Flight delay claims and the European Small Claims Procedure

One of the areas of law that I have had an interest in for a number of years is flight delay claims.

A few years ago, I found myself having to make such a claim against British Airways, when their computer system, running presumably on souped up ZX Spectrums crashed spectacularly leaving me and my family adrift.

One of the more interesting aspects of the work is the way that the European Small Claims Procedure can be utilised instead of the more familiar process under part 27 CPR, with the bonus that necessary and proportionate costs can be awarded, as opposed to nominal fixed costs.

The amount of such costs awarded can vary dramatically, from a few hundred pound to two thousand pounds. Certain court centres around the country, including Liverpool deal with such claims in bulk. I went to Liverpool earlier this month to argue an appeal in front of HH Judge Wood QC, to attempt to establish some guidance on how such costs should be assessed and awarded.

A copy of the judgment can be found here:Senior v Blue Air Judgment – Final. In the case of Senior v Blue Air Management (County Court at Liverpool, 19th September 2019) the judge considered the recent cases of West/Demoulpied in the Court of Appeal and gave structured guidance to the costs judges who will assess such costs, and the degree to which they must give reasons.

How long the European Small Claims procedure will endure, in the light of the Brexit shenanigans currently unfolding of course remains to be seen. Although Brexit appears to have proceeded at a glacial pace since 2016, things are picking up speed as we hurtle towards 31st October 2019, and like so many matters the procedure’s future simply can’t be predicted at this time.

11 comments

  1. Surely a paying party could just argue that it wasn’t necessary to use the European Small Claims Procedure where an alternative exists, especially if the primary motive for doing so was so that costs could be recovered?

  2. No, because the ESCP is a remedy given to litigants under parliamentary approval to increase their rights and to give them a further option when seeking redress from a wrongdoer including their costs. If the wrongdoer doesn’t fancy paying those costs, the answer is not to commit the wrong.

    1. Or perhaps to argue that the costs were unecessarily incurred and not therefore recoverable. Just seems difficult to see how a course of action which is chosen primarily because costs are recoverable could be seen as necessary. Would be intestesting to see any case law in this area.

  3. Its right that reasons are given for the decision, but this should be the case for all summary costs decisions, not just ones where an upwards shift in costs is sought, otherwise costs will keep being ratcheted upwards.

      1. Contributors may wish to have their anonymity protected for a variety of reasons, thanks. It isn’t necessary for each commenter to identify themselves.

        1. I’m sorry but I think for a number of reasons I’d prefer people to identify themselves if they wish to post on my webpage. Future anonymous posts will be deleted.

          1. Sorry, but what reasons? Is it because you don’t agree with some of the comments? If so, it would be better to moderate comments, although its always a shame when comments are filtered out just because people disagree with them. Its a little confusing, first it was said that anonymity isn’t necessarry with commenters being requested to identify themselves, then that the preference is for commenters to identify themselves, and then that any anonymous comments will be deleted. Ultimately you’re the one with your finger on the delete button, but people have a variety of reasons why they may wish to express their views on a public forum but may not wish to publicly identify themselves for their own protection. I would hope that their wishes would be respected. Additionally, comments, anonymous or otherwise, promote discussion and debate about the important points raised.

          2. Oh anyone is free to disagree with my opinions or challenge my arguments on costs. That happens on a daily basis after all.But I regard it as odd, and impolite, when people hide behind a cloak of anonymity on my personal blog. On a practical note, I think anonymity might encourage the kind of keyboard warriors, who currently litter social media to clutter up my site too.

          3. I think it just comes down to people wishing to protect their identity for privacy reasons in most cases.

  4. It is to be hoped that this judge and others won’t feel under pressure not to fully adjust for proportionality as a result of the decision if it is seen as an implied criticism or because of the extra work generated from having to explain proportionality adjustments. The ruling should be seen as a directive to fully explain proportionality adjustments, not to admit to make them, any criticism is of the failure to give reasons rather than of the adjustment itself.

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