IN THE PORTSMOUTH COUNTY COURT. Before: DEPUTY DISTRICT JUDGE ALEXANDRE. - and -

Transcription

1 IN THE PORTSMOUTH COUNTY COURT No. B4QZ05E1 Winston Churchill Avenue Portsmouth PO1 2EB Thursday, 22 nd October 2015 Before: DEPUTY DISTRICT JUDGE ALEXANDRE B E T W E E N : JOHN WALLACE Claimant - and - BRITISH AIRWAYS PLC Defendant Transcribed by (a trading name of Opus 2 International Limited) Official Court Reporters and Audio Transcribers 5 Chancery Lane, London EC4A 1BL Tel: Fax: info@beverleynunnery.com THE CLAIMANT appeared in Person. MR. PAUL appeared on behalf of the Defendant. J U D G M E N T (As approved by the Judge)

2 DEPUTY DISTRICT JUDGE ALEXANDRE: 1 This is a claim by Mr. Wallace against British Airways Plc arising out of flights provided by BA to Mr. Wallace, who was the lead passenger of a party of a six. Mr. Wallace has appeared in person today. British Airways have been represented by Mr. Paul of Counsel who has very helpfully provided to me a skeleton argument and bundle of authorities. 2 As regards the evidence in the claim, Mr. Wallace has provided a bundle of documents mostly comprising either exchange of s in respect of this dispute or internet publications on flight Regulations. I do not have a witness statement from him, so the factual evidence up to this morning was pretty much limited to what was in his particulars of claim. He did, however, provide some clarification in evidence although there was effectively no real cross-examination arising. 3 On the part of the defendant there was filed a witness statement from Michelle Parker, Customer Relations lawyer for the defendant business, although Miss Parker did not attend and was not subject to cross-examination. 4 There is not an enormous amount in dispute in this case. As set out by Mr. Paul in his skeleton, Mr. Wallace, as I say, was the lead passenger in the purchase of six package holidays for he and his friends to America, departing London Gatwick on 1 st April. The initial booking provided for the passengers travelling out to Florida to travel in premium economy class, known as World Traveller Plus Cabin, as I say, departing 1 st April, and then returning on a different class of cabin known as Club World on the return leg on 19 th April For whatever reason BA were unable to provide the quality on the outward flight for two of Mr. Wallace s party, who were relegated to ordinary class. There is no dispute about that. 5 As a result of Mr. Wallace raising a complaint, BA have paid 1,348, I think it is, which they say is the amount due as a result of the downgrading. Mr. Wallace disputes that the calculation is correct. 6 There are a number of issues which were raised in the course of the hearing this morning. What is not in dispute is that Mr. Wallace is entitled under the Regulations to a rebate of 75%. What is disputed is 75% of what. There are within that a number of sub-issues. The first is whether it is 75% of the total amount paid for flights, i.e. to include the outward and the return leg, and secondly 75% of what in terms of Flight cost; is there room for assessment of the amount paid to BA for the purposes of the Regulations and does it differ from the amount Mr. Wallace might have paid.

3 7 EU Regulations provide a compensatory scheme in respect of claims by passengers in international air carriage. Particularly, Regulation 261 of 2004 provides at Article 10.2 that: If an operating air carrier places a passenger in a class lower than that for which the ticket was purchased it shall, within seven days, reimburse - ((a) and (b) are not directly material). (c) 75% of the price of the ticket for all flights not falling under (a) or (b) Mr. Wallace contends that the wording price of the tickets for all flights means the outward leg and the return leg i.e. the cost of all the flights in the package. Unsurprisingly, perhaps, Mr. Paul on behalf of British Airways contends that the return leg in this case is not relevant because there was no downgrading of the return leg and it was as originally booked by Mr. Wallace for his party. 8 The contention by Mr. Paul for interpretation limiting the reimbursement to 75% of the outbound flight, he says is supported by a decision of the European Court, a case of Direktion fur Deutschland v Shenkel [2008] 3CMR20, which was a case involving calculation of compensation for cancellation of flights arising under the same Regulations. In that case the court at paragraph 40 stated having provided in the previous paragraphs its reasoning: In the light of the above considerations the concept of flight within the meaning of the Regulations must be interpreted as consisting essentially in air transport operation, being, as it were, a unit of such transport performed by an air carrier which fixes its itinerary. And at paragraph 47 : It follows from the above that the journey out and back cannot be regarded as a single flight. Consequently Article 3 of the Regulations cannot apply to the case of an outward and return journey such as that at issue in the main proceedings in which passengers who have originally departed from an airport located in the territory of a Member State travel back to that airport on a flight departing from an airport located in a non-member country. In my view that case makes it clear its interpretation of the Regulations that flight in this context means, in this case at any rate, the outward flight only.

4 I cannot see that in the context of the Shenkell decision there is really much scope for me to interpret 10.2 otherwise. 9 Mr. Paul has further researched the matter and I am somewhat comforted in my conclusion by the note in his skeleton identifying that the European Commission proposed an amendment to Article 10.2, making it clear that instead of the price of the ticket there is inserted the words flight price. That, of course, is a proposal and for the purposes of interpretation today I do not rely on it at all, but, as I say, I simply take some comfort in that that is what was intended for revised wording of the Article. It follows, therefore, that the claim by Mr. Wallace must be limited to the outward leg of the journey only and not both outward and return. 10 Regulation 10.2 provides for reimbursement of 75% of the price of the ticket. Price is not defined in the Regulation, although the word ticket is at Article 2. It does not focus on the money aspect of the transaction because it is defined as: A document giving entitlement to transport or something equivalent in paper-less form, including electronic form, issued or authorised by the air carrier or its authorised agent. 11 Mr. Paul contends that the meaning is the price paid to British Airways. I think I am right in understanding that it is his submission that is the amount paid by the passenger if there is a direct contract between the passenger and British Airways, in other words a direct booking. Alternatively, it is the amount paid by the agent instructed by or acting for the passenger to make the booking with British Airways on the passenger s part (as in this case). He says that in essence it is appropriate to interpret the compensatory package on that footing, bearing in mind that the obligation on the airline is to pay within seven days and bearing in mind that this is a complex industry that there will be no reasonable prospect of airlines being able to properly and readily comply with a strict time limit unless it, the airline, was in control of and managed the information necessary to make the appropriate assessment. 12 I am not convinced by that argument. I take the view that 75% of the price of the ticket is the amount paid by the passenger. If, as Mr. Paul submits, it was based on the amount received by the airline then I would have anticipated the wording in sub-paragraph (c) to have made that clear. It would, in my view, have provided, for example, for 75% of the amount received by the business providing the service, (i.e. the flight) rather than the price of the flight.

5 13 The focus, in my view, is on the total amount that was paid by the passenger, by the customer, end customer, and the amount received by the carrier is not material for the purpose of Article 10, and I take that simply from the wording of sub-paragraph (c). 14 Mr. Paul submitted that it could lead to discriminatory and unfair practice if anything other than the amount received by the carrier was used for the purposes of assessment. I do not accept that. I see nothing in principle wrong with recognising that prices paid by passengers on the same flight can vary enormously, and it almost inevitably follows that different compensatory amounts will be paid by carriers to different passengers experiencing the same difficulties. 15 Having reached that conclusion as to the interpretation of 10.2(c), the question is how much was paid by Mr. Wallace for the outward leg. Mr. Wallace has a problem with this. There is no evidence in the form of a witness statement from him setting out how the price was determined. There are no documents provided by him. There is no analysis from the agency he used. His evidence was that the cost of the return flight was provided to him by the agents at 1,717 per passenger, as part of an overall price for six people of 23,000 for the fortnightplus holiday in Florida, which included flight, hotel and car hire. He said that he was not able to obtain any meaningful breakdown or further analysis from the agents. It is therefore completely uncertain from my perspective as to the true proportion of the total holiday price of 23,000 that was apportioned to the flights in and out. 16 That difficulty is further compounded by the fact that the quality of the flights in and out were different. The flight out was World Traveller Plus. The flight back was different. The evidence from Miss Parker is that her company s internal documents apportioned the return cost of each passenger at 1,527, as opposed to the 1,717 identified by the agents. There is not an enormous difference between them, but in the absence of any meaningful evidence from Mr. Wallace as to how the agents have identified the 1,717 I cannot rely on that as being the true figure. 17 But further and in any event Miss Parker apportions the outward and the return leg within the total price of 1,527 as 437 for the flight out and 1,089 for the return leg because of the different quality of cabin accommodation for each leg. The agent s figures make no reference to that. I should add that this calculation was done after the payment made to Mr Wallace of 1,348. Taking Miss Parker s evidence as meaningful in that regard, there clearly is a very significant level of quality difference between the two types of flights. So whilst I take the view that the interpretation of the wording of 10.2 means and can only mean the price of the ticket paid by the passenger, I am not satisfied on the evidence that I would come to any different conclusion, or should come to any different

6 conclusion, than the pricing set out in Miss Parker s witness for each leg. The evidence from Mr. Wallace does not descend far enough into the detail. 18 It therefore follows that on the calculations set out in the statement the amount paid by British Airways does in fact exceed the amount that would properly be payable had the detailed analysis in respect of quality of accommodation on the aircraft been analysed before repayment had been effected. It therefore follows that the claimant s claim should be dismissed.