Skycop.com UAB v EasyJet Airline Company Limited

When the United Kingdom was a member of the European Union, passengers who experienced delays to or cancellations of flights were given certain rights as against airlines under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004. I shall refer to this as the 2004 Regulation. In addition to the requirement that airlines offer certain services to passengers, there was also an entitlement to compensation. Those rights continue, in amended form, after this country’s departure from the European Union as a result of the European Union (Withdrawal) Act 2018 and the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019.

This appeal concerns the question whether the appellant can rely upon a clause in its conditions of carriage which purports to restrict the right to assign the entitlement to compensation. Although there had been an issue as to whether the right could be assigned at all, the force of the submissions before me was focused upon whether Article 15 of the 2004 Regulation, which restricts any limitation or waiver of obligations created by it, renders clause 19.11 of the appellant’s terms and conditions void.

On 21 August 2025, Deputy District Judge Abrahams sitting in the County Court at Bedford concluded that the right to compensation under the 2004 Regulation could be assigned. He also concluded that the clause upon which the appellant relied was in conflict with the 2004 Regulation and therefore void. Noting the importance of the issue between the parties, he gave permission to appeal.

It is helpful at the outset to have in mind the clause which is in issue. Clause 19.11 provides as follows:

To give this judgment context, it is helpful to set out the relevant statutory framework.

Article 3 of Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts provides, so far as material:

The United Kingdom complied most recently with the requirement under Article 6 of the 1993 Council Directive by the enactment of the Consumer Rights Act 2015. Section 62 provides:

Section 63 then makes provision for Schedule 2, Part 1 which is expressed to contain “an indicative and non-exhaustive list of terms of consumer contracts that may be regarded as unfair for the purposes of this Part”. The one which was drawn to my attention was item 20, which states:

The rights which are in issue in this appeal flow from Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. It was common ground that the rights under the 2004 Regulation continue to apply after this country’s departure from the European Union. Certain amendments, not relevant to this appeal, have been made by regulation 8 of the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019.

As amended, Article 3(1) defines the scope of the 2004 Regulation, stating so far as material for this appeal, that it applies to passengers departing from an airport in the United Kingdom. Article 5 makes provision for what should happen when a flight is cancelled delayed by imposing certain obligations upon airlines. Passengers are entitled to the assistance set out in Article 9. By way of example, that article requires the offer, free of charge, of meals and refreshments. In certain circumstances, there is an obligation to offer, free of charge, hotel accommodation.

The reason these matters usually come before the County Court is that Article 5(1)(c) gives the right to compensation by the air carrier in accordance with Article 7, subject to exceptions not relevant to this appeal. Article 7 then sets out the compensation which is payable according to the length of the flight taken or cancelled.

The entitlement to compensation is not absolute. Article 5(3) provides that an operating air carrier is not obliged to pay compensation if it can prove that a cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. This is not an issue in the appeal before me, although as I shall set out below, reference was made to it in pre-action correspondence.

Article 15 is key to this appeal. It provides as follows:

The European Union (Withdrawal) Act 2018 made provision for the consequences of the United Kingdom leaving the European Union. The provisions relevant to this appeal are as follows:

“3.

Incorporation of direct EU legislation

(1)

Direct EU legislation, so far as operative immediately before exit day forms part of domestic law on and after exit day.

(2)

In this Act “direct EU legislation” means

(a)

any EU regulation, EU decision or EU tertiary legislation, as it has effect in EU law immediately before exit day.

There are qualifications to the provision that direct EU legislation has effect in this jurisdiction. Not all legislation continued to have effect by virtue of section 3(1). It was common ground however that the 2004 Regulation continued to have effect in this jurisdiction after the United Kingdom’s withdrawal from the European Union.

There is a number of claims which are affected by this decision. The facts in the underlying case are not in dispute in this appeal and they can therefore be stated quite briefly.

In view of the number of claims affected by the issue raised in this appeal, the parties sensibly agreed that there should be a judicial decision upon it. No decision would be made as to the underlying merits of any of the particular claims. The focus would instead be solely upon whether passengers were able to assign their rights to compensation to the respondent. If they could, then the respondent could bring and continue claims and they would either be accepted by the appellant or a judge would be required to determine whether there was an entitlement to compensation under the 2004 Regulation. That might depend in each case, where the point was taken, upon whether extraordinary circumstances were made out. If however the passengers were not able to assign their rights to the respondents, that would be an end to the various claims. The respondents would have no right to claim compensation at all.

Judge Abrahams concluded that the passengers could assign their rights to compensation. In his ex tempore judgment he referred to the decision of Recorder Stephen Jourdan KC in Air Help Ltd v British Airways plc. He adopted the Recorder’s analysis that the right to compensation payment under Article 7 was assignable. Judge Abrahams then concluded, at paragraphs 13 and 14:

“13.

… an argument has been raised regarding maintenance and champerty. The law will not recognise, on the grounds of public policy, an assignment of a right to litigate. There has been some discussion as to whether the assignment of a statutory right to compensation is or is not such a bare right to litigate.

14 . In my view it is not a bare right to litigate. It is a right to claim compensation where litigation may be a route to that compensation, but it is not a bare right to litigate, and I reject the argument relating to maintenance and champerty.

Noting that the Recorder had been concerned with the terms and conditions of a different airline, he proceeded to consider clause 19.11. He reminded himself that Article 15 specifically provided that obligations “may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage” and identified the question before him as being whether the limitation in clause 19.11 breached Article 15. He concluded that he could draw assistance from the decision of the Nuremberg-Fürth Regional Court on 30 July 2018 where it held in Guidance Order 5 S 8440/17 that a bar on assignment of the right to compensation was void under Article 15.

He identified two issues about the assignment before him. The first was its validity as between passenger and the respondent. He showed no hesitation in concluding that as between them it was effective. The second feature was the issue raised in this appeal, that is to say whether it was effective as against the appellant. As he put it:

The Judge gave permission to appeal. In the form N460 he gave his reasons as follows:

“There is a point of principle in the potential conflict between a passenger’s rights under Article 15 and Easyjet’s terms and conditions. In my view Article 15 prevails in that limiting the potential class of assignees infringes Article 15 by derogating from and restricting a passenger’s rights.”

The appellant filed its appellant’s notice on 11 September 2025. It sought to raise two grounds of appeal. The first ground was that the Judge was wrong as a matter of law to conclude that clause 19.11 was void as a result of Article 15 and that as a result, passengers were able to assign claims to a third party. The second ground was that the Judge failed to have regard to the validity of the assignment to a claims management company which was not regulated by the FCA. Mr Taylor accepted that he could not argue the second ground of appeal before me. It had not been considered by the Judge below and it is also not something for which, in terms, permission to appeal had been granted.

It is perhaps helpful to consider this decision in a little detail as both counsel drew my attention to it. In that case there had been an assignment of the right to compensation under the 2004 Regulation to the claimant. The claim was defended on two grounds. First it was argued that the right to compensation under Article 7 of the 2004 Regulation was inherently incapable of assignment. Second, in the alternative, if the right was assignable then the defendant relied upon clause 18(a) of its terms and conditions. That clause stated:

“You must submit your claim for compensation directly to us and allow us 28 days (or such time as permitted by applicable law, whichever is the shorter) to respond to your claim, before you engage a third party to make a claim on your behalf. Claims can be submitted online or by writing to the Customer Relations Department [hyperlinked].”

It will be seen therefore that the Recorder was faced with a different issue to the one before me. Nonetheless, his judgment contained a helpful analysis of the legal principles which underpin the case before me.

The Recorder stated that section 136 of the Law of Property Act 1925 made debts freely assignable in a departure from the position at common law by which an assignment could only take place with the agreement of the debtor. However, even section 136 would not permit an assignment if the right was intended, on the proper construction of the contract, to be personal to the contracting party. He drew assistance from Chitty on Contracts where it was stated that a right is not personal in “cases where it can make no difference to the person on whom the obligation lies to which of two persons he is to discharge it”. He relied further upon the explanation of Lightman J in Don King Productions Inc v Warren [2000] Ch 291 where his lordship illustrated the difference between rights under the same contract which might be assigned by the employee with those which could not. The difference was whether the identity of the payee was material to the employer. As the judge put it:

“For this reason an employer cannot assign the benefit of an obligation of the employee to serve him, for the choice of employer is material to the employee: and the employer cannot without his consent transform a contract to serve him into a contract to serve anyone else. … But the benefit of any obligation of the employer to pay his salary, or of a publisher to pay royalties to an author, is (in default of a term of the contract to the contrary) assignable, since the identity of the recipient is a matter of indifference to the employer or publisher.

Having looked at the position in the context of the domestic law of contract, the Recorder stated the right to compensation was not a contractual one but rather one created by EU Legislation. It was a matter of the interpretation of that regulation as to whether the right was assignable.

The Recorder analysed the 2004 Regulation. He held that much of it required airlines to do things which were for the benefit of passengers who experienced delays and cancellation. He characterised those obligations as creating benefits which could only be enjoyed by the passenger. Examples of that might be the offer of food free at no charge to the passenger. The Recorder noted that Article 7 on the other hand imposed an obligation to pay a specific sum of money to the passenger without regard to that individual’s personal circumstances. It mattered not what specific inconvenience the passenger had or had not experienced. The same amount of compensation was payable to each passenger on the same flight. The Recorder concluded therefore that the obligation to pay a fixed sum of money was one where the identity of the obligee was not relevant to the obligor. It made no difference whether the compensation was paid to someone who was a former passenger, their personal representatives if they have died, their trustee in bankruptcy if they have been made bankrupt, or an assignee to whom the right to the payment has been assigned. In each case, the identity of the recipient was a matter of indifference to the airline. Accordingly the Recorder held that the right to a compensation payment under Article 7 was assignable.

It will be seen therefore that Recorder Jourdan KC was considering different points from those raised by this appeal. He was considering what might be described as the starting point: whether the right to compensation under the 2004 Regulation is assignable at all. He was then considering the effect of a different contractual provision to the one before me. It did not in terms purport to prevent an assignment, but rather the circumstances in which an assignment might be exercised. He concluded that where reference was made to “you” in the contractual provision, then upon an assignment it referred to the assignee rather than the passenger. The Recorder had gone on to consider whether the clause fell foul of Article 15 if it had the meaning for which British Airways had contended, namely that after an assignment the passenger had to make a claim personally before the assignee could take action. He concluded that it did

The appellant filed a skeleton argument with the appeal bundle. Its argument was that clause 19.11 was not a derogation from Article 15. In support of that conclusion, Mr Taylor characterised the clause as a partial prohibition upon assignment, save for certain defined circumstances. It was not a complete prohibition. He cited the decision of the House of Lords in Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 in support of the proposition that a contracting party might prohibit the other from assigning its rights under the contract. While the assignment might be valid as between the passenger and the respondent, as a result of the decision in Linden Gardens it would not be valid as against the appellant. He further argued that Judge Abrahams was wrong to follow the reasoning of Recorder Jourdan KC in Airhelp because that case had not included a prohibition clause.

Mr Taylor developed his submissions before me. He cited Chitty where at paragraph 23-044, the editors state:

“If rights arising under a contract are declared by the contract to be incapable of assignment, a purported assignment will be invalid as against the debtor … It was held by the House of Lords that, on the true construction of the prohibition clause, the assignment of the benefit of the contract, rather than merely vicarious performance, was barred; and that no distinction was here being drawn by the parties between barring an assignment of the right to future performance, as opposed to the fruits, of the contract nor between barring an assignment of unaccrued, as opposed to accrued, causes of action. Moreover there was no reason of public policy not to give effect to the prohibition clause, the legitimate commercial purpose of which was to ensure that the original parties to the contract were not brought into direct contractual relations with third parties.”

Mr Taylor acknowledged that the respondent’s argument was that the passengers’ rights arose from the 2004 Regulation rather than the contracts they had with the appellant. The proper analysis, he argued, was that without the underlying contract of carriage between passenger and the appellant, there was no entitlement to compensation. It followed therefore that Linden Gardens was of application and the appellant could restrict the circumstances in which the right to compensation might be assigned.

Mr Taylor listed what he submitted were valid reasons for the partial prohibition. In particular he referred to the difficulties of administering claims where the respondent’s name would appear each time rather than that of the individual passenger, the point being that it would be hard to distinguish one claim from another. He referred also to the potential difficulty if a passenger purported to assign rights to more than one claims management company. In that particular context he referred to what I take to have been an observation during the hearing before Judge Abrahams that where there were multiple assignments, claims could not proceed until the correct assignee had been identified.

Mr Taylor argued that Article 15 had to be seen its proper context. When it had been enacted, its focus was to maintain the passenger’s entitlement to the full amount of compensation under the 2004 Regulation as a whole. At the time it was enacted, nobody had foreseen the possibility that passengers might purport to assign their rights to third parties. The intention of Article 15 was to ensure that passengers received the full amount of compensation as provided by the 2004 Regulation. When understood in that context, he argued, nothing in clause 19 contravened the prohibition in Article 15. It did not purport to reduce or restrict the amount of compensation which fell to be paid. All it did was to place a restriction upon the identity of the person who could maintain the right to be paid it.

If I was against Mr Taylor on his argument that the focus of Article 15 was not simply upon maintaining the entitlement to the amount of compensation, he argued that I needed to consider the meaning of “derogation”. As this was a concept of EU Law, I needed to consider it in that context. However, I also had to consider the point in the light of Lipton v BA Cityflyer Ltd [2025] AC 154. In that case, the Supreme Court had to consider a claim under the 2004 Regulation relating to a flight which had been scheduled to depart before exit day as defined by the European Union (Withdrawal Act) 2018. The Supreme Court held that the governing law was as it stood immediately before exit day. The court was not bound by judgments of the Court of Justice of the European Union, although it may have regard to them. The point, Mr Taylor argued, went further. The decision of the Nuremberg court did not assist me after the departure of the United Kingdom from the European Union. It was a decision of a domestic court of a European Union member state rather than the Court of Justice of the European Union. I had to give the word ‘derogation’ its normal meaning. The question I needed to ask myself was whether the passenger was receiving any lesser right as a result of clause 19.11.

The court had to ask itself what rights were defeated by the appellant having placed a partial prohibition upon assignment. The reality, Mr Taylor argued, was that the clause neither purported nor had the effect of damaging, as he put it, any rights. Indeed, by assigning the right to compensation, the passenger placed a hurdle in the path to obtaining it. This was recognised by Judge Abrahams where in paragraph 19 of his judgment, as I set out above, he noted that the appellant would be entitled to see the assignment itself before paying compensation. As a result, Mr Taylor argued, passengers who purported to assign their rights actually made the process more difficult. That state of affairs however was of the passenger’s making rather than anything flowing from clause 19.11 which might be described as a material obstacle. Passengers could make their claims through the appellant’s portal with ease and did not need to complicate matters by purporting to assign their rights to a claims handling company to make the claim on their behalf. The respondent would have to revert to passengers to obtain proof of their bookings, without which there could be no finding of having flown on a flight which had been subject to delay or cancellation.

Quite aside from these difficulties, in this context Mr Taylor pointed again to the logistical problems which clause 19.11 legitimately sought to prevent arising in the first place. This was relevant, he argued, to my consideration of whether Article 15 was breached. He argued that there was a strong policy argument in favour of clause 19.11. It gave certainty to the appellant that only one person would ever be entitled to claim compensation. Mr Taylor accepted that once the appellant saw the relevant assignment upon which reliance was placed, it would be able to determine whether it had paid compensation to the correct party.

Mr Taylor argued that the decision of Recorder Jourdan KC in Airhelp did not assist me. As a result of his conclusions upon the proper construction of the contractual provision before him, he had not been required to consider whether the clause would breach Article 15.

Mr Taylor submitted that if I were against him on the application of Article 15, then it would not be necessary for me to consider the arguments under section 62 of the Consumer Rights Act 2015. If I did address the 2015 Act, I should conclude that the term was fair. It still enabled compensation to be paid. It did not restrict the circumstances in which it might be paid.

For the respondent. Ms Cochrane maintained that Judge Abrahams was neither wrong nor had he erred in law in his decision.

Ms Cochrane went through the judgment of Recorder Jourdan KC in Airhelp, drawing out the reasons he had given for the right to compensation being inherently assignable. She submitted that the Recorder had held that the right to compensation arose not out of the contract with the airline but from the 2004 Regulation. The effect, she submitted of a legal assignment of that right was that the assignee became the absolute owner of the chose in action and that once written notice had been given of the assignment, the assignee was entitled to and indeed did bring the claim in its own right and not on behalf of the assignor.

Ms Cochrane accepted that the House of Lords in Linden Gardens had established the principle that the parties to a contract could agree that an assignment of rights arising under it would be ineffective. That principle was not in dispute. Judge Abrahams had correctly applied that principle. That common law principle however was subject to what she characterized as the higher-level question, namely whether a term which purported to place a restriction upon the ability to assign amounted to a material obstacle under Article 15 of the 2004 Regulation.

Ms Cochrane noted that Recorder Jourdan KC had observed that on 30 July 2018, the Nuremberg-Fürth Regional Court gave judgment in Guidance Order 5 S 8440/17 holding that a bar on the assignment of the right to compensation in conditions of carriage was void under article 15(1) of the 2004 Regulation. She submitted that Recorder Jourdan KC had concluded that had clause 18 in British Airways’ terms and conditions had the effect for which it had contended then it would have “materially interfered with the right that a passenger would otherwise have to assign their claim to a company such as Air Help and then have nothing more to do with the claim”. The Recorder further concluded that if the term was void as a result of breaching Article 15 then it was not necessary to consider the effect of section 62 of the Consumer Rights Act 2015.

It was important, Ms Cochrane argued, that I have regard to the purpose of Article 15. In Dore v Easjet Airline Company Limited, [2022] EWCA Civ 1553, Birss LJ had said, after reviewing the decision in Bott v Ryanair:

“the legal question is whether those terms limited or waived the passenger's right to compensation contrary to Article 15 of the Regulation and (at paragraph 64) that Article 15 is concerned with matters of substance. Nevertheless there is no bright line between procedure and substance and therefore if a prescribed procedure is to fall foul of the Regulation it would have to put a material or real obstacle in the passenger's path. An immaterial obstacle will not have that effect.

In this context, she drew my attention to Eventmedia Soluciones SL v Air Europa Líneas Aéreas SAU, a decision of the Third Chamber of the European Court of Justice on 29 February 2024, where at paragraph 41, the court had said:

“In that context, it should be added that, having regard to the objective of ensuring a high level of protection for air passengers underlying, in particular, Article 15 of Regulation No 261/2004, and to the broad interpretation that, according to the case-law referred to in paragraph 33 above, should be given to the rights conferred on those passengers, that provision, in so far as it establishes that derogations from those rights are inadmissible, must also be interpreted broadly.”

Then at paragraph 43:

“Furthermore, having regard to the objective referred to above and in order to ensure the effectiveness of the right of air passengers to compensation, not only derogations or limitations that relate directly to that right as such, but also those that restrict the means for exercising that right when compared with the applicable statutory provisions, to the detriment of those passengers, must be considered to be inadmissible for the purposes of Article 15 of Regulation No 261/2004”

Paragraph 44:

“In order to ensure a high level of protection for air passengers and to enable them effectively to exercise their rights in accordance with the objective set out in recital 20 of Regulation No 261/2004, it is necessary to guarantee a passenger affected by a flight cancellation the freedom to choose the most effective way in which to defend his or her right, including by allowing that passenger to decide: (i) to approach the operating air carrier directly; (ii) to bring proceedings before the courts having jurisdiction; or (iii), where provided for by the relevant national law, to transfer his or her claim to a third party in order to spare him- or herself difficulties and costs that might deter him or her from taking steps personally in relation to that carrier with the prospect of a limited financial return.”

She drew my attention in particular to the third proposition. A provision which restricted that freedom would, Ms Cochrane submitted, constitute a material obstacle. Finally, in paragraph 45:

“It follows that a clause included in the general conditions of a contract of carriage that prohibits the transfer of air passengers’ rights against an operating air carrier constitutes an inadmissible derogation for the purposes of Article 15 of Regulation 261/2004”

As a result of section 6 of the European Union (Withdrawal) Act 2018, I could and indeed should take decision into account when considering the question of derogation. Although the decision had been handed down after exit day it was relevant to the issue which I had to determine.

The respondent’s position was that clause 19.11 did have the relevant effect under Article 15. It created a significant imbalance in the parties’ rights and obligations to the detriment of the passenger. It also excluded or hindered passengers’ right to the remedy to which they were entitled.

From the foregoing, Ms Cochrane argued that it followed that Judge Abrahams had applied the law correctly. The passenger’s right to compensation arose not from the contract of carriage but instead from the 2004 Regulation. Article 15 prevented the limitation or waiver of the passenger’s rights by way of derogation or a restriction. This aligned with the 2004 Regulation’s objective of ensuring a high-level protection for passengers. If passengers were to be able to exercise the rights under the 2004 Regulation effectively, then there must be a freedom to decide how to do so. If passengers did not want the inconvenience of initiating and pursuing claims through the County Court then they should be free to assign their rights to companies such as the respondent.

Ms Cochrane invited me to consider the argument under section 62 of the Consumer Rights Act 2015. She was constrained to accept that the respondent had not filed a respondent’s notice. She argued however that a judicial determination on the point would be of assistance. I could be assisted, Ms Cochrane submitted, by the guidance issued by the Competition and Markets Authority: Unfair Contract Terms Guidance, Guidance on the unfair contract terms provisions in the Consumer Rights Act 2015 (31 July 2015). She noted in particular that paragraph 5.33.1 stated:

“Contract law ordinarily allows purchasers to transfer (or ‘assign’) to someone else what they bought. Terms which seek to restrict this right are considered to be open to scrutiny as regards fairness.”

The point went further however. The Guidance contained a helpful flowchart which assisted the court in determining the point. Taking each stage in turn, Ms Cochrane noted first that it was a term in a consumer contract. Second, it had not been laid down by law. Indeed there was nothing in the 2004 Regulation which prevented a passenger from assigning the right to compensation. Third, it fell within the ‘grey list’ with the result that it was unlikely to meet the fairness test. The Guidance referred to Schedule 2 to the Consumer Rights Act 2015 as a grey list. As it stated at paragraph 2.38:

“It is a ‘grey’ list because it does not blacklist terms (see part 4 of the guidance for terms that are blacklisted by the legislation). A term corresponding to one of the types of terms in the Grey List is not necessarily unfair. It may be unfair in some circumstances but not others. Similarly a term may bear no resemblance to any of the terms listed and yet be unfair if it fails the fairness test described above. However, a suspicion of unfairness arises if a term has the object or effect of one of the types of terms listed.”

Fourth, it created a significant imbalance, contrary to the requirements of good faith, to the detriment of consumers. Against that imbalance, if I determined that the clause fell foul of Article 15, it did not negatively impact the appellant. This is because if the right to compensation under the 2004 Regulation was engaged, it had to be paid and as Recorder Jourdan KC had noted, the appellant was not concerned with the identity of the person to whom it was paid. Provided the payee was the person entitled to enforce the right, be it as passenger or a company such as the respondent who had taken a valid assignment of it, once the right had been honoured the appellant had no further liability.

Ms Cochrane addressed the appellant’s argument that the clause was there for a good reason, particularly in cases where a passenger had purported to assign the right to compensation more than once. She reminded me that the evidence on the point in the present case was limited to purported assignments to AirHelp and to SkyRefund, each dated 22 June 2022. I note that this was the same date as the assignment to the respondent. Ms Cochrane pointed out that there was no evidence of any other company purporting to enforce the rights under the 2004 Regulation. To the extent that this was an issue, Ms Cochrane pointed out that it was one of the appellant’s own making. In Dore v Easyjet Airline Company Limited, Males LJ, with whom Snowden LJ had agreed, had noted at paragraph 55 that:

“…we need not have too much sympathy for EasyJet. Its computer knows which flights have been subject to delay and knows the identities of the passengers on those flights. Although there was no evidence about this, it ought not to be difficult for it to contact passengers (or at any rate, those who have made the booking for passengers) who are entitled to compensation, but no doubt it suits EasyJet that a certain percentage of passengers will never bother to claim. So although EasyJet is not required to contact passengers in this way, in a sense any costs incurred in handling the claims of those passengers who do claim can be set against the savings achieved as a result of deciding not to pay compensation unless a claim is made.”

Any difficulty which arose from confusion in the event of multiple assignments was of the appellant’s own making. It chose to adopt a system whereby passengers had to make claims before receiving the compensation to which they were entitled under the 2004 Regulation.

I had the benefit of a more detailed consideration of the authorities than had been available to Judge Abrahams. His reasoning however was clear.

I respectfully agree with his analysis that the right under Article 7 of the 2004 Regulation is a right to compensation rather than a right to litigate. Before me, neither advocate appeared to suggest that he was wrong in this conclusion. I was not required to consider whether Judge Abrahams was correct to reject the argument that there was any element of maintenance or champerty.

In my judgment, Article 7 creates a right to compensation. This flows from the wording of the provision, where it states “passengers shall receive compensation amounting to” the sums set out according to the circumstances of the flight. I agree with Judge Abrahams when he stated that litigation might be a route to that compensation. I adopt the starting point of Males LJ in Dore where in paragraph 55 his lordship referred to fact that airlines had records of passengers and could therefore contact them to make payments rather than require them to make a claim. Where an airline does not do this or make payment under its portal, then a passenger has no option but to litigate. That litigation will enforce the right to compensation. As I say, the point was not pushed before me but I accept that the assignment is of the right to compensation rather than a right to litigate. Had it been a right to litigate, the arguments of maintenance or champerty might arise. The point was not pushed before me however and therefore I do not consider it any further.

Mr Taylor did not in terms submit that the right to compensation arose from the contract of carriage between the appellant and the passenger. Instead, he characterised the right as one which would not arise but for the contract of carriage. To an extent, this must be correct. My attention was not drawn to any provision of the contract of carriage which gave the passenger the same rights as exist under the 2004 Regulation. If an airline sought to grant the same rights as exist under the 2004 Regulation, one might think that any such clause would be otiose. If the airline sought to grant a right to a lesser amount of compensation in its contract of carriage, then it would likely fall foul of Article 15 if Mr Taylor’s analysis that its true focus was to maintain the passenger’s entitlement to the full amount of compensation be correct.

In my judgment however, it is the 2004 Regulation which creates the right to compensation. If the 2004 Regulation either in its original form or as re-cast following this country’s departure from the European Union did not exist, the passenger would not be entitled as of right to compensation. The contract of carriage does not create an express right to compensation.

The next question is whether, as a matter of principle, the right to compensation can be assigned. As I have set out, this was not seriously in dispute before me. I adopt the conclusions and reasoning of Recorder Jourdan KC in Airhelp that the right to compensation is one which can be assigned. The 2004 Regulation imposes a number of obligations upon airlines. Some of them relate to the passenger: the provision free of charge of food and accommodation being perhaps the more obvious examples. For the reasons given by Recorder Jourdan KC, those are likely not rights which would be capable of assignment. Quite aside from the practical impossibility of purporting to assign, they are ones which are personal to the passenger. The right to compensation for delay or cancellation though is, as the Recorder explained, of a different nature. The focus is not upon the identity of the passenger or upon the passenger’s personal circumstances. The 2004 Regulation imposes an obligation to pay a particular level of compensation according to the length of delay. The effect upon the particular passenger is irrelevant. The airline is not concerned with the identity of the person, individual or corporate. Provided that payment is made to the person entitled to it, the airline has discharged its observation. There is perhaps a degree of circularity in that observation: it is not because payment discharges the obligation that the right is assignable. It is because, as the Recorder set out, an obligation to pay a fixed sum of money is one where the identity of the obligee is not material to the obligor. Furthermore, adopting again the way in which the Recorder put it, there is nothing in the 2004 Regulation which suggests a concern to protect consumers from dealing with their right to a compensation payment by assigning it to a third party, with that third party assuming the burden of making and pursuing the claim, paying to the consumer a proportion of the amount recovered.

This starting point is in my judgment important. The right to compensation is one which arises from the 2004 Regulation. It does not arise from the contract of carriage between the appellant and the passenger. It is clear from paragraph 19 of his judgment that the Recorder took the view, in common with the parties, that the question of whether the right to compensation under Article 7 was assignable turned upon the interpretation of the 2004 Regulation which created the right, albeit that he did so by applying the jurisprudence of this jurisdiction in doing so. An example of this is to be found in paragraph 32 of the judgment. The court took the view that it was concerned not with a contractual right but one which was created by EU legislation.

I respectfully agree with this approach. For the reasons I set out above, the rights are solely to be found in the 2004 Regulation. They are neither replicated in nor incorporated into the contract of carriage. While Mr Taylor was of course correct when he said that without the contract, there would be no question of a passenger seeking to rely upon the 2004 Regulation, it is that legislation which is the source of the right. In order to board the flight the passenger would need a contract of carriage with the airline. In order to claim compensation in the event of delay, the passenger would need to rely upon the 2004 Regulation.

Recorder Jourdan KC did not refer to the decision of the House of Lords in Linden Gardens. Given the context in which the parties put the question before him, that is to say the construction of a right under the 2004 Regulation rather than arising from a contract, this is perhaps not surprising. Before me, Ms Cochrane said that the respondent did not dispute the principle that the parties to a contract might agree that certain rights were not assignable. If they did so, then while the assignment might be valid as between the assignee and assignor, the assignee would not enjoy any rights.

Viewed in the context of a right under the 2004 Regulation rather than a contract, Linden Gardens is not directly in point. I accept the analysis of Ms Cochrane: I am concerned with the assignment of a right which is derived from EU legislation. It is not a right under the contract between appellant and passenger. Judge Abrahams did not refer to Linden Gardens in his judgment and there is no suggestion that he was called upon to do so by way of clarification. Having reached my conclusion on the source of the right, that is to say the 2004 Directive, in my judgment Judge Abrahams did not fall into error on this point.

The next point I consider is whether the partial assignment breaches Article 15. I accept the analysis of Ms Cochrane when she characterised this as the higher-level question. The issue is whether the right to compensation under the 2004 Regulation has been the subject of a limitation or waiver which therefore breaches the its provisions. Even if the right had flowed from the contract, I think that one would have to consider whether Article 15 prevented the application of the common law rule that there could be a restriction upon assignment. As it is, clause 19.11 purports to restrict the manner in which rights under the 2004 Regulation might be enjoyed. It follows that one has to determine whether it infringes Article 15.

Mr Taylor is correct when he characterised clause 19.11 as a partial prohibition upon assignment. It allows an assignment in certain circumstances. It is not an absolute bar. The question I need to determine is whether such partial prohibition in the terms and conditions conflicts with Article 15.

I accept that since the United Kingdom’s departure from the European Union, section 6 of the European Union (Withdrawal) Act 2018 affects the way in which courts in this jurisdiction interpret European Union legislation. This is the case whether, as in Lipton, the events giving rise to compensation arose before exit day or, as is the case here, where they arose afterwards. I was not given detailed submissions on the effect of Lipton, but I conclude that the effect of section 6 of the 2018 Act is that I am not bound by any decision of the Court of Justice of the European Union handed down after exit day. I can have regard to anything done after that day by that court so far as it is relevant to any matter before me.

I accept Mr Taylor’s submission that the decision of the Nuremberg-Fürth Regional Court on 30 July 2018 is not a decision of the Court of Justice of the European Union. It is a decision of a court of a member state. While this court must of course respect the decision of a court in another jurisdiction, in my judgment quite aside from the withdrawal of the United Kingdom from the European Union, the extent to which it would have been of assistance would have been limited. Section 6 of the 2018 Act does not even permit me to have regard to the decision.

The same cannot be said however of the decision of the Court of Justice in Eventmedia. I accept the submission of Ms Cochrane that I should take this decision into account when deciding the scope and effect of Article 15. In my judgment that decision was clear that limitations which restrict the means of exercising the right to the detriment of passengers must be considered to breach the Article. As Ms Cochrane pointed out, it specifically gave the example of allowing a passenger to decide to transfer a claim to a third party. I also draw assistance from the way it was put by the Court of Appeal on 23 November 2022 in Dore. This binding decision places the search upon a “material or real obstacle in the passenger’s path”. I accept the submission of Ms Cochrane that this assists me in determining the purpose of Article 15.

Mr Taylor invited me to analyse Article 15 as having been enacted against a background of assignments of rights not having been contemplated. It followed that it should not be taken to apply to them. I do not see that the language of the Article, be it read through the lens of what was said in Dore or otherwise, permits such a conclusion. Even if it were not the case that the business model adopted by the respondent and others was in place when the 2004 Regulation was enacted, nothing was drawn to my attention which supported the way in which Mr Taylor invited me to construe it. His argument was that it was concerned with preventing attempt to place a limit upon the level of compensation which might be paid. There is a measure of support for that argument in the wording of sub-article 2. It makes express provision for what will happen in the event that a passenger has accepted compensation which is inferior to that for which the 2004 Regulation provides: the passenger is entitled to take proceedings to recover the balance. Even if one reads sub-article 1 in the context of what follows, there is nothing in it which appears to limit its scope. The decision in Eventmedia suggests that one should not so limit its scope. It expressly set out examples which went beyond an attempt to limit the amount of compensation which might be paid.

I gain assistance from both Eventmedia and the passage I set out from Dore. I cannot accept the submission that Article 15 is to have the limited scope for which Mr Taylor contended. I think it follows from the greater scope of his submissions that this must be correct. Mr Taylor set out a series of reasons which he submitted justified the imposition of the partial prohibition in Article 15. These would not be relevant considerations if the restriction applied only to preventing attempts to contract out of the amount of compensation payable. Among them were the logistical difficulties which the appellant would face in dealing with a number of claims where the claimant’s name is, for example, the respondent rather than the individual passenger who has the entitlement to compensation under Article 7. The point was made that it would be more difficult to differentiate the various claims. In my judgment however there are a number of answers to this. First, the Article is in stark terms. It prevents limitation or waiver. It does not provide for some form of assessment as to whether the term is reasonable or justified. Second, it is in the context of a regulation whose stated purpose is to provide rights for passengers. While they are not absolute in that airlines are able to deploy the defence of exceptional circumstances to which I referred above, the focus is very much upon the protection of passengers. Third, assistance can be gained from the passage which I cited in Dore in the search being for anything which is a material or real obstacle in the passenger’s path. The focus is very much upon the effect upon the passenger rather than any legitimate benefit a clause might bring to the airline. Fourth, as was pointed out in Dore, the airline knows which flights have suffered delays and knows the identity of the passengers affected by them. If it chooses to adopt the approach of placing the onus upon passengers actively to take steps to claim compensation, it has to accept the effect of Article 15.

Mr Taylor submitted that clause 19.11 had the effect of simplifying the process to the extent that if a passenger assigned the right, then proof of the assignment would have to be produced. To the extent that this is an inconvenience to the passenger rather than to the appellant, then it does not flow from the restriction. It flows from passenger’s decision to avoid the inconvenience of issuing and pursuing the claim through the County Court. It is not, in my judgment, a relevant consideration in determining whether the clause provides the material obstacle.

Mr Taylor invited me to consider whether passengers enjoy a lesser right as a result of clause 19.11. That was the way in which he put it. In my judgment they do. Although the clause does not exclude the right, it places a restriction upon the way in which it might be obtained. Passengers are not free to leave the burden of proceeding through the courts to companies such as the respondent. In my judgment that is a lesser right.

I conclude that Judge Abrahams did not err in his consideration of Article 15. Although he drew assistance from the decision of the Nuremberg-Fürth Regional Court on 30 July 2018, whereas I have not felt able to do so, he gave other reasons for concluding that the prohibition contravened the Article. I agree with them. He expressly referred to the background and fundamental reason for the 2004 Regulation having been enacted. I conclude that he had in mind the matters to which I have referred. In my judgment he did not err in his application of Article 15.

That leaves consideration of section 62 of the Consumer Rights Act 2015. I shall deal with relatively briefly. Judge Abrahams set out his conclusion concisely: he did not accept that paragraph 20 of the Second Schedule to the Act applied. Having had the benefit of more detailed submissions than time allowed before him, I conclude that clause 19.11 would be an unfair term.

It was not in dispute before me that a passenger is a consumer for the purposes of the 2015 Act. I consider first the wording of paragraph 20. It states:

Quite aside from that I accept Ms Cochrane’s analysis that clause 19.11 creates a significant imbalance in the parties, rights under the contract. The point is not entirely straightforward as the right to compensation flows from the 2004 Regulation rather than the contract or carriage. Nonetheless, it is the contract of carriage which purports to restrict the right. The contract purports to prevent a passenger from assigning the right, so as to leave a company such as the respondent to pursue the relative inconvenience of a claim through the County Court.

Although I did not hear detailed submissions on the point, I conclude that the CMA’s Guidance does not bind me. It expressly states in paragraph 1.1 that it represents the CMA’s understanding of the law. That being the case, it suffices to note that the four propositions drawn from the Guidance by Ms Cochrane and which I set out in paragraph 45 above strike me as consistent with what I have decided.

For the reasons set out above, the appeal is dismissed. Judge Abrahams did not err in his conclusions. Although I have differed very slightly with the manner in which he reached them as I have explained in relation to the decision of the Nuremberg-Fürth Regional Court on 30 July 2018, I agree otherwise with both his conclusions and his reasoning.