Claire Smyth v British Airways PLC & Anor

A representative action under CPR rule 19.8 requires the representative and represented persons to have the same interest in a claim when the court assesses the application. The court must consider the common issues, likely defences and whether individualised inquiries are required. A claimant cannot cure a failure to satisfy that requirement by progressively removing claims through successive amendments so that only undisputed claims remain. The court may also refuse permission in its discretion where the proposed action is disproportionate, imposes substantial wasted burdens and duplicates accessible individual remedies. The interests and suitability of the proposed representative, funding arrangements and proposed deductions are relevant to that discretionary assessment.

The claimant sought to act under CPR rule 19.8 for a very large class of passengers whose British Airways or easyJet flights had been cancelled or delayed and who might be entitled to fixed compensation under EU Regulation 261/2004. The proposed procedure involved requiring the airlines to review a large schedule of flights, identify possible defences, progressively reduce the class and then pay compensation to the remaining passengers, subject to a proposed 24% deduction for funding and legal costs.

The defendants opposed the representative action and sought strike-out and an order preventing the claimant from acting as representative. The central issues were whether the claimant and represented passengers had the same interest in the claim at the outset, whether successive amendments could cure any defect, and whether the court should exercise its discretion to allow the action to proceed.

1. Jurisdiction. The proposed action failed the same-interest requirement in CPR rule 19.8. The assessment had to be made at the outset and by reference to the likely issues and defences. The class comprised claims requiring individualised factual inquiries, including whether particular delays or cancellations resulted from extraordinary circumstances. The fact that all claims arose under the same Regulation and sought fixed compensation did not identify a common issue benefiting every represented person.
2. The distinction between conflicting and merely divergent interests in Lloyd v Google LLC did not assist the claimant. Interests may diverge so widely that they cease to be the same. That was the position here. Successive amendments could not transform an improperly constituted representative action into a proper one. The proposed process was effectively a rolling representative action and would make the same-interest requirement nugatory. The requirement had to be satisfied at the relevant stage of the proceedings, not only after disputed or defensible claims had been removed.
3. Discretion. Even if jurisdiction existed, the court would not permit the action to proceed. The claimant’s undisclosed relationship with the funder, her employment by him, the lack of transparency concerning her motivation and the proposed deduction gave rise to serious concerns about suitability and the interests being promoted. The proposed deduction of almost one quarter of compensation was provisionally regarded as disproportionate, particularly because passengers could pursue claims through the airlines’ direct procedures, approved ADR schemes or the County Court small-claims procedure without such a deduction.
4. The proposed action would impose a very substantial administrative and financial burden on the airlines, much of which would be wasted when claims were later abandoned. It would also operate in substance as an automatic compensation scheme, a policy choice not made by Parliament. That result was inconsistent with the overriding objective of dealing with cases justly and at proportionate cost.
5. The claim was struck out under CPR rule 3.4(2)(b) and (c). The claimant was also directed under CPR rule 19.8(2) not to act as a representative.