Airlines defeat ‘novel’ group action

Claimant Claire Smyth sought to bring a class action on behalf of millions of passengers against British Airways and easyJet, in Smyth v British Airways and another [2024] EWHC 2173 (KB). The claim concerned 116,000 delayed flights and, against easyJet alone, would have been worth £319m.

The claim was funded by John Armour, Smyth’s employer. Smyth was to receive ‘an aggregate sum equivalent to 24% of any compensation received’.

The claimant proposed the class be progressively whittled down through a series of steps to remove ineligible or defended claims.

Master Davison noted the claim ‘raises some novel and interesting points about the permissible scope of a representative action under CPR rule 19.8’.

According to the judge, the airlines argued there was no common issue between the proposed class members, Smyth’s proposals for payment ‘raised insuperable problems’, the airlines already ran compensation schemes, and ‘the real motive behind the claim’ was money. Smyth’s argument was that she wanted to remedy a lack of awareness of consumer rights and lack of transparency by airlines in providing information about those rights, the class had divergent interests but there was no conflict, and the funding arrangements were not disclosable.

Striking out the claim, the judge said the proposed representative action did not meet the jurisdictional requirements of CPR 19.8 ‘because the claimant and the represented parties do not share the same interest and that defect cannot be met by successive amendments to the class.

‘Further, as a matter of discretion, I would not allow the claim to go forward as a representative action because the dominant motive for it lies in the financial interests of its backers, principally Mr Armour, and not the interests of consumers. That motive has translated into a proposed deduction from the compensation available to each represented party which is excessive and disproportionate both in its overall amount and in relation to the available alternative remedies, which would lead to no deduction at all’.