Paola Dore & Anor v EasyJet Airline Company Ltd

A contractual requirement that passengers first submit flight-delay compensation claims directly to an airline is lawful only if it does not create a material or real obstacle to compensation rights under Article 15 of Regulation (EC) No. 261/2004. A passenger may receive help from a third party, including a claims handler or solicitor, when using an online portal, provided the claim is made in the passenger’s name. Where portal use is optional, accurate information later supplied to the airline can satisfy the contractual precondition. Automated systems should allow passengers to inspect and correct entered data, since a system that prevents this risks creating a material obstacle.

The appellants claimed €250 each for a flight delayed by seven hours. EasyJet relied on its terms of carriage, which required passengers to submit compensation claims before commencing proceedings. A Deputy District Judge dismissed the claims, finding that no sufficient online claim had been made. HHJ Clarke dismissed the first appeal. On second appeal, the Court of Appeal considered whether the appellants had complied with the contractual condition, whether a third party could submit a claim on their behalf, and whether fresh evidence should be admitted. The central issue was whether the appellants had provided the airline with sufficient claim information more than 28 days before issuing proceedings.

Appeal allowed. The Court of Appeal admitted the fresh material, including the airline’s database information and correspondence, and decided the appeal on the enlarged evidential record.

1. Applicable legal principles. The court accepted that the compensation entitlement under Article 7 of Regulation (EC) No. 261/2004 continued after the United Kingdom’s exit from the European Union, as confirmed in Lipton v BA CityFlyer [2021] EWCA Civ 454. Following Bott & Co Solicitors Ltd v Ryanair DAC [2019] EWCA Civ 143, Article 15 concerns matters of substance, but there is no absolute distinction between substance and procedure. A prescribed procedure is unlawful only if it places a material or real obstacle in the passenger’s path.
2. Direct submission. The word directly in the relevant conditions did not prevent a passenger receiving assistance from a friend, solicitor or claims-handling company. A third party could access the portal and submit the claim in the passenger’s name. A contrary construction would itself create a material obstacle and would be ineffective.
3. Application. The relevant version of clause 19.6.1 stated that claims may be submitted through the portal. An attempt had been made to submit claims on the appellants’ behalf. Full and accurate information was then provided by solicitors, and by 26 April 2021 EasyJet had identified both passengers, their flight and the correct booking references. The contractual requirements were therefore satisfied at the latest by that date. Proceedings were issued more than 28 days later, so EasyJet had no defence based on clause 19.6.
4. Fresh evidence. CPR Part 52 rule 52.21(2) established the general rule against receiving evidence not before the lower court, but the discretion was governed by the overriding objective. The principles in Ladd v Marshall [1954] 1 WLR 1489, as explained in Terluk v Berezovsky [2011] EWCA Civ 1534, remained relevant considerations rather than rigid rules. In the unusual circumstances, the evidence was admitted.
5. Guidance. The lower courts were not criticised on the evidence then available. However, where an airline relies on inaccurate portal data, a properly formulated request should be made for relevant retained data, rather than introducing evidence incrementally on appeal. Males LJ added that an automated system should explain compulsory use, permit saving of claims, explain rejection for incorrect data, and make such rejection clear in its automated response. Costs might not follow the event.

1. Court of Appeal (Civil Division): On second appeal, allowed the appeal and held that the appellants had complied with EasyJet’s contractual claims procedure.
2. County Court at Oxford: HHJ Clarke dismissed the appellants’ appeal from the decision below.
3. County Court at Luton: Deputy District Judge Abrahams dismissed the compensation claims on the basis that clause 19.6 had not been satisfied.