The Dekagram: 29th January 2024

• Published date: 05 February 2024
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Product Liability & Safety, Trials & Appeals & Compensation
• Law Firm: Deka Chambers
• Author: Henk Soede

This week saw developments in Ryanair's ongoing battle with online travel agencies. On the one hand, Ryanair has cut a deal with Loveholidays and Kiwi, allowing the agents to sell packages including Ryanair flights. On the other, the airline's profit projections for this year are down, partly due to the decision in December of a number of online agents to remove Ryanair flights from sale. And only last week the Irish courts ruled in favour of Ryanair in Ryanair DAC v Flightbox SP ZOO [2023] IEHC 689 in determining that it had jurisdiction to hear a screen-scraping claim against the online agent. Because Flightbox had not entered an appearance before the Irish courts, Ryanair obtained default judgment against them with associated injunctions. It is worth noting that Flightbox has brought a competition claim against Ryanair in the Polish courts and that the submissions it makes in those proceedings would have afforded it a defence to the Irish claim, had it made them in that jurisdiction. We can only speculate as to why it chose not to do so.

This week's Dekagram brings us up to date on representative actions, a growth area of interest and importance to practitioners dealing with claims as diverse as those arising from The Great Refund Saga, product liability and holiday sickness, as well as those quality complaints made by holidaymakers who have the naivety to believe that the AI generated pictures of hotels they see in the brochures of the less reputable operators may bear some resemblance to real life. These cases all require particularly deft case management on the part of both claimants and defendants if costs are not to spiral out of control.

Representative Actions: The Dawn of a New Age?

The main procedural limits on representative actions in English law can be stated briefly:

• A person can bring a representative claim on behalf of a broader class of persons if they have the "same interest in the claim": CPR 19.8(1).
• Where the 'same interest' requirement is met, a defendant may nevertheless seek a direction from the Court that a person may not act as a representative: CPR 19.8(2).

It will be clear from the above that the rules are not prescriptive (in any sense).

The substantive limits on representative actions can be sourced in a body of case law which dates back to the procedure of the Court of Chancery before the Judicature Act of 1873.

The leading modern authority on CPR 19.8 is Lloyd v Google LLC [2021] UKSC 50. In Lloyd, it will be recalled...