Jurisdiction(s):
United Kingdom

Smyth v British Airways plc and easyJet: EU261 representative claim struck out; CPR 19.8 ‘same interest’ not met; court criticises funding-led model and deductions

Published on: 12 September 2024

Published by a LexisNexis Dispute Resolution expert

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Article summary

Smyth v British Airways plc and another company [2024] EWHC 2173 (KB) What are the practical implications of this case?

This ruling underscores the real-world and procedural hurdles to advancing representative actions.

The court accepted that such claims call for a contemporary, adaptable approach, yet maintained the claimant cohort must share the same interest, or something near to it.

If the initial class features many, markedly differing interests that demand individualised assessments, the action will, without a viable plan, probably fail to satisfy the rule’s jurisdictional threshold.

Accordingly, only a class with genuinely aligned interests will meet the rule’s threshold at the jurisdictional gateway stage.

The principal points from this case, relevant to future representative actions, include:

CPR 19.8 demands that the proposed claimant group hold the same interest in the proceedings. Although ‘divergent’ interests can be tolerated (as recognised by the Supreme Court in Lloyd v Google LLC) [2021] UKSC 50, divergence can become so extensive that members cease to share the same interest
In determining whether the claimant class has the same interest, the group must be clearly delineated at every stage (starting at the outset). It is impermissible to define the class by reference to the result...

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