To help future legal eagles, I'm going to upload many of my arguments and source documents I referred to during the case. Because there were two "proofs" (=court appearances to hear the facts and submit arguments) they are split into two:
1. The proof for the issue of jurisdiction: the Montreal Protocol
2. The proof for the main case: Breach of contract, and Denial of boarding.
25 October 2015: I have only uploaded the files relating to the Jurisdiction so far; for the main case regarding Denied Boarding, please come back later!
1. Jurisdiction
During the preliminary hearing, Easyjet argued that Edinburgh Sherrif Court did not have jurisdiction over the matter. Therefore the first hearing, and 7 August 2015, was on the issue of whether the Edinburgh Sherriff Court had jurisdiction.
The summary of my arguments is given in the below file:
1. The proof for the issue of jurisdiction: the Montreal Protocol
2. The proof for the main case: Breach of contract, and Denial of boarding.
25 October 2015: I have only uploaded the files relating to the Jurisdiction so far; for the main case regarding Denied Boarding, please come back later!
1. Jurisdiction
During the preliminary hearing, Easyjet argued that Edinburgh Sherrif Court did not have jurisdiction over the matter. Therefore the first hearing, and 7 August 2015, was on the issue of whether the Edinburgh Sherriff Court had jurisdiction.
The summary of my arguments is given in the below file:
| summary_of_arguments_for_caldwell_vs_easyjet.pdf |
The following legal authorities were referred to:
| butz_v_british_airways.pdf |
| shawcross___beaumont_re_jurisdiction.pdf |
| montreal_convention_full_eur-lex_-_22001a0718_01__-_en.pdf |
My commentary on the case.
I firstly argued that the CJJA (Civil Jurisdiction and Judgments Act 1982) allowed us to bring a case against Easyjet in Edinburgh. However, the Sherriff ruled that the CJJA has a specific exclusion for contracts for travel, and that the Montreal Convention is be the overriding authority on matters of jurisdiction for air travel. As an international treaty, case law from around the world is relevant. The Montreal Convention art 33 says the following on the jurisdiction matter:
1. An action for damages must be
brought, at the option of the
plaintiff, in the territory of one of
the States Parties, either before the
court of the domicile of the carrier
or of its principal place of business,
or where it has a place of business
through which the contract has
been made or before the court at
the place of destination.
Principal place of business
Easyjet argued that its principal place of business was Luton. This is indeed its registered office and it is difficult to argue otherwise. I did draw to the attention of the Sherrif that Easyjet sells itself as "Scotland's Largest Airline" and employs hundreds of people at its Scottish HQ in Edinburgh. This is more a point about “natural justice” rather than a technically relevant point, but I think it did establish that Easyjet would not be inconvenienced if the action was persued in Edinburgh… whereas we definitely would. Therefore, Edinburgh was a location where both parties could reasonably meet without undue barrier to justice. I understood that there are some general principles for a Small Claims Court, one of which is that justice should be accessible for individual consumers. Certainly the Sherrif was receptive to the argument that if there was a location which did not inconvenience either party, it should be selected. I also mentioned that as they have monopoly of the flights between Luton and Edinburgh, Easyjet would stand to profit if the case was moved there because I would probably travel there by Easyjet to make my case.
Place of business through which the contract has been made
We bought the tickets from a high street travel agent in Edinburgh, the old fashioned way (walk in, hand over money, receive travel documents). I argued that this was clearly the location where the contract was made, because it is where the bargain was offered and concluded, where payment was tendered and where the tickets were supplied. This interpretation is also supported by the decision of the judge in Butz vs British Airways, who interpreted "the place of business through which the contract was made" as equivalent to "where the ticket was purchased". (p3, middle paragraph).
I firstly argued that the CJJA (Civil Jurisdiction and Judgments Act 1982) allowed us to bring a case against Easyjet in Edinburgh. However, the Sherriff ruled that the CJJA has a specific exclusion for contracts for travel, and that the Montreal Convention is be the overriding authority on matters of jurisdiction for air travel. As an international treaty, case law from around the world is relevant. The Montreal Convention art 33 says the following on the jurisdiction matter:
1. An action for damages must be
brought, at the option of the
plaintiff, in the territory of one of
the States Parties, either before the
court of the domicile of the carrier
or of its principal place of business,
or where it has a place of business
through which the contract has
been made or before the court at
the place of destination.
Principal place of business
Easyjet argued that its principal place of business was Luton. This is indeed its registered office and it is difficult to argue otherwise. I did draw to the attention of the Sherrif that Easyjet sells itself as "Scotland's Largest Airline" and employs hundreds of people at its Scottish HQ in Edinburgh. This is more a point about “natural justice” rather than a technically relevant point, but I think it did establish that Easyjet would not be inconvenienced if the action was persued in Edinburgh… whereas we definitely would. Therefore, Edinburgh was a location where both parties could reasonably meet without undue barrier to justice. I understood that there are some general principles for a Small Claims Court, one of which is that justice should be accessible for individual consumers. Certainly the Sherrif was receptive to the argument that if there was a location which did not inconvenience either party, it should be selected. I also mentioned that as they have monopoly of the flights between Luton and Edinburgh, Easyjet would stand to profit if the case was moved there because I would probably travel there by Easyjet to make my case.
Place of business through which the contract has been made
We bought the tickets from a high street travel agent in Edinburgh, the old fashioned way (walk in, hand over money, receive travel documents). I argued that this was clearly the location where the contract was made, because it is where the bargain was offered and concluded, where payment was tendered and where the tickets were supplied. This interpretation is also supported by the decision of the judge in Butz vs British Airways, who interpreted "the place of business through which the contract was made" as equivalent to "where the ticket was purchased". (p3, middle paragraph).
But Easyjet provided evidence to show that the "transaction" took place between our agent's office in Hampshire, and their servers in Luton. Therefore, Easyjet said that the place of business through which the contract was made was Luton. I argued that the location of an airline's server is not relevent, and difficult to ascertain - these days, servers can be located everywhere and nowhere (the Cloud) and it may be the case that nobody knows where the server was located for one particular transaction - services like Amazon Cloud providing virtual servers which could be located anywhere. Or indeed, different aspects of one transaction (website, booking system, payment system) could take place in different continents. The Sherrif seemed sympathetic to my argument that, had I bought tickets over the web from my home, the place of business would have been my home - this is where the offer is made, the bargain concluded, payment is tendered, and the concluding documents provided - which is the essence of a business transaction. As he said "Easyjet provide a kiosk in your home" which is a nice way of putting it.
There is some support for this in Shawcross and Beaumont, section 438 VII391 (top of page 3 of my pdf copy). Polanski vs KLM concerned an e-ticket bought at home, and the judge ruled that the purchaser’s home was the place of business.
There is some support for this in Shawcross and Beaumont, section 438 VII391 (top of page 3 of my pdf copy). Polanski vs KLM concerned an e-ticket bought at home, and the judge ruled that the purchaser’s home was the place of business.
Ultimately the jurisdiction matter was not decided on this point because I was able to show conclusively that the final criterion was met, but it would be interesting to have a test case in which the tickets were bought on-line. Clearly the Montreal Convention has fallen behind the times here - online sales were just taking off in 1999, but are now the majority.
The place of destination.
The issue of "destination" was the decider. Our return flights were Catania -> Gatwick, then Gatwick -> Edinburgh, both by Easyjet. We had evidence that our agent had booked all four flights (outbound and return) in a single transaction. Easyjet provided a printout of their internal record of the transaction, including the information provided by Easyjet to our agent about terminal numbers of arrival and departure at Gatwick. Easyjet argued that they are a "point to point airline" and do not provide connecting flights. I argued that both parties knew that it was a connecting service, and it was obvious that our destination that day was not Gatwick.
I actually drew upon the legal authorities presented by the defender to make my point (Shawcross & Beaumont) that it is the "ultimate destination" of a sequence of flights which is material, and that what matters was the parties' true intentions when the tickets were purchased:
· Section 440 – courts will decide the parties’ true intentions
· Section 441 – in the case of return ticket or round trip regarded from the outset as a single operation the place of departure will also be the place of destination
· Many of the case involve successive carriage; the place of destination is always the ultimate destination, provided that the parties have regarded the successive carriage as a single operation.
Also Butz vs British Airways supported my position on this (p4, paragraph 3)
The place of destination.
The issue of "destination" was the decider. Our return flights were Catania -> Gatwick, then Gatwick -> Edinburgh, both by Easyjet. We had evidence that our agent had booked all four flights (outbound and return) in a single transaction. Easyjet provided a printout of their internal record of the transaction, including the information provided by Easyjet to our agent about terminal numbers of arrival and departure at Gatwick. Easyjet argued that they are a "point to point airline" and do not provide connecting flights. I argued that both parties knew that it was a connecting service, and it was obvious that our destination that day was not Gatwick.
I actually drew upon the legal authorities presented by the defender to make my point (Shawcross & Beaumont) that it is the "ultimate destination" of a sequence of flights which is material, and that what matters was the parties' true intentions when the tickets were purchased:
· Section 440 – courts will decide the parties’ true intentions
· Section 441 – in the case of return ticket or round trip regarded from the outset as a single operation the place of departure will also be the place of destination
· Many of the case involve successive carriage; the place of destination is always the ultimate destination, provided that the parties have regarded the successive carriage as a single operation.
Also Butz vs British Airways supported my position on this (p4, paragraph 3)
And p5, paragraph 2:
I established that it was obvious to all concerned that our intention was to fly on holiday to Sicily, going out by taking two connecting flights (Edinburgh to Gatwick, then Gatwick to Catania) and returning by two connecting flights (Catania to Gatwick, and Gatwick to Edinburgh). All four tickets were bought in a single transaction, and the airline even provided helpful information about which terminal at Gatwick each leg arrived and departed at – showing that they knew they were connecting flights. When the Sherrif said "you had booked a holiday at a travel agent, and obviously nobody goes to Gatwick for their holidays" I knew that we were making progress!
Verdict
Finally, after a full day in court, the Sherriff delivered his verdict in our favour, and it was the destination criterion that was the basis of it. He said our final destination that day was Edinburgh, and therefore he was satisfied that this court had jurisdiction.
Although a victory, it was only the first step. We would still need to return to court on 30 September to consider the original matter.
Easyjet's tactics backfire
It seemed to me that Easyjet's tactics in trying to move the case to London, when it was obvious this would have seriously increased my costs and impeded my ability to prosecute it, did them no favours at all in front of the Sherriff. I was able to establish that Easyjet is self-proclaimed as Scotland's Largest Airline; that it handles upwards of 5 million passengers per year from its Scottish operations; that it employs over a hundred people at its "Scottish HQ" in Edinburgh. I put it to the court that it could not possibly be right that all of those passengers had no recourse other than to a London court if they had a problem like ours; that it would be a tipping of the scales of justice were it to be so. I said that the fact that Easyjet employs an Edinburgh law firm (Kennedy's) and have their Scottish HQ in the city, showed that they were quite capable to defend themselves in Edinburgh. I said that Easyjet was delaying the consideration of the main matter of Denied Boarding by questioning juridiction, and that it was a waste of everyone's time: the persuers and the public servants employed for a whole day to consider the case.
The Sherriff seemed very receptive to all of these arguments. I also detected an element of distate for Easyjet's tactics from the Sherrif. It seemed to me that claiming to a court that it doesn't have jurisdication is a dangerous move, because no body likes to be forced to accept the superiority of another when it feels competent with its own abilities. I suspect that the Sherrif's move at the later hearing to convert the case to a Summary Cause (thus increasing the costs we could claim and allowing him to issue a written judgment) was partly due to this. I got the impression that Easyjet was being "taught a lesson".
The Sherriff was almost ready to pronounce on the main matter at the end of the first day, and made it clear that he already thought we were denied boarding. However, he expained that he could not deliver his verdict in this session because it was only scheduled to consider the jurisdiction, and to issue a verdict. So we had to schedule a second date: 30 September 2015.
Discussion on the state of the law
Clearly, the Montreal Convention and EC261/2004 are out of date and don't match with how air transport is sold or delivered today. The following developments have taken place since it was written:
1. Flights are mainly over the the internet
2. Airlines are “ticketless” and only provide boarding cards, or even just e-boarding cards – so what is to be the interpretation of the word “ticket”?
3. Check in happens online, not in person – only bag drop happens in person. So how to interpret “check-in” in EC261/2004?
4. Airlines claim to be “point to point” and do not say that they offer “connecting flights”.
Due to this mismatch between the legislation and how air travel is today, it was necessary to reach for multiple references case law from around the world to show that in our case, the Edinburgh court has jurisdiction.
Verdict
Finally, after a full day in court, the Sherriff delivered his verdict in our favour, and it was the destination criterion that was the basis of it. He said our final destination that day was Edinburgh, and therefore he was satisfied that this court had jurisdiction.
Although a victory, it was only the first step. We would still need to return to court on 30 September to consider the original matter.
Easyjet's tactics backfire
It seemed to me that Easyjet's tactics in trying to move the case to London, when it was obvious this would have seriously increased my costs and impeded my ability to prosecute it, did them no favours at all in front of the Sherriff. I was able to establish that Easyjet is self-proclaimed as Scotland's Largest Airline; that it handles upwards of 5 million passengers per year from its Scottish operations; that it employs over a hundred people at its "Scottish HQ" in Edinburgh. I put it to the court that it could not possibly be right that all of those passengers had no recourse other than to a London court if they had a problem like ours; that it would be a tipping of the scales of justice were it to be so. I said that the fact that Easyjet employs an Edinburgh law firm (Kennedy's) and have their Scottish HQ in the city, showed that they were quite capable to defend themselves in Edinburgh. I said that Easyjet was delaying the consideration of the main matter of Denied Boarding by questioning juridiction, and that it was a waste of everyone's time: the persuers and the public servants employed for a whole day to consider the case.
The Sherriff seemed very receptive to all of these arguments. I also detected an element of distate for Easyjet's tactics from the Sherrif. It seemed to me that claiming to a court that it doesn't have jurisdication is a dangerous move, because no body likes to be forced to accept the superiority of another when it feels competent with its own abilities. I suspect that the Sherrif's move at the later hearing to convert the case to a Summary Cause (thus increasing the costs we could claim and allowing him to issue a written judgment) was partly due to this. I got the impression that Easyjet was being "taught a lesson".
The Sherriff was almost ready to pronounce on the main matter at the end of the first day, and made it clear that he already thought we were denied boarding. However, he expained that he could not deliver his verdict in this session because it was only scheduled to consider the jurisdiction, and to issue a verdict. So we had to schedule a second date: 30 September 2015.
Discussion on the state of the law
Clearly, the Montreal Convention and EC261/2004 are out of date and don't match with how air transport is sold or delivered today. The following developments have taken place since it was written:
1. Flights are mainly over the the internet
2. Airlines are “ticketless” and only provide boarding cards, or even just e-boarding cards – so what is to be the interpretation of the word “ticket”?
3. Check in happens online, not in person – only bag drop happens in person. So how to interpret “check-in” in EC261/2004?
4. Airlines claim to be “point to point” and do not say that they offer “connecting flights”.
Due to this mismatch between the legislation and how air travel is today, it was necessary to reach for multiple references case law from around the world to show that in our case, the Edinburgh court has jurisdiction.