The Dekagram 5th December 2022

Articles, News | Mon 5th Dec, 2022

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 satisfy the court that what had originally been submitted via the portal was valid, and therefore constituted a ‘claim’ in accordance with the terms of the contract.

How did such a case end up in the Court of Appeal? The principal issue on first appeal, and subsequently on which permission to appeal to the Court of Appeal was granted, was a burden one – was the Deputy District Judge right that it was incumbent on the Claimants to establish the contents of what they had originally submitted via the online form? Or was it for the Defendants in relying on the contractual term to prove that it had been breached?

However, by the time Males, Birss and Snowden LJJ got round to considering the question, a number of new facts had come to light which meant that, by then, it had become ‘manifest […] that the appeal should be allowed’. The new facts were:

• The procedurally restrictive clause which was before the Deputy District Judge was not the one applicable at the time. The applicable clause still required a claim to be made direct to the airline, but use of the portal was discretionary;
• The Claimants had submitted their forms via a third party claims management company;
• There had been a demonstration at the hearing before the first appeal court of what the online form would allow and what it would not – principally it would not accept ‘gibberish’ in a booking reference field;
• The Defendant had (inadvertently within its first submitted skeleton argument) set out evidence that the data from its database revealed the Claimants had likely mixed up their names and booking references in their original submission;
• The Defendant had written a letter to the Claimants two weeks after the automated email rejection in which it was clear that the Claimants’ correct booking details had by then been identified;
• This letter was in response to an email the Claimants had themselves sent two days earlier to the Defendant which attached copies of their booking documentation.

Although a Ladd v Marshall application for fresh evidence had only formally been made by the Claimants in respect of point (v) above, the Court considered that it would receive all six of the above points of evidence pursuant to CPR 52.21 on the basis that they were all credible and would have an important influence on the result. There appeared to be both error and reliance on new points on both sides.

Having allowed the new evidence, the case no longer turned on any question of law. The Claimants had complied with the relevant term as the evidence showed they had made a claim direct to EasyJet. The court therefore did not officially determine the ‘important point of principle’ which led the case to them in the first place – who had the burden of proving what had been submitted on the online form – though Lord Birss did obiter offer a half-answer to the question by expressing the view that ‘a system which produces 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, risks itself amounting to a material obstacle in the way of passengers making claims, contrary to the Regulation’.

Given the manner in which the final outcome was reached, Birss and Males LJJ gave a strong indication that the Claimants/Appellants would be unlikely to recover their usual costs on the successful appeal.

The simplicity of such a case finding itself before the highest appellate court of England and Wales gives a salutary reminder of the danger-paved road in flight delay claims.

About the Author

Tom Yarrow was called in 2018. Before joining chambers Tom was a civil servant working in various government departments, including as a policy advisor on the UK-EU Withdrawal Agreement at the Department for Exiting the European Union. During pupillage he worked with the Government Legal Department, practising in public law in the fields of public international law, justice and security, human rights and immigration. He has regularly appeared in judicial review proceedings for the Secretary of State for the Home Department, and as a member of the Attorney General’s ‘junior junior’ scheme, he is able to take instructions directly from government clients. He now practises in all of chambers’ practice areas and is an enthusiastic and valued member of the travel team.

Some Thoughts on the Ogden Tables 8 and Handicap on the Labour Market

Tables 3 to 18 of the main Ogden Tables are used for calculating loss of earnings and take no account of risks other than mortality.

In the good old days (when some used to work out future loss multipliers by dividing the number of years by 2 and adding 1…yes…really), geography was the additional factor.

However, research by Professor Verrall et al and Dr Wass demonstrated that the key issues affecting a person’s future working life are in fact age, sex, employment status, disability status and educational attainment which led to the use of the reduction factors, Tables A to D.

However, it’s important to appreciate that these Reduction Factors are based on data from Labour Force Data Survey  1998-2003 (i.e. c. 20 years ago), since:

“At present, this is the best data we have. . Unfortunately, the experts from Cass Business School do not have capacity to update their research at this time, although it is hoped that, if the necessary funding is secured, this is something that can be commissioned for a subsequent edition of the Tables.” [Para 15 of intro to Ogden Tables]

This gives rise to the potentially odd situation that the Court would in late 2022 be assessing future losses on the basis of data which is 20 years old already in respect of losses which could continue to be suffered for a further 30+ years, notwithstanding the changes in society, increasing technology and changing attitudes to disability that have taken place in the last two decades and will doubtless continue in future decades.

The Chairman’s Introduction to the 8th edition also states:

“At the time of writing, the UK remains under lockdown and the future remains uncertain. The restrictions are slowly easing. However, there is no doubt that the long-term and far-reaching impact of Covid-19 on life expectancy, employment prospects and the economy will need to be considered in future editions of these Tables.“

Can we still use the Smith v Manchester method of calculating handicap on the labour market instead of Ogden 8?

The guidance notes themselves note that ‘there may still be cases where a conventional Smith v Manchester award is appropriate’ (at 45(6)).

If a Claimant is not “disabled” within the Disability Discrimination Act definition, then the Ogden Tables 8th edition separate multiplier will not be applied to the claimant’s residual earning capacity and a separate SvM or Blamire claim may be made.

Is the Claimant able to pursue “his chosen career with virtually no hindrance from his disability ?” In In Billett v Ministry of Defence [2015] EWCA Civ 773 the Court of Appeal considered whether an Ogden or Smith & Manchester approach was more appropriate where the claimant had suffered a minor disability as a result of the accident, but was earning at his pre-accident rate. At first instance his award was calculated as per the Ogden Tables. On appeal, Jackson LJ stated that the application of the Ogden tables would result in an award of approximately £200,000 for the Claimant and that this was ‘hopelessly unrealistic’. Given he was pursuing his chosen career with virtually no hindrance, a Smith v Manchester award would be more appropriate.

Thus, the conclusion in the case was that the Claimant’s award for loss of earning capacity was reduced by close to £50,000 –approximately half of the total awarded by the judge under the reduction factor method.

In Irani v Duchon [2019] EWCA Civ 1846 the Claimant appealed against a judge’s decision to adopt a Smith v Manchester/ Blamire award approach instead of the multiplier/multiplicand award he sought.

The Claimant was an Indian National who had moved to the UK in 2010. His leave to remain was set to expire in 2020. He suffered serious injuries to his leg and elbow. Partially as a result of his injuries, the Claimant was made redundant and due to the break in the continuity of his employment, he was unable to obtain indefinite leave to remain in the UK.

The Judge ignored the Claimants handicap claim based on the Ogden Tables (which would have led to an award of c. £1,259,256) as he considered a multiplier/multiplicand approach would lead to an unreal result given the inadequacy of evidence relating to the residual earning capacity, and uncertainty over whether the Claimant would in fact return to India. Thus he awarded him a £30,000 Smith v Manchester award; and a £150,000 Blamire award.

The Claimant’s evidential case was ‘based on a letter from a friend, a snapshot of unsuitable jobs presently available from one Indian website and various assertions made by the Claimant’  and it may not be surprising that the judge concluded that there was no proper evidential basis for residual earnings. There was also uncertainty over whether the Claimant would in fact return to India, and therefore whether his likely earning capacity in India was relevant.

While the general method of using a multiplier and multiplicand was to be preferred over the broad-brush approach of a lump sum award the Judge had been entitled to find that there was no real alternative to making a lump sum award.

Finally, in Inglis v MoD [2019] EWHC 1153 the Court preferred the multiplier/multiplicand approach over the Smith v Manchester lump sum award as the uncertainties in an ex-Marine’s hearing loss case were not so many so as to preclude the conventional approach.

However, the judge did adjust the reduction factors to be applied to the multiplier to take account of Mr Inglis’ individual characteristics, as he found he was notably hard-working, his disability did not affect his mobility and he had been in work since he had left the Marines.

“A Smith v Manchester award will be appropriate where there are many uncertainties which mean the multiplier/multiplicand method cannot be used and the matter is one for a broad judgment. Such a circumstance will be where the Claimant has a disability within the meaning of the Ogden Tables, but it is one with a minimal impact on the Claimant’s ability to carry out his employment. In such a case, any adjustment to the Reduction Factors (RF) would be a matter of broad judgment. The RF may be adjusted where evidence is available, and the broad judgment is not required. The RFs are averages based on population data and may be adjusted upwards or downwards from the starting point derived from Tables A to D, if there is evidence to point to such changes for the particular Claimant.”

About the Author

Cyrus Katrak was called in 1991 and acts for both Claimants and Defendants in all areas of personal injury litigation. He primarily focuses on brain injuries, fatal accident claims and accidents causing injuries of maximum severity. He has also acted in numerous amputation cases, those involving chronic pain and giving rise to unusual liability and causative issues.