In a recent judgment, HHJ Mitchell, in the Central London County Court, dismissed a claim seeking a declaration of unlawfulness against British Airways in relation to the treatment of the claimant during the boarding process of one of the defendant’s flights from Copenhagen to London.
The claimant, whose claim was funded by the EHRC, alleged that he had been singled out for additional ID checks and harassed due to a protected characteristic under the Equality Act 2010. The claimant was asked to produce secondary ID by a gate agent, employed by BA’s handling agent in Copenhagen, and refused to do so. It was the gate agent’s evidence that all passengers on the flight concerned had been asked to produce secondary ID.
It was submitted on BA’s behalf that, notwithstanding that the facts did not support the allegation of less favourable treatment in any event, the claim was pre-empted by the exclusivity of the Montreal Convention; that the Equality Act did not have extraterritorial application given that the acts complained of were those of a Danish national, employed by a Danish company on Danish soil; and that, even if the Claimant succeeded on the facts, it was not a matter suitable for declaratory relief.
The judge found in favour of BA in relation to both the facts and the law. The Court preferred the evidence of the gate agent, finding that the claimant was not treated less favourably due to a protected characteristic, nor harassed due to a protected characteristic.
Given the findings of fact, which were sufficient themselves to dismiss the claim, it was not necessary for the judge to proceed to deal with BA’s submissions on the law, however, in an ex tempore judgment, the Judge found that the claim for a declaration was pre-empted by the Montreal Convention; in circumstances such as these, the Equality Act did not have extra territorial application and that, even had the claimant succeeded on the facts and the application of the Equality Act, it was not a matter suitable for declaratory relief.
The claimant had issued proceedings seeking both damages and declaratory relief. The claim for damages was discontinued, in light of the Court of Appeal decision in Stott –v- Thomas Cook and an application for summary judgment by the Defendant, so the claim had proceeded by way of seeking declaratory relief alone, an issue that was not directly addressed in Stott. The Judgment is very important for carriers, given the findings in relation to exclusivity and extra territorial effect of the Equality Act, providing further authority for the proposition that, in relation to passenger claims arising from events during the course of carriage by air, the Convention remains an exclusive regime and provides the only private law remedies.