British Airline Pilots' Association & Anor v British Airways Cityflyer Limited

An interim declaration determining parties’ contractual rights is a very exceptional remedy. The court should ordinarily determine private contractual rights finally, even if by summary judgment, rather than provisionally. If an interim answer is permissible, the applicant must show a high degree of assurance in the merits, broadly comparable to the threshold for mandatory injunctive relief. The court must also assess the balance of justice or injustice, including the risk that an interim order may later prove wrong and cause uncompensated harm.

BALPA and a pilot applied for an interim declaration under CPR 25.1(1)(b). They alleged that British Airways Cityflyer Limited had breached pilots’ employment contracts by rostering duties beginning before 0500 without prior agreement under the collectively agreed Pilot Schedule Agreement.

The defendant disputed the contractual construction and raised issues concerning incorporation, variation, implied terms, reasonableness, standing and the suitability of interim declaratory relief. The application was heard urgently before the proposed duties began. The central questions were whether the court should give an interim answer on the contractual rights and, if so, whether the evidence and balance of justice justified doing so.

1. Application refused. The court refused the interim declarations and directed that the substantive contractual dispute proceed to a speedy trial.
2. An interim declaration concerning private contractual rights is a very exceptional remedy. The court does not ordinarily take an interim view of whether contractual rights exist. Such rights ordinarily require a final determination, although summary judgment may provide a sufficiently speedy final answer. A provisional declaration may circumvent the safeguards of summary judgment and create adverse consequences without compensation if it proves wrong. The concern identified in Jakeman v South West Thames RHA was borne out by the rushed procedure adopted here.
3. Even if an interim answer could be given, the applicant would need a high degree of assurance on the merits, comparable to the threshold applicable to mandatory injunctive relief and not materially different from the degree of assurance relevant to summary judgment. The court was not sufficiently assured that the claimants were correct. The defendant’s contractual arguments had more than a fanciful prospect of success.
4. The court also had to consider the balance of justice or injustice. The evidence of harm to pilots from the early duties was weak, whereas the defendant faced potentially substantial operational and financial losses, with no cross-undertaking in damages. That balance independently favoured refusal.

First-instance decision. The judgment does not state any prior appellate decision.