Dore & Anor v Easyjet Airline Company Ltd

Factual and Procedural Background

This case concerns an appeal from an order of Her Honour Judge Clarke in the County Court at Oxford, dismissing an appeal from Deputy District Judge Abrahams in the County Court at Luton. The dispute arose from compensation claims for flight delays under Article 7 of Regulation (EC) No. 261/2004 (as amended by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment) (EU Exit) Regulations 2019). The appellants booked two flights with an airline from Milan to Alghero on 1 June 2019, which were delayed by seven hours, entitling each passenger to €250 compensation subject to compliance with the airline’s terms and conditions.

The central procedural issue was whether the appellants complied with the airline’s clause 19.6, requiring passengers to submit claims directly via the airline’s online portal and allow 28 days for a response before commencing court proceedings. The appellants contended they submitted claims through the airline’s online portal, while the airline argued no such direct claim was made, barring compensation.

The appellants initially instructed a solicitor firm following engagement of a claims handling company. Attempts to submit claims via the airline’s portal by the claims company were made on 11 April 2021, generating an automatic rejection email citing inability to find the booking, without specifying errors or providing a means to review submitted data. Subsequently, on 24 April 2021, the solicitors emailed the airline providing transaction references and boarding passes, but the airline refused the claim on 26 April 2021, maintaining non-compliance with clause 19.6.

The claim was issued on 8 June 2021 and allocated to the small claims track. At trial, both parties submitted evidence including the airline’s automatic email. The trial judge found insufficient evidence that the online claim met the clause 19.6 requirements and dismissed the claim. On appeal, the first appeal judge upheld this decision without considering fresh evidence including a demonstration of the online portal’s operation and clarification that the claims handling company accessed the portal on appellants’ behalf.

The appellants sought permission to appeal further and to rely on fresh evidence, including a letter from the airline confirming receipt of full information more than 28 days before proceedings. This appeal addresses these issues and the admissibility of fresh evidence.

Legal Issues Presented

1. Whether the appellants complied with clause 19.6 of the airline’s terms and conditions by submitting claims directly to the airline using its online portal before commencing court proceedings.
2. Whether a claim submitted via a third party (claims handling company) on behalf of passengers constitutes a "direct" claim under clause 19.6.
3. The admissibility and impact of fresh evidence not presented at trial or first appeal.
4. The lawfulness under Article 15 of Regulation (EC) No. 261/2004 of requiring passengers to submit claims through an online portal before compensation is payable.
5. The procedural requirements and fairness in requiring claimants to prove the contents of submissions made via an online portal when the airline holds the data.

Arguments of the Parties

Appellants' Arguments

• The appellants contended they complied with clause 19.6 by submitting claims through the airline’s online portal, as evidenced by the automatic email acknowledgment and subsequent correspondence including boarding passes.
• They argued that having a third party (claims handling company) submit claims on their behalf still constituted a direct claim under the terms.
• The appellants sought to admit fresh evidence including a letter from the airline confirming possession of sufficient claim information more than 28 days before proceedings.
• They submitted it was unfair and impossible for claimants to prove the exact contents of online submissions when the airline holds the data and that the airline should be required to disclose it.

Respondent's Arguments

• The airline argued the appellants did not comply with clause 19.6 because no valid direct claim was submitted via the online portal before proceedings.
• It contended that claims submitted by a third party did not constitute direct claims and that the appellants failed to pay attention to the contractual term.
• The airline emphasized errors and inconsistencies in the claim documentation, including incorrect flight numbers and booking references.
• The airline opposed the admission of fresh evidence and sought to withdraw certain evidence submitted in the Court of Appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bott & Co Solicitors Ltd v Ryanair DAC [2019] EWCA Civ 143	Confirmed that requiring passengers to use a well-designed online claims system first does not constitute a material obstacle under Article 15 of Regulation (EC) No. 261/2004; also addressed the nature of claims handling services and the lawfulness of contractual terms requiring direct claims.	The court applied the reasoning to uphold the airline’s right to require initial claims via an online portal and accepted that third parties may assist in submitting claims, provided the claim is made in the passenger’s name.
Ladd v Marshall [1954] 1 WLR 1489	Sets out principles governing the admissibility of fresh evidence on appeal.	The court exercised discretion to admit fresh evidence based on overriding objective and exceptional circumstances, despite it not being presented at trial.
Terluk v Berezovsky [2011] EWCA Civ 1534	Clarified the application of discretion regarding fresh evidence on appeal.	The court referenced this case in exercising discretion to admit fresh evidence in this appeal.
Lipton v BA CityFlyer [2021] EWCA Civ 454	Confirmed that the rights and obligations under Regulation (EC) No. 261/2004 continue to apply post-Brexit.	The court confirmed the continued applicability of the regulation and relevant case law in the UK legal context.

Court's Reasoning and Analysis

The court began by considering the factual matrix, including the operation of the airline’s online portal and the relevant clause 19.6 of the terms and conditions. It noted that the appellants’ claims handling company accessed the portal on their behalf, which was permissible under the terms and consistent with the principle that a claim may be submitted with assistance, so long as it is made in the passenger’s name.

The court examined the evidence that at least one valid booking reference was entered, explaining why the portal accepted the submission and generated an automatic email response. The automatic email, however, did not specify the nature of any errors or provide a mechanism for the claimant to review submitted data, which the court identified as a deficiency that risks constituting a material obstacle contrary to Article 15 of the Regulation.

The court recognized that the appellants provided full and accurate claim details, including boarding passes, by 24 April 2021, and the airline acknowledged receipt of this information on 26 April 2021. As the claim form was issued more than 28 days later, the court held that the appellants satisfied the conditions of carriage and complied with clause 19.6.

The court acknowledged the trial and first appeal judges’ decisions were understandable given the limited evidence before them and the absence of certain material facts and documents at trial. It noted that the appellants could have sought an adjournment or requested disclosure of the data entered on the portal but did not do so, which contributed to the initial adverse findings.

The court exercised its discretion to admit fresh evidence due to the exceptional circumstances and the importance of the legal principles involved. It reaffirmed the law from Bott v Ryanair that airlines may require use of an online portal as a procedural step provided it does not create a material obstacle.

Finally, the court emphasized that the airline’s online system in this case failed to meet standards that would prevent material obstacles, such as allowing claimants to save or review submitted data and providing clear error messages, which is important to avoid contravening Article 15 of the Regulation.

Holding and Implications

The appeal is allowed.

The court held that the appellants complied with the airline’s terms and conditions by submitting claims through the online portal, including via a third party acting on their behalf, and by providing full and accurate claim information more than 28 days before commencing court proceedings. The airline’s refusal to pay compensation was therefore unfounded.

The decision confirms that requiring passengers to use a well-designed online claims system initially is lawful under Article 15 of Regulation (EC) No. 261/2004, provided it does not create material obstacles. The ruling also clarifies that assistance by third parties in submitting claims does not negate the "direct" nature of such claims under contractual terms.

The court underscored the need for airlines to ensure their online systems facilitate claimants’ ability to verify and correct submissions to avoid procedural unfairness and potential breaches of the Regulation. No new precedent on this point was established beyond affirming and applying existing legal principles.

The court indicated that costs may not follow the event, suggesting the parties consider sensible cost arrangements given the low value of the claims.