 2021 by an employee of claims business Flightright and the system generated an automatic email response which stated that the airline had been unable to find the booking and asked the passengers to resubmit their claim.
Giving the lead judgment, Lord Justice Birss observed that the email did not identify any particular error in what had been entered or set out what had been entered; it simply asked them to start again. The system did not allow customers to see what information had been entered previously.
Only after the decisions at first instance and on first appeal – which went in favour of the airline – did it became clear that the booking references of the two passengers had been erroneously transposed, meaning the names entered did not match the booking references.
Birss LJ agreed with the ruling in Bott v Ryanair that “airlines are entitled to require the use of a well-designed online dispute resolution portal for those passengers who are capable of using them”.
He continued: “However, this dispute has shown that even people who are experienced in using such systems can make mistakes, and the automatic email response in this case was not helpful because it did not spell out what data had actually been entered in the first place.
“Had it done so, the submitter could have rechecked and correctly entered the data, and this litigation would likely have been avoided. No doubt the airline would rather not go to the effort of coding the system to do that, but I cannot imagine that it would be difficult to do.”
The system here risked “itself amounting to a material obstacle in the way of passengers making claims”, contrary to the regulation.
Snowden and Males LJJ both agreed, with the latter saying “we need not have too much sympathy for EasyJet”.
He explained: “Its 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.”
But he accepted that easy-to-use automated online systems for handling flight delay claims was “strongly” in the interests of passengers so they could receive “prompt payment without incurring legal fees or needing to pay claims companies”.
They were also in the public interest “because such claims should be capable of resolution in this way and court proceedings should only be necessary where there is some issue which only a court can decide”.
He laid out four conditions for such a system:
- The airline’s terms and conditions must make clear to the passenger that the use of the online system is compulsory, and must be used before court proceedings are commenced;
- The passenger should have the ability – and be strongly encouraged – to save the submitted claim;
- The system should explain that certain details incorrectly entered lead to the claim being rejected; and
- If a claim is rejected on the ground that the claim details have not been correctly entered, the automated response sent by the airline must make this clear.
EasyJet’s system “did not satisfy any of these requirements”, Males LJ said.
He agreed with Birss LJ’s comment that costs should not necessarily follow the event in this case.
“I would urge the parties, in this low-value claim where the costs far exceed the amount claimed, to reach some sensible agreement about costs in order to avoid yet further expense,” Males LJ said.
The court also rejected EasyJet’s complaint that, as the claimants had not made their online claims themselves, they had breached its terms and conditions.
Birss LJ: “Even if the matter was free from authority, I would hold that passengers are entitled to have someone else access the online portal on their behalf and thereby make a claim in their name.
“That other person could be a friend or family member, or it could be a claims handling company or solicitor engaged for that purpose. A claim made that way would be ‘direct’ as that word is used in the conditions of carriage.
“Furthermore if the true construction of the word ‘direct’ would not permit this activity, then it would be a material obstacle in passenger’s path and would be unlawful and ineffective.
“The fact that an airline may prefer it for passengers not to engage a claims handling company at that early stage to use the online portal is irrelevant.”