The Dekagram: 30th March 2026

This week Robbie Parkin relates a convoluted tale of case management woe, whilst Imogen Todd considers another decision of the Court of Justice of the European Union relating to air travel.  The team will be taking a much needed break over the Easter bank holiday weekend, but we’ll return thereafter with more tales from the coalface – we hope our readers will be able to take some time to relax, too, over the four day weekend.

Case Management and Capacity

Mohammed v Ali & Anor [2026] EWHC 401 (KB) brings some order to the formerly somewhat anarchic case management to be expected when litigation capacity is in dispute.

Unfortunately for the parties, that arose because first, just about everything that could go wrong, did; and second, because the parties seemed to go out of their way to make both of their cases about as equally unattractive as humanly possible.

The Claimant suffered brain injuries in a road traffic accident. The named Defendant was an uninsured driver who collided with a vehicle containing the Claimant while attempting to escape a police chase. The action was defended by the Motor Insurers’ Bureau.

The Claimant’s case was that he had lost litigation capacity as a result of the injuries. A litigation friend, his mother, was appointed.

So far so good, or so it appears. The Defendant undertook covert filming of the Claimant, and made enquiries with the DWP about the disclosures made to them by the Claimant’s mother (i.e. his litigation friend).

This surveillance suggested that the Claimant had been exaggerating his injuries in a fundamental way.

To make matters worse, the enquiries with the DWP suggested that the Claimant’s mother/litigation friend had separately been dishonest to the DWP about the extent of the Claimant’s injuries, presumably with a view to improving the allowance paid to her on the Claimant’s behalf by the DWP.

The Defendant, unsurprisingly, wished to plead fundamental dishonesty and questioned whether the Claimant lacked capacity at all.

The Claimant responded by first applying for an order substituting his mother as litigation friend with his sister.

He then withdrew that application, alleging that there had been no basis for the allegations against his mother, as she had simply misunderstood what she was being asked to describe to the DWP.

This litigation approach, as the Court put it tersely, “did not impress the Recorder”. But the question was how the now-disputed question of litigation capacity should be dealt with.

The Recorder decided that he would not appoint a litigation friend on a preliminary basis, but would list the claim for a preliminary hearing on the question of capacity.

The hearing ultimately resulted in a finding that the Claimant did lack capacity, and that his sister would be substituted as litigation friend.

Rather curiously, the Defendant did not appeal against either substantive order, but against the procedural decision to hold a preliminary hearing on capacity at all.

This was, it appears, a tactical decision- in response to the obvious question of “what Order the [Defendant] was asking this Court to make if the appeal is granted”, it was clear that the Defendant was really mounting a collateral attack on the medical evidence supporting the Claimant’s claim to lack capacity.

Nevertheless, the question before the court was a procedural one. The answers were not clear- as the Court put it “He [the Recorder] reasoned that there had been significant differences in previous Courts’ approaches to determining litigation capacity which he described as “ad hoc””.

Ultimately, however, the court found that the Recorder had misdirected himself and the appeal was allowed. The correct approach was that described in Folks v Faizey [2006] EWCA Civ 381, which, as the Court found, remained good law.

A court should appoint a litigation friend on an interim basis, so long as there was sufficient basic evidence on the Claimant’s part, and the correct forms had been completed. It was inappropriate to list a separate preliminary hearing to deal with capacity issues. Any concerns about capacity were then to be reserved and determined at trial.

Generally speaking, the other party is not involved in a capacity decision and is not prejudiced by it. These normal rules might not apply where there is prejudice. The Court did not go on to define those circumstances, but it seems to the author that this might arise where a) costs are incurred which cannot be recovered or b) trial is delayed by abusive use of the litigation friend system.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus. 

Air Traffic Control and Denied Boarding

Air traffic control is vital to modern aviation. It ensures aircraft can travel safely and efficiently. Controllers manage the movement of planes in the air and on the ground, giving precise instructions on altitude, speed, direction and other parameters to maintain safe separation. Controllers are dependent on their technology and communication systems. Any error can have serious consequences.

On 12 February 2026, the European Court handed down judgment in Republik Österreich v Austrian Airlines AG, Case C‑408/24. The judgment interprets the regulations on air navigation services and airspace management within the Single European Sky framework.

The case relates to an incident on 28 August 2016. There was a technical failure of the Aeronautical Fixed Telecommunication Network server (‘the AFTN server’), which provides for the transmission of air traffic-related technical information between airlines, Austro Control (an LLC and Austrian federal agency responsible for safe air navigation, traffic control, and aviation regulation within Austrian airspace) and Eurocontrol (the European coordinating body established in Brussels).

Austrian Airlines reported that the server failure caused 60 flight cancellations and financial damage of around €375,000.

Austro Control was assumed responsible for the failure of the AFTN server for the purposes of this case, on the basis it failed to have in place, as a preventive measure, the technical and personnel measures necessary for the proper functioning of that server.

In terms of the law, the Single European Sky is governed by a set of regulations. Regulation (EC) No 549/2004 establishes the framework for the single European sky, focusing on safety, sustainability, and performance. Regulation (EC) No 550/2004 sets common requirements for air navigation services, including safety, quality, and liability standards. Article 2(4) of Regulation (EC) No 549/2004 defines “air navigation services” and Article 8 of Regulation (EC) No 550/2004 sets out the designation of air traffic service providers. Notably, Article 8(2) provides that Member States shall define the rights and obligations to be met by the designated service providers. Under Austrian law, public bodies shall be liable for any unlawful and culpable damage to property or persons caused to any legal subject by persons acting as representatives of the Federation.

Austro Control argued that the purpose of the Regulations is air safety, and that Austrian Airlines could not rely on the Regulations for financial compensation.

The court concluded that the Regulations must be interpreted as meaning that the provisions are intended to protect airspace users from material damage caused by a culpable failure by the air traffic service provider to comply with its obligations under those provisions.

This means that airspace users, such as Austrian Airlines, are protected under EU law against financial damage resulting from negligence by air traffic service providers, provided the failure is culpable and violates the obligations set out in the regulations.​ It is now up to the national court to determine whether the Republic of Austria can be held liable for the damages suffered by Austrian Airlines due to Austro Control’s alleged negligence.

Beyond providing financial protection for airlines, this case serves as a clear reminder that corners must not be cut when it comes to air traffic control

About the Author

Imogen Todd was called in 2020. Having completed pupillage at Deka Chambers, including a period under the tutelage of Dominique Smith, she was taken on in October 2025. She now undertakes a broad civil practice, with a strong track record in personal injury, travel claims, inquests, stage 3 hearings, infant approval hearings and credit hire litigation.