The Dekagram 5th December 2022

• Published date: 07 December 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Trials & Appeals & Compensation
• Law Firm: Deka Chambers
• Author: Mr Thomas Yarrow and Cyrus Katrak

This week the team has been reflecting on a recent Court of Appeal case which turned out to be something of an evidential surprise; and on issues around disability and handicap on the open labour market. Both areas in which uncertainty is to be discouraged, we think.

The Denied Boarding Regulation: Dore & Anor v Easyjet Airline Company Ltd [2022] EWCA Civ 1553

A Court of Appeal judgment in a claim worth less than '450 is a rare find. Still rarer is one which is predicated almost exclusively on fact rather than law. But such a cryptid revealed itself recently in the judgment in Dore & Anor v Easyjet Airline Company Ltd [2022] EWCA Civ 1553.

The two Claimants (now Appellants) should have been straightforwardly entitled by Article 7 of Regulation (EC) No 261/2004 ("the Denied Boarding Regulation") to compensation of '250 each for a delayed flight. But with a slightly less catchy title than its theatrical cousin, this ended up as the Denied Boarding Regulation Litigation that Goes Wrong.

The initial facts for the Deputy District Judge were as follows. It was uncontested that the Claimants' flight was delayed so as to give rise to the right to compensation under the Denied Boarding Regulation. The Claimants made a submission for such through EasyJet's online claims portal by filling in a webform. They received an automated response email saying that their booking could not be identified from the information given and requesting that the data be resubmitted; the automated email did not identify what the specific problem was. The Claimants did not make a re-submission, but later issued a claim in the County Court.

EasyJet, as with many airlines, have a clause in their standard conditions of carriage which requires a passenger claiming for compensation under the Denied Boarding Regulation to make a claim direct to the airline through their online claims portal. Readers may remember that the enforceability of a similar clause was considered in the Court of Appeal judgment in Bott & Co v Ryanair [2019] EWCA Civ 143 (it was not an issue for the Supreme Court in the onward appeal). It was determined that the clause in that case did not put a material obstacle in the passenger's path such that it limited or waived their right to compensation under the Denied Boarding Regulation; such a term was enforceable.

EasyJet therefore defended the present claim on the basis that the Claimants had not made the required claim through the online portal since their submission had been rejected as unidentifiable. The Claimants did not have a record of what was originally submitted; and for whatever reason had never sought disclosure from the Defendant of what data might be held on their systems. The Deputy District Judge dismissed the claim on the basis that the Claimants had failed to...