In two recent decisions, the County Court at Liverpool has held that infants carried in the arms of another passenger were not themselves fare-paying passengers, but had in fact travelled for free. As a consequence, the infants were not eligible for the fixed compensation available to fare-paying passengers under the Regulation (EC) No. 261/2004 (“the Regulation”).
Regular readers of this blog will be familiar with the Regulation which provides fixed compensation payable by air carriers to passengers who suffer long delays or whose flights are cancelled. Article 3 sets out the applicability of the Regulation and provides at article 3(3):
This Regulation shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. However, it shall apply to passengers having tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator. [Emphasis added]
Article 3(3) therefore makes it plain that a passenger will not be entitled to compensation under the Regulation if they either a) travelled free of charge; or b) travelled on a reduced fare, not available directly or indirectly to the public.
In the cases of Joshua Baldwin (A Child) v Ryanair Ltd (2015) (8 December 2015, unrep.) and Vago & Ors v Ryanair Ltd (2016) (29 February 2016, unrep.), the County Court at Liverpool considered the applicability of the Regulation to infants carried in the arms of another passenger.
In both cases, the infant claimants flew with the airline after an adult passenger in the same party paid a small charge of around €20/€30. Ryanair argued that this was simply an administrative charge, not a fare, and that the infant had in fact travelled for free. Alternatively, if the court took the view that such a charge was a fare, then such fare was not available to the public.
The Claimants in Vago argued that if the Claimants paid any sum at all in respect of the carriage of the infant, then it could not be said that the infant travelled “free of charge”. Ryanair argued that it was perfectly possible for sums to be paid by way of an administrative fee (or indeed for other amenities or services), but that the fare for the carriage of that passenger was in fact nil. Further, the infant did not have their own reservation, but rather was added to the reservation of the person who would be carrying the infant during the flight.
In Baldwin, District Judge Jenkinson found as a fact that the charge was an administration charge and not a fare. At paragraph 6(b) of his judgment the learned District Judge stated:
The airline cannot escape the obligation to compensate a passenger who would otherwise have been entitled to compensation by referring to what is in reality a fare as an administrative charge or similar. The Court has always looked at the reality and not the terminology (Street v Mountford  UKHL). The extreme situation proffered in support of the Claimant’s position, namely that the airline could simply re-brand all their “fares” as “service/administration charges” thereby circumventing the flight regulation, would not be tolerated. In the present case, the sum of €30 paid to allow Joshua [Baldwin] to travel as an infant in arms has the appearance of being a realistic administration charge than a fare disguised by another name. For the avoidance of doubt, I find that it was such an administration charge as opposed to a fare. I accept that there may be positions between these two extremes, which would need to be considered on an individual case basis.
District Judge Jenkinson also found that Master Baldwin’s claim would in any event be excluded by Article 3(3) on the basis that he was not travelling on a fare available to the public as the facility was “only available to children who meet the specified age criteria travelling in the arms of an adult.”
In Vago, District Judge Baldwin described the Claimants’ argument that if any sum was paid at all in relation to an infant being carried, this amounted to a fare as being, with respect, naïve. He stated that he agreed with District Judge Jenkinson’s reasoning that the charge was an administrative charge and made a finding accordingly, dismissing the infant claimant’s claim. The judge did not, however, make any findings on the alternative basis, even though this had been argued before him.
District Judge Jenkinson’s analysis (whose reasoning District Judge Baldwin followed in Vago) of whether the infant travelled free of charge is certainly correct as was the finding that the infants travelled for free on the factual basis of the two Ryanair cases. This will no doubt give heart to carriers in a climate of ever increasing liability to passengers under the Regulation; however as District Judge Jenkinson considered, carriers cannot re-brand fares as administration charges in order to sidestep liability in such cases. If, however, the reality of the situation is that the sum paid was on an objective examination merely an administrative charge, then it must follow that infants in arms will not be entitled to compensation under the Regulation.
Whether individual cases satisfy this objective scrutiny will be a matter that each individual carrier will need to consider by an examination of their applicable terms and the procedure of how such infant bookings are made. It is conceivable that in circumstances where an infant is issued their own ticket or reservation and is said to have paid a fare, even in the case of a low fare, then it will be difficult to sustain an argument that the infant was not a fare paying passenger and therefore not entitled to compensation under the Regulation.
The finding of District Judge Jenkinson on the alternative basis of non-availability of the fare to the public, whilst on the face of it helpful to carriers, is certainly the less secure of the two findings. Although it is arguable that the class of person able to benefit by the infant in arms facility is highly restricted (i.e. an infant under a prescribed age who is to be carried by another member of their party), and therefore not available to the public, the facility does not appear to be restricted in any other way to preclude any qualifying member of the public from taking advantage of it. That is to say seemingly every member of the public who falls into those prescribed categories and who wants to book the facility would be able to do so. It is easy to see that whilst differently constituted courts will follow District Judge Jenkinson’s reasoning on the administrative charge, they may well be less ready to follow the finding regarding availability to the public. It is telling that District Judge Baldwin declined to make a finding on this point in circumstances where he could have accepted wholesale the reasoning of District Judge Jenkinson given the identical factual basis of the two claims.
Timothy Salisbury was instructed on behalf of Ryanair by Ince & Co LLP in the case of Vago & Ors v Ryanair Ltd.