Farah & Ors v British Airways & Anor

A negligence claim should not be struck out where the existence of a duty of care depends on facts yet to be established and falls within an uncertain and developing area of law. A public authority may arguably owe a duty to a person foreseeably harmed by inaccurate information which it supplies to a third party for use in making a decision affecting that person.

Foreseeability, proximity and whether imposing the duty would be fair, just and reasonable require a pragmatic examination of all the circumstances. In a tripartite negligent-statement case, proximity may also be expressed as an assumption of responsibility to the person affected. The absence of direct communication or reliance does not necessarily defeat the claim.

Five Somali nationals purchased tickets from British Airways to travel from Cairo to London. British Airways refused to carry them after a Home Office immigration liaison officer allegedly advised that their documentation was invalid. The travellers were detained at Cairo airport and subsequently deported to Ethiopia.

They claimed against British Airways for breach of contract and against the Home Office in negligence. His Honour Judge Riddle struck out the negligence allegations against the Home Office because he considered that there was insufficient proximity to establish a duty of care.

The issue on appeal was whether the claim was bound to fail, or whether the circumstances in which the liaison officer supplied information to the airline required investigation at trial before proximity, assumption of responsibility and policy could properly be determined.

1. Disposition. The Court of Appeal unanimously allowed the appeal. Lord Woolf MR delivered the leading judgment, with which Chadwick LJ agreed. The negligence claim against the Home Office was not bound to fail and should proceed to trial.

2. The three requirements identified in Caparo Plc v Dickman [1990] 2 AC 605 were foreseeability of damage, proximity and whether imposing the proposed duty would be fair, just and reasonable. Proximity and fairness are pragmatic descriptions rather than precisely definable concepts. Foreseeability was conceded. The remaining requirements could not safely be determined without establishing the facts.

3. The absence of direct communication between the liaison officer and the appellants did not necessarily preclude proximity. The case concerned information supplied to an airline in the knowledge that the airline might act upon it to the detriment of identified would-be passengers. Spring v Guardian Assurance Plc [1995] 2 AC 297 supported the possibility of liability despite information being communicated to a third party. White v Jones [1995] 2 AC 207 demonstrated that the law of negligence could fill a remedial lacuna in an appropriate analogous situation.

4. The liaison officer's advice served the connected interests of the Home Office, the carrier and the intending travellers. It could have an obvious and direct effect on those travellers. Those circumstances were capable of establishing proximity or an assumption of responsibility, but their legal effect depended on the facts found at trial.

5. W v The Home Office [1997] Imm AR 302 was distinguished. The alleged advice was not given in the performance of a statutory duty involving the exercise of an immigration officer's statutory discretion. It was an additional liaison activity intended to assist the carrier and others affected by the travel decision.

6. Chadwick LJ emphasised that uncertain and developing questions of duty should ordinarily be decided on facts found at trial. A claim should be struck out only where the court can say with certainty that it is bound to fail. The appeal was allowed with costs here and below; permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The order striking out the negligence allegations against the Home Office was set aside. Costs were awarded to the appellants here and below, and permission to appeal to the House of Lords was refused.

2. Edmonton County Court: His Honour Judge Riddle struck out the particulars of claim insofar as they alleged negligence against the Home Office. He held that the pleaded circumstances disclosed insufficient proximity between the appellants and the Home Office or liaison officer.