Bott & Co Solicitors Ltd v Ryanair DAC

A solicitor’s equitable right to protection for fees is not available merely because the solicitor has assisted a client to obtain payment. Although issued proceedings are not invariably required, the work must be recognisable as litigation services which promote access to justice in actual or genuinely contemplated litigation or arbitration.

A contractual procedure for claiming compensation under Regulation (EC) No 261/2004 does not infringe article 15.1 merely because it requires an initial direct claim to the airline. It is invalid only if it creates a material obstacle to the passenger obtaining the full substantive compensation due.

Bott & Co Solicitors Ltd acted for passengers seeking fixed compensation for flight delay or cancellation under Regulation (EC) No 261/2004. It usually sent a standard letter of claim after an online eligibility process. Ryanair began communicating with, and paying, Bott’s clients directly.

Bott sought an equitable lien over compensation paid to its clients. It also challenged clause 15.2 of Ryanair’s conditions of carriage, which required passengers to submit an initial direct claim and allow Ryanair time to respond before engaging a third party. The High Court rejected both claims: [2018] EWHC 534 (Ch).

The appeal raised whether Bott’s work gave rise to an equitable interest in the compensation, and whether the contractual claims procedure limited or waived passengers’ rights under the Regulation.

1. Appeal dismissed. The court upheld the refusal of an equitable lien and the conclusion that clause 15.2 was not contrary to article 15.1 of Regulation (EC) No 261/2004.

2. The equitable remedy, although often called a solicitor’s lien, is not a possessory lien. It is an equitable and discretionary protection for a solicitor’s entitlement to charges. The remedy exists to promote access to justice by enabling solicitors to provide litigation services on credit, rather than to give solicitors a general privilege over money obtained for clients.

3. The decision in Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd [2018] UKSC 21 established that formal proceedings need not have been issued. It displaced any bright-line rule to that effect suggested by Meguerditchian v Lightbound [1917] 2 KB 298. However, the client must remain responsible for the solicitor’s charges, and the relevant services must still be litigation services which promote access to justice. Services of the kind provided in actual or genuinely contemplated litigation, including arbitration, may qualify.

4. Bott’s usual work on an undisputed Regulation claim did not qualify. The claim was mechanical and formulaic, the compensation was fixed, and Bott’s evidence showed that almost all claims succeeded without proceedings. Until Ryanair disputed a claim, there was no real likelihood of proceedings. Writing a claim letter or helping a passenger complete an online form therefore did not give Bott an equitable interest in compensation paid in response. Different considerations could arise once a claim was disputed.

5. Article 15.1 is concerned with protecting substantive passenger rights. It does not prohibit every contractual requirement governing the manner of making a claim. A procedural requirement falls within the prohibition only if it places a material or real obstacle in the passenger’s path to full compensation, or produces a lower recovery.

6. Clause 15.2 imposed no such obstacle. Ryanair’s direct online process was straightforward, required little effort, allowed third-party advice, and imposed only a limited period for a response. A passenger remained free to instruct Bott or another representative after making the initial claim. The clause neither waived nor materially limited the passenger’s rights.

• Court of Appeal (Civil Division) — dismissed Bott’s appeal and upheld the High Court’s refusal of an equitable lien and its conclusion on clause 15.2: [2019] EWCA Civ 143.
• High Court of Justice, Chancery Division — Mr Edward Murray, sitting as a Deputy Judge, rejected Bott’s claim to an equitable lien and its challenge to Ryanair’s claims procedure: [2018] EWHC 534 (Ch).