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The lawsuit against British Airways for the 2018 data breach is proceeding – should you join?

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If you were impacted by the British Airways data breach in 2018, things are starting to get interesting.

Between June and 5th September 2018, the data of people making a transaction at ba.com or BA Holidays was compromised and passed to an unknown third party.

British Airways data breach claim

BA originally stated that the following data was shared:

  • email address
  • postal address
  • credit card number
  • expiration data
  • CVV

….. but this was later found to also include log in and travel booking details as well name and address information.

Passport and frequent flyer data was not compromised as that is not transmitted during the payment process.

500,000 people were impacted by the breach.  If you were included, you will have received various emails from British Airways at the time.

The Information Commissioner’s Office (ICO) was not impressed.  In July 2019 it proposed a fine of £183 million.  See the ICO’s statement here.  This was eventually reduced to £20 million, primarily because of the impact of covid on the airline, although it was made very clear that BA had acted illegally in its treatment of passenger data.

The £20m did not go to impacted customers.  It was divided up between the various European data authorities, with the UK share going directly to the Treasury.

But you can now make your own claim ….

In October 2019, Mr Justice Warby gave permission for a passenger-led case to proceed.  For 18 months now, various groups of lawyers have been planning a group litigation order.

As you may have seen from TV advertising over recent weeks, there is now a final push to get impacted flyers to sign up.

Interestingly, not many people have signed up.  Back in late 2019, when the group litigation order was granted, the largest litigation group had signed up just 5,000 people.  Press reports this week suggest that the total number of people now involved is just 16,000.

Given that Head for Points has around 50,000 readers on an average day, if you include our email readers, and is visited from over 350,000 unique devices per month, the law firms haven’t made much impact.  We could probably have got together a group of 16,000 people ourselves.

Many readers have asked us for guidance

We have receive a substantial number of emails in recent days, since the TV advertising began, asking for our opinion.

Back in October 2019 we said that we would do some digging into the various options and report back.

What happened next, of course, was covid and a financial disaster for the airline industry.

As regular readers will know, British Airways has made over 10,000 redundancies in recent months.  The requirement for covid tests for all flyers coming to the UK from tomorrow, plus the current restrictions, are causing it additional problems.  Any large fine against the airline will only weaken its financial position further and lead to more redundancies.

The group litigation is also – let’s be clear – primarily there to line the pockets of the lawyers.  35% of any money you receive will go to them.

There are some spurious numbers being thrown around at the moment about the compensation you may receive.  One oft-quoted number, put around by the lawyers, is a £3 billion total pot.  Given that this is bigger than the fine Boeing paid for the 737 MAX crashes or indeed BP paid for the Deepwater Horizon oil disaster, this is clearly not happening.

At best, it may work out at a couple of hundred pounds per claimant, less 35% for the lawyers.

That said, this will be a landmark case for UK law as it is likely to be the first major case involving a group litigation order.  No-one knows how it will go and the result will impact many future cases.

What do we recommend you do?

Head for Points has misgivings about encouraging readers to join a process.  It will enrich the lawyers at the expense of a struggling airline and its employees, with claimants receiving a relatively nominal sum in their pockets.

For this reason, we will not be recommending any particular legal group to join.

We are not saying that you shouldn’t join the action if you are entitled to – this is clearly up to you – but it isn’t something that we are comfortable promoting given the current state of the airline industry.

I should flag that the Financial Times reported yesterday that:

“BA indicated it was prepared to settle claims in a letter filed with the court last week and seen by the Financial Times.”

In response, however, one of the law firms involved emailed participants to say:

“We can confirm that, to the best of our knowledge, [the FT article] is factually inaccurate.”

Assuming this is correct, it is not clear if a) the lawyers will accept the settlement and b) whether others will be allowed to join the settlement if BA agrees a sum.  It is also not clear if the sum would be fixed – so your payout is reduced if more people join – or per person, uncapped.  However it works out, it does imply that your chances of receiving something are better than zero.

I spoke to a senior legal friend – and HfP reader – and he believes that BA will lose the case.  The only question is whether the court decides that claimants need to prove direct financial loss before they can receive a payment.

Comments (170)

  • Peter says:

    agree

  • Rupert says:

    Don’t forget, the maximum fine is up to 4% of turnover. BA got off very lightly.

  • kitten says:

    Remember when BA got sued in the USA for being caught red-handed charging fuel surcharges illegally there was a big noise. But somehow BA slid out of that by handing claimants avios instead of cash.

    I would say there’s more risk of dilution of the value of people’s avios holdings, than to BA’s cash here.

    Oh, and strangely enough BA is still charging at least the same amount in ‘other’ surcharges, as the amount they were told they’re not allowed to charge for YQ. Go figure.

    • ChrisC says:

      As part of the court ordered settlement those involved were offered a CHOICE of cash or avios – amounts determined by how many redeploy tigons you had done.

      Some people chose avios and some chose cash. Their decision which they took.

  • David S says:

    If BA thinks it is liable, it would have previously have registered a Liability in either its 2018 or 2019 accounts. Surely something the Auditors would look at when they review the accounts for those years.

  • AndyGWP says:

    I won’t be claiming. I feel the fine BA received is sufficient and will serve its purpose.

    I also never claimed for the VAG emissions scandal (though eligible)

    I also haven’t claimed tax relief because I’m working from home (unlike some of my other colleagues who are also making a cash saving by working from home)

    Not everyone’s the same, and not everyone will agree on the stance needed to be taken, however I thought it was a well written article and it helps me believe I’ve made the right decision for me.

    Thank you

  • Terence Conlon says:

    If I claim against BA for the Data Breech is there a chance that BA will kick me off it’s Executive Club membership?

    • Rob says:

      They have the right to do so. I would be VERY surprised if taking a settlement payment involved you agreeing to have your BA account terminated, but BA could do this.

  • ianjif says:

    Presumably BA has cyberinsurance and the insurers will be paying the compensation – albeit that BA’s premium will go up in the future to reflect claims expereince. If they don’t have cyberinsurance they should, based on their track record. If they cant get it, perhaps the insurers have decided the management controls over IT risks were not good enough

  • The real John says:

    A better analogy to luggage loss would be if BA had let people look through your luggage whilst it was in their care.

    Some people had items in their luggage replaced with similar items of lower quality. When you got your luggage back, your stuff had been rifled through, but you can’t tell if anything was actually replaced.

    On another point when some law firms initially started generating interest for class actions, I was tempted to sign up but I read in the terms that plaintiffs could potentially be liable for some costs in certain specific situations. I thus decided not to bother proceeding especially as I have not suffered any losses, and I didn’t try to understand those terms in any further detail. Can anyone comment on the risks of being liable for some costs if you did proceed and the lawsuit failed / partially failed?

    • MM says:

      +1. i would be also interested to know

      • Rob says:

        As per my lawyer friend, it is very possible that BA loses BUT the court says that only people who can show evidence of card fraud on a card used to pay BA are liable for anything.

        A quick Google search for theft by baggage handlers will, by the way, confirm how many people are convicted for this.

    • James says:

      One of the law firms that has been mentioned elsewhere here claims that it has taken out after the event insurance to cover the risk that BA’s costs become payable and notes “You will not have to pay anything if we don’t win the claim. This is what we mean by ‘no-win, no-fee’. In the unlikely event that we lose the case, the ATE insurance we took out on your behalf (at no cost to you) will cover any adverse court or legal fees.”. I suppose there is a risk that the ATE policy doesn’t respond if the terms of that policy are breached, either inadvertently by you as claimant or by the law firm (and the terms of that policy do not seem to have been made public), but on the basis that the law firm seems to carry out an exercise to verify your eligibility (presumably aligning with criteria for qualifying for ATE protection) and they represent on their website that “You will not have to pay anything if we don’t win the claim”, there might be some recourse against them/the SIF.

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