Further confusion reigns this week over additional fees charged to air passengers for de-packaged services ancillary to flights. This time the spotlight is on Wizz Air, the Hungarian low-cost airline.
Wizz Air appears to have as many as four different options for flight check-in, each incurring a different fee. First, there is the 'Auto Check-in' service which (as it says on the tin) automatically checks in travellers for their flights two days before the scheduled departure time; the use of this service incurs a charge of Ł2.50 per passenger per flight. Second, there is the (manual) online check-in process, for those organised enough to check-in for their flights in the day before departure; this remains free. Third, there is the option to pre-book check-in at the airport; this costs Ł11.50 per passenger per flight. Fourth, is the option to check-in at the airport without pre-booking; this costs Ł36 per passenger per flight.
The problem, as ever, is not so much in the price differentiation but in the communication. In particular, the Wizz Air fee table available online, under 'Booking Fees', has as its sixth entry 'Airport check-in', beneath which is written in a smaller and lighter (grey), small-caps font 'via wizzair.com'. Then, as its tenth entry, the same words 'Airport check-in', beneath which is written in the smaller, greyer, small-caps font 'airport'; the former, as above, costing Ł11.50 per passenger, the latter costing more than three times as much at Ł36.
The risk of course is therefore a passenger (as appears to have been reported this week) getting easily confused, reading 'Airport check-in' at Ł11.50, and not realising this is only an early-bird, online pre-booking option; not understanding what the benefit is of doing something described as 'airport check-in' online; and turning up to the airport expecting to pay Ł11.50 and being hit with the Ł36 charge.
Is this fair?
Under the Consumer Rights Act 2015, it is strongly arguable that the presentation of these pricing options within the fees table is not transparent. Lack of transparency in a written term of a consumer contract is a breach of section 68. However, such a breach would be a matter for regulatory action, and is not actionable by the consumer unless the term is also considered to be unfair (in the determination of which lack of transparency may be relevant but is not sufficient). To be unfair, the term would need to give rise to a significant imbalance in the parties' rights and obligations, to the detriment of the consumer, which is contrary to the requirement of good faith (section 62(4)): such being determinable in part by reference to the indicative examples in Schedule 2. In the context of the airport check-in fee trap, it is difficult to see such an argument succeeding; the closest examples in Schedule 2 might be those in paragraphs 14 and 15, in effect conferring power on the trader to alter (increase) the price after agreement without giving the consumer the right to cancel.
Alternatively, the consumer may have recourse to the Consumer Protection from Unfair Trading Regulations 2008. Under this instrument, the presentation of the fees in the Wizz Air table could be regarded as misleading. If so, the next question is whether it is a misleading action (regulation 5) or omission (regulation 6). Again, misleading omissions would give rise to regulatory action and not individual consumer claims; and the more powerful provision (from a consumer perspective) is regulation 5. Regulation 5(2)(a) read with 5(4)(g) means that information will be misleading where its 'overall presentation in any way deceives or is likely to deceive the average consumer' in relation to 'the price or the manner in which the price is calculated'. The threshold for 'deceit' is understandably high.
Breach of regulation 5 opens up a special right of redress under Part 4A of the 2008 Regulations, where the prohibited practice (the deceiving presentation) is a significant factor in the consumer's decision to make a payment for the supply of a product (termed a 'transactional decision'), which is granular enough to capture the purchase of an ancillary product such as a check-in service. Each case would turn on its facts, but, powerfully for the consumer, where a consumer can establish the right of redress under Part 4A, he then has three choices - unwinding the contract, obtaining a discount, or claiming damages. The first is unlikely to be relevant in the present context; the third would presumably be calculated as the difference in the prices of the two products (Ł24.50); the second provides a simple mechanism to compensate the consumer who has been misled into buying a product which is worth less than the consumer had agreed to pay, while also including a civil penalty aspect, which could give rise to a consumer windfall. Discounts are set out in pre-set percentage bands in regulation 27I starting at 25% for a prohibited practice which is 'more than minor'. There is no discount for any practice which is considered 'minor', and so the challenge for the consumer would be overcoming such a hurdle.
The likely conclusion is that Wizz Air's practices and terms and conditions do not meet the thresholds for individual consumer action, even if as the tabloids report, the fee presentation is somewhat 'sneaky'.
About the Author
Thomas Yarrow was called in 2018. Before joining chambers Tom was a civil servant working in various government departments, including as a policy advisor on the UK-EU Withdrawal Agreement at the Department for Exiting the European Union. During pupillage he worked with the Government Legal Department, practising in public law in the fields of public international law, justice and security, human rights and immigration. He has regularly appeared in judicial review proceedings for the Secretary of State for the Home Department, and as a member of the Attorney General's 'junior junior' scheme, he is able to take instructions directly from government clients. He now practises in all of chambers' practice areas and is an enthusiastic and valued member of the travel team.
Costs budgeting and fair hearings
The Central London hearing centre of the County Court has been keeping the senior courts busy recently, with R (oao Koro) v. County Court at Central London [2024] EWCA Civ 94 decided on 8 February 2024 and Woolley v. MoJ [2024] EWHC 304 (KB) decided last week. Koro was covered by Conor in last week's Dekagram.
The facts of Woolley were these. Daniel Woolley was assaulted in prison. He claimed against the prison for failing to protect him. The prison denied liability. The value of the claim was up to Ł80k. By the date of the CCMC the Claimant's legal spend was Ł50k and he sought a budget of a further Ł70k. The Defendant had spent Ł20k and sought a budget of Ł40k, which the Claimant agreed. At the hearing at Central London, the judge gave the Claimant a budget of Ł26k - which meant that the Claimant had substantially less to bring the case to trial than the Defendant. The judge refused to have regard to the Defendant's budget. In the judgment of the High Court (Kerr J, assisted by Costs Judge Brown), the judge thereby disregarded a relevant consideration. This, together with the language the judge used in the hearing, not of the utmost courtesy, was enough to allow the appeal. (NB the fact the Claimant ended up with a lower budget than the Defendant, was not part of the High Court's reasoning: this judgment is solely about procedural fairness at the costs budgeting hearing.)
In Koro the Central London County Court managed to breach a litigant's Article 6 right to a fair hearing of his claim. Following a series of administrative cockups by the court, the applicant's claim had come before a circuit judge on appeal (the same judge whose language Kerr J described as "indefensible" in Woolley). The judge, using language which Stuart-Smith LJ described as "intemperate", failed to let the Claimant's counsel develop his submissions and permitted the Defendant, who had no locus at the hearing, to run an argument which they were months out of time to raise and had raised for the first time that morning. And then found for the Defendant on that argument.
HMCTS have, over the last 13 years or so, closed and sold numerous county court buildings in Greater London, including the Central London County Court in Regent's Park, and turned all the other courts - from Brentford to Romford, Barnet to Bromley - into satellites, channelling civil business into Central London at the Thomas More Building at the RCJ. Did this reduction in the costs of running the other courts lead to a commensurate increase in the resources provided to Central London? Did this reorganisation build a civil justice powerhouse at the RCJ, equal to the needs of a metropolis of 10 million? Reader, it did not. The judges appear to be pretty much on their own, not much more than an ejudiciary email address between them and the throngs of litigants in the vestibules. Even the judges describe the administration as an abyss. I think my language would be pretty intemperate, if I had to work there.
About the Author
Ben Rodgers was called in 2007 and is a cross border practitioner with a particular specialism in accidents at sea, but he also undertakes general personal injury, insurance and commercial work.
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WIZZ AIR HOLDINGS PLC 
