I'm taking Ryanair through the small claims court

Westin

All credit to the OP for returning to update the thread.

michael1234

Yes credit to him and for taking it all the way.

And credit to the other posters for the lack of "told you so" type posts.

I take it an appeal is not practicable (or even possible) ?

LaHostessAvecLaMostess

michael1234 said:

Yes credit to him and for taking it all the way.

And credit to the other posters for the lack of "told you so" type posts.

I take it an appeal is not practicable (or even possible) ?

An appeal on what basis?

Unless the OP can show there was were serious errors on the part of the judge (such as fundamentally misunderstanding the law or the evidence presented) then no appeal will be granted.  Given almost everyone on here has argued that there was no real prospect of success, as did the CMA, it seems on the balance of probabilities that the judge fully understood the law and the evidence and made a correct judgement rather than the other way around.

michael1234

LaHostessAvecLaMostess said:

michael1234 said:

Yes credit to him and for taking it all the way.

And credit to the other posters for the lack of "told you so" type posts.

I take it an appeal is not practicable (or even possible) ?

An appeal on what basis?

Unless the OP can show there was were serious errors on the part of the judge (such as fundamentally misunderstanding the law or the evidence presented) then no appeal will be granted.  Given almost everyone on here has argued that there was no real prospect of success, as did the CMA, it seems on the balance of probabilities that the judge fully understood the law and the evidence and made a correct judgement rather than the other way around.

I wasn't present nor have sight of the judgement so I can't say hence my question but lets not go over old ground on this thread....

LaHostessAvecLaMostess

michael1234 said:

LaHostessAvecLaMostess said:

michael1234 said:

Yes credit to him and for taking it all the way.

And credit to the other posters for the lack of "told you so" type posts.

I take it an appeal is not practicable (or even possible) ?

An appeal on what basis?

Unless the OP can show there was were serious errors on the part of the judge (such as fundamentally misunderstanding the law or the evidence presented) then no appeal will be granted.  Given almost everyone on here has argued that there was no real prospect of success, as did the CMA, it seems on the balance of probabilities that the judge fully understood the law and the evidence and made a correct judgement rather than the other way around.

I wasn't present nor have sight of the judgement so I can't say hence my question but lets not go over old ground on this thread....

I'm not trying to go over old ground, I'm pointing out the process of appealing isn't just a case of paying your money and having another roll of the dice.  You actually need to be given the right to appeal and to be given that you need to be able to show the judge erred.  I see no basis for that.

I would also politely point out that if the court lost its mind and granted the right of appeal, that takes the case out of the small claims track.  That means that legal costs can also be claimed.  Can the OP really afford to pay the other sides expensive London solicitor legal costs on a pretty much unwinnable case?  I'd also point out that moving outside the small claims track also means the judgement can set precedent.  If you think Ryanair would let this one lie given it would open the floodgates to claims if they lost you're sorely mistaken.

Perhaps you should consider the financial ramifications of your suggestions before making them. It's very easy to tell people to do x, y and z when you have no financial skin in the game.

joncombe

Markh5096 said:

So, my hearing finally took place at Manchester Justice Centre on Tuesday. I'm sad, though not entirely surprised, to report that I lost.

Whilst the DJ was appropriately sympathetic, he had to follow the law, and the contract I agreed with Ryanair (via its Ts&Cs) did not give me any right to a refund. I guess the writing was on the wall when the CMA dropped its campaign, on the basis that "it was far from clear that there could be a successful outcome".

Thanks to all who offered support.

Well done for trying and thank you for coming back to update us.

I must say I'm annoyed by a the CMA approach. I tried to make a claim and the insurance company (AXA) kept referring me to the CMA advice and saying that because of this the hotel should be refunding me and to keep trying (despite them repetadely refusing). And then months later the CMA backed down, I suspect because they realised their understanding of the law wasn't correct. It angers me insurance companies (or at least, AXA) were treating the CMA advice as if it was law.

Markh5096

eskbanker said:

A painful experience I'm sure, and, like others who didn't rate your chances, it gives me no satisfaction to see this outcome, but are you able to share any detail of how the 'contract frustration' argument was dealt with?  It seemed all along that there wasn't much room for debate about not having any refund rights granted by the contract itself but I understood that you were instead approaching this from the wider perspective of that contract being frustrated....

This is how the Frustration angle was dealt with, by the Defence barrister....

1.                     First, the doctrine of frustration “is concerned with unforeseen, supervening events, not events which have been anticipated and provided for in the contract itself” (Chitty on Contracts (34th ed.) §26-059). The GTCC make express provision for a situation in which the Claimant was unable to use his tickets because Spain would not admit him. That provision is at Art. 13.3,[1] which provides:

We will not refund costs relating to any flight you cannot use as a result of you being refused entry.

 

That is precisely what happened in this case. The Claimant was refused entry to Spain, and for that reason, could not take his flight. The GTCC cannot have been frustrated by an outcome for which they make explicit provision.

2.                     Second, the Claimant retained the right to change flights under the GTCC.[2] Accordingly, it cannot be said that the conditions of performance had changed so as to obliterate (rather than reduce) the value of the Claimant’s rights in the circumstances. It is not relevant that the Claimant did not consider the exercise of those rights to be convenient:[3] The Sea Angel [2007] EWCA Civ 547, [2007] 1 C.L.C. 876 §111.      

3.                     Third, this entire contractual matrix has to be seen in the context of the Covid-19 pandemic and the associated ongoing risk of disruption. The Claimant booked tickets on a low-cost airline for winter flights during a pandemic respiratory virus. The risk of something like this happening was (at the very least) foreseeable: indeed, it was significant. 

4.                     The GTCC were accordingly not frustrated. In any event, if the GTCC were frustrated, that would discharge any future obligations, but would not result in an obligation to repay any money unless the Law Reform (Frustrated Contracts) Act 1943 applied, or there was a total failure of consideration.

4.1.               The Act, however, applies only to contracts governed by English law,[4] which the GTCC are not.[5] The Claimant cannot therefore rely on it to ask the Court to order the money be repaid.

4.2.               There has been no total failure of consideration. The Claimant retained a right to change flights, and accordingly was still owed obligations under the contract.[6]

---

[1] GTCC Art. 13.3 [12/119].

[2] GTCC Art 3.1.5 [12/101].

[3] Mr Hope’s Witness Statement ¶8 [9/75].

[4] S. 1(1) begins “Where a contract governed by English law has become impossible of performance or been otherwise frustrated…”

[5] GTCC Art. 2.3.1 [12/101].

[6] GTCC Art 3.1.5 [12/101].

CKhalvashi

Markh5096 said:

eskbanker said:

A painful experience I'm sure, and, like others who didn't rate your chances, it gives me no satisfaction to see this outcome, but are you able to share any detail of how the 'contract frustration' argument was dealt with?  It seemed all along that there wasn't much room for debate about not having any refund rights granted by the contract itself but I understood that you were instead approaching this from the wider perspective of that contract being frustrated....

This is how the Frustration angle was dealt with, by the Defence barrister....

1.                     First, the doctrine of frustration “is concerned with unforeseen, supervening events, not events which have been anticipated and provided for in the contract itself” (Chitty on Contracts (34th ed.) §26-059). The GTCC make express provision for a situation in which the Claimant was unable to use his tickets because Spain would not admit him. That provision is at Art. 13.3,[1] which provides:

We will not refund costs relating to any flight you cannot use as a result of you being refused entry.

 

That is precisely what happened in this case. The Claimant was refused entry to Spain, and for that reason, could not take his flight. The GTCC cannot have been frustrated by an outcome for which they make explicit provision.

2.                     Second, the Claimant retained the right to change flights under the GTCC.[2] Accordingly, it cannot be said that the conditions of performance had changed so as to obliterate (rather than reduce) the value of the Claimant’s rights in the circumstances. It is not relevant that the Claimant did not consider the exercise of those rights to be convenient:[3] The Sea Angel [2007] EWCA Civ 547, [2007] 1 C.L.C. 876 §111.      

3.                     Third, this entire contractual matrix has to be seen in the context of the Covid-19 pandemic and the associated ongoing risk of disruption. The Claimant booked tickets on a low-cost airline for winter flights during a pandemic respiratory virus. The risk of something like this happening was (at the very least) foreseeable: indeed, it was significant. 

4.                     The GTCC were accordingly not frustrated. In any event, if the GTCC were frustrated, that would discharge any future obligations, but would not result in an obligation to repay any money unless the Law Reform (Frustrated Contracts) Act 1943 applied, or there was a total failure of consideration.

4.1.               The Act, however, applies only to contracts governed by English law,[4] which the GTCC are not.[5] The Claimant cannot therefore rely on it to ask the Court to order the money be repaid.

4.2.               There has been no total failure of consideration. The Claimant retained a right to change flights, and accordingly was still owed obligations under the contract.[6]

---

[1] GTCC Art. 13.3 [12/119].

[2] GTCC Art 3.1.5 [12/101].

[3] Mr Hope’s Witness Statement ¶8 [9/75].

[4] S. 1(1) begins “Where a contract governed by English law has become impossible of performance or been otherwise frustrated…”

[5] GTCC Art. 2.3.1 [12/101].

[6] GTCC Art 3.1.5 [12/101].

Just to point out that I am not a lawyer, but in the context of the judgement think it's worth pointing out the following.

The arguments of both sides here make a lot of sense in the context of the case and once again I thank you for bringing significant clarity to the thinking of the courts.

For anyone with older tickets who may therefore be able to use the frustration of contract route in this case, there will be 2 key dates to take into consideration for the courts.

The first significant date will therefore be January 30 2020, where the World Health Organisation declared the outbreak a Public Health Emergency of International Concern.

The second significant date will be 11 March 2020 where the World Heath Organisation declared the outbreak to be a Pandemic.

The question still stands on which of these dates will be the cutoff for the frustration of contract route, however from personal experience (although this was very early in the pandemic and not legally binding), I booked flights on the LTN-KUT route on 9 March 2020 for departure on 15 March 2020, arrived in Georgia for the return flight (on the 22nd) to be cancelled, and had no issue with my insurer (Aviva via HSBC) to refund my tickets TBS-MSQ-LGW (I was ineligible to fly via Turkey having spent 2 days in Poland and also ineligible to fly via Ukraine having been in the UK in the previous 2 weeks) and other associated expenses, suggesting that it may in practice be the latter.

There was no talk over multiple international borders closing in the way they did on my departure, so everything was fully unexpected. The only major issues at this time within Europe had been in Italy, so this may also have significantly affected things.

eskbanker

Markh5096 said:
4.1.               The Act, however, applies only to contracts governed by English law,[4] which the GTCC are not.[5] The Claimant cannot therefore rely on it to ask the Court to order the money be repaid.

Thanks for sharing the defence's position on contract frustration - in particular that quote is highlighting that the GTCC are governed by Irish law, even though claims can be brought in a court elsewhere:

2.3 Governing law and jurisdiction

2.3.1      Except as otherwise provided by the Convention or applicable law, your contract of carriage with us, these terms and regulations shall be governed by and interpreted in accordance with the laws of Ireland.

2.3.2      You are entitled to bring a claim against us in your local court, except that Irish courts shall have exclusive jurisdiction in relation to claims under EU Regulation 261/2004 where you have not complied with clauses 15.2.1 to 15.2.7 of these Terms and in relation to non-consumer (i.e., business to business) claims.

Not quite sure how that works, in terms of exactly how English and Irish law interact, but it does again bring into question the CMA's ability to take any enforcement action against an overseas company operating within a different legal jurisdiction - when they started their investigation they did clearly say they were pursuing 'Ryanair DAC' rather than the UK entity, but it wouldn't surprise me if such issues contributed to the CMA case being dropped.  Perhaps customers have pursued Ryanair with more success through the Irish courts, although the other defence points do collectively seem pretty compelling anyway....

CKhalvashi

eskbanker said:

Markh5096 said:
4.1.               The Act, however, applies only to contracts governed by English law,[4] which the GTCC are not.[5] The Claimant cannot therefore rely on it to ask the Court to order the money be repaid.

Thanks for sharing the defence's position on contract frustration - in particular that quote is highlighting that the GTCC are governed by Irish law, even though claims can be brought in a court elsewhere:

2.3 Governing law and jurisdiction

2.3.1      Except as otherwise provided by the Convention or applicable law, your contract of carriage with us, these terms and regulations shall be governed by and interpreted in accordance with the laws of Ireland.

2.3.2      You are entitled to bring a claim against us in your local court, except that Irish courts shall have exclusive jurisdiction in relation to claims under EU Regulation 261/2004 where you have not complied with clauses 15.2.1 to 15.2.7 of these Terms and in relation to non-consumer (i.e., business to business) claims.

Not quite sure how that works, in terms of exactly how English and Irish law interact, but it does again bring into question the CMA's ability to take any enforcement action against an overseas company operating within a different legal jurisdiction - when they started their investigation they did clearly say they were pursuing 'Ryanair DAC' rather than the UK entity, but it wouldn't surprise me if such issues contributed to the CMA case being dropped.  Perhaps customers have pursued Ryanair with more success through the Irish courts, although the other defence points do collectively seem pretty compelling anyway....

As this is derived from EU law and presumably this was both at a time where EU law was fully applicable to the UK (with some minor differences between countries) and the UK  hasn't changed the legislation in this area, largely as it would be stupid to have significantly different regulatory framework from our nearest neighbours and trading partners, especially in an area such as aviation where there is very much an overlap including many EU-reg aircraft being effectively UK-based, there would be little prospect of success in the Irish courts too, unless the legal definitions in consumer rights legislation are significantly different in the favour of the consumer.

I don't believe there is much difference in any event, however I am fully aware that the Irish government has not attempted to cause harm to consumers and further confusion through useless advice that has no legal backing and therefore has rightly been dropped to prevent further harm to consumers under legal advice.