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BA forced by the courts to refund £5,000 of non-refundable tickets – unreasonably?

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I am generally very pro Which? magazine, although in my mind I tend to think of it as peaking in importance in the 1980s and becoming less relevant and less ‘part of the conversation’ as the years moved on. I may be wrong, and I do believe that there is a need for a totally unbiased consumer publication.

In the last few days, Which? has been getting media coverage for the help it gave a reader in securing a £5,000 flight refund from British Airways.

Which? magazine and British Airways refund

Let me simplify the story for you. Remember that this all took place in 2019, pre covid.

  • man buys two £2,500 non-refundable, non-changeable business class flights to Hawaii
  • man tries to change his flight and is told to take a hike
  • man gets Which? to sue BA on his behalf
  • Court tells BA to refund his £5,000

British Airways seems to have been badly treated here

In general, the airline world works like this:

  • fully flexible business class passengers subsidise leisure passengers
  • putting restrictions on cheap tickets is actually beneficial for leisure passengers, because otherwise such tickets couldn’t be so cheap – airlines can’t take the risk of business passengers being able to trade down

When you buy something, certain ‘norms’ are implicitly accepted in the contract. You can’t walk out of Waitrose with your food and pop back later to pay the bill. If you are arrested after walking out of Waitrose with unpaid-for food, you cannot give as your excuse the fact that ‘there are no signs up saying that I can’t pop back and pay later’.

Is it now implicitly understood that the purchase of a flight ticket is non-refundable and non-changeable? I would say that, yes, it is. Customers have been trained by 20 years of low cost carriers to understand that your sale is ‘final’ unless you are told otherwise.

The reason that BA lost the case, however, was that the judge did not believe that the non-refundable, non-changeable rules were highlighted prominently.

I accept that this case has two caveats:

  • they were business class tickets, and potentially the public may mistakenly believe that business class tickets have flexibility built-in which economy tickets do not, and
  • there were £2,500 tickets, and potentially the public may mistakenly believe that a £2,500 flight ticket would have flexibility built-in – although regular business travellers would know that a fully flexible ticket would cost nearer £5,000 than £2,500

Neither of these are given as reasons for the courts decision, however. It is purely down to the lack of prominence given to the change and refund rules.

This make a mockery of another recent BA case …..

We recently covered the story of a HfP reader who took BA to arbitration to get his seat reservation fees refunded.

He had cancelled his flight due to covid restrictions and expected to be refunded for over £400 of Club World seat reservation fees. BA refused and the arbitrator found in favour of the airline, even though the seats had never been occupied.

This is despite the fact that:

  • the small print re non-refundability of seat reservation fees is really hidden away – far more so than the rules on ‘no refunds’ on ticket sales
  • I believe that ‘Mr Average’ would expect that his seat reservation fees would be refundable if he cancelled his flight and that if they were not then it should be made very clear

My personal belief is that BA’s actions here may even breach the Unfair Contract Terms Act 1977.

However, the reader lost his £400.

Conclusion

Whilst there may be extenuating circumstances in play (the fact that the tickets were in business class and cost £2,500 each), it was odd in 2020 to have a court decide that a flight ticket should, by default, be refundable and changeable unless significant and obvious warnings are given to the purchaser before they click ‘Buy’.

I am guessing that this was a Small Claims Court case and that the judgement will therefore not be binding on future cases.

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Comments (124)

This article is closed to new comments. Feel free to ask your question in the HfP forums.

  • Bob says:
    2 Mar2 March 05:35

    My personal view is that Which? seems to have gone from being about offering advice and reviews for the consumer into desperately seeking the lowest common denominator by trawling Facebook groups to ‘find’ cases to promote.
    In terms of this case, it seems they have got lucky and the whole thing seems to be almost an advertising feature for their legal services – a paid for service. So not exactly unbiased. I bet they wouldn’t be so keen to publish similar cases where they have not been successful.

  • ChrisC says:
    2 Mar2 March 05:43

    Perhaps BA had lost the judges luggage or failed to top up their drink on a previous flight.

    That’s all I can think of as a reason for them making this irrational decision.

    • ChrisC says:
      2 Mar2 March 05:46

      And yes Rob as an MCOL case it’s not precedent setting but I guess people making similar claims will be able to cite the Which? article to pray in aid their case. But that doesn’t mean a other judge has to accept it.

      • NFH says:
        2 Mar2 March 07:45

        Money Claim Online is a way to issue a County Court claim. Its use has no bearing on whether the claim sets a precedent. Even if a claim, issued via MCOL or otherwise, is allocated to the Small Claims track of the County Court, upon appeal it could set a precedent.

        • Lady London says:
          2 Mar2 March 14:11

          that’s why hell will freeze over before any airline would appeal this decision.

    • TGLoyalty says:
      2 Mar2 March 06:36

      The rational is pretty clear.

      You can’t hide important terms behind hyperlinks in small text.

      The “norms” thing is not how consumer law works at all. People are surprised gay they can use the sales of goods act to return expensive TVs after they have broken well outside the “warranty” period as you expect goods of that value to last longer than a couple years.

      It’s not the norm for items to be non refundable and non changeable.

      And not being able to change/refund £2,500 tickets 6 months out is nothing like not checking out at Waitrose when you go shopping.

      Rob is showing bias towards his clients here.

      • Andrew says:
        2 Mar2 March 07:29

        Totally agree TG

      • Ken says:
        2 Mar2 March 07:48

        Not sure if bias towards clients is fair, but certainly guilty of assuming everyone knows implicitly the t&c’s.

        The t&c’s are either clear and obvious, or they’re not.

      • meta says:
        2 Mar2 March 07:54

        There is another thing to consider and reason why Waitrose is a totally wrong analogy. There is a difference in consumer law between buying something online or over the phone (distance) and buying something in a shop.

        When buying online significant terms have to be absolutely clearly written and spelled out to the customer before he clicks on the pay button. This is not the case for in-person buying.

        We don’t know the full reasoning the judge gave. The only thing this story is based on is another article which is written by another publication. Pure hearsay without verifying full facts.

        • John says:
          2 Mar2 March 08:09

          Perhaps BA’s defence was not very good and just involved bleating about how the terms were available if the plaintiff had just gone looking

          You wouldn’t let any other business get away with hiding important terms in small print

          • meta says:
            2 Mar2 March 08:21

            BA couldn’t have any defence. The claimant just needed to show the current design of BA’s website for the judge to rule in his favour.

            Most of us here know where to look, but for average customers it is not. For example when you buy on the app, you need to touch on the hyperlink which says “About your ticket” to find out ticketing terms. When you purchase on the desktop, terms are below buy now button.

      • Super Secret Stuff says:
        2 Mar2 March 08:40

        I agree with the analysis. The comparison is in no ways fair.

        Not sure about the favourable treatment of a paying client. It would have been best to just ignore it if that is what HfP wanted to do.

        • Rob says:
          2 Mar2 March 09:51

          It IS the norm for flights to be non-changeable and non-refundable. Anyone under 60 would accept that. I admit if you’re 60+ you might still have some memories on how it was in the 1970’s.

          • marcw says:
            2 Mar2 March 10:45

            But things change. There used to be a norm that all flight tickets included baggage allowance… and that’s not the case anymore. And here, BA makes sure it shows your baggage allowance while selecting fares. Wonder why they highlight it, but they don’t highlight whether your ticket is refundable or changeable.

          • TGLoyalty says:
            2 Mar2 March 11:18

            Actually isn’t the norm for most business class tickets I’ve booked to be non refundable nor non changeable.

          • Super Secret Stuff says:
            2 Mar2 March 13:37

            I agree with TG here, it is by no ways a norm for business class tickets. The reference to business (and first) suggests a sense of exclusivity and favourable terms you are paying for. To me that means, any business class ticket should be changeable and refundable.

            That said, when spending £5k of your own money and can’t be bothered to check if it is refundable you deserve to loose it.

      • Al says:
        2 Mar2 March 09:24

        Clearly lots of us are used to booking airline tickets, especially on BA, and are used to the various terms and rules which come attached. Which? are trying to stand up for the consumer who might not be so savvy and do this far less regularly.

        If I look at other airline booking sites, lots of them have very clear ‘key facts’ type information with large crosses, ticks and other indicators showing whether a fare is changeable or cancellable. This all happens before I select my fare.

        If I look at BA’s site, I select my fare and it’s only at the ‘review’ stage that I see the ticket conditions. In fact, it’s possible to not to see this information if you don’t scroll down to the bottom of the page, and just get as far as the ‘agree and continue’ button.

        Now obviously none of us are going to make mistakes booking fares. The question we should be asking is whether a consumer could get through the booking process without knowing exactly what the ticket conditions are.

        I agree entirely with the judge. BA are lagging behind others in this regard and it could be clearer (again, not for our benefit, but for the consumer who rarely books a ticket).

      • Ben says:
        2 Mar2 March 10:19

        Wholly agree. Airlines believe they have some sort of exceptional status and have got away with it far too long. Look at the subsidies they all recently took (after saying they wouldn’t!)

      • cinereus says:
        2 Mar2 March 11:03

        +1. Consumer regs are pretty clear about this too.

  • Catalan says:
    2 Mar2 March 05:57

    For me Which? magazine stopped being relevant after VHS beat Betamax in the video format war!

    • Sandgrounder says:
      2 Mar2 March 07:03

      Betamax was so much better as well.

      • harry b says:
        2 Mar2 March 10:21

        Yes indeed but strangely, because I have no love for Philips technology normally, the Philips/Grundig Video 2000 system was the best of all .and by some margin

  • Stu says:
    2 Mar2 March 06:23

    It made me laugh when I read the “can’t walk out of Waitrose …” bit. We did just that once with a fig tree we’d picked up in their garden section outside on the way in. Got home and realised we’d not scanned it, rang the store to apologise and they told me just to bring the label and pay next time we were in. Before the next time we visited we got some ‘money off your next shop vouchers’ in the post so the tree ended up being more or less free anyway!

    • J says:
      2 Mar2 March 09:27

      My daughter had a toy in the trolley that we didn’t spot (we were self scanning) and only noticed at the car. Took it back and the staff decided to gift it to her – waitrose now have a pret style policy where staff are encouraged to gift items. This has resulted in my kids now finding toys, and trying to game staff with cuteness, which works far more often than I’m comfortable with! If only they’d locked them in the cells for an hour the first time…

  • Rob B says:
    2 Mar2 March 06:31

    Nothing should be read into this County Court decision. The quality of judge in the County Court is variable to say the least and this non-binding decision is just what one very junior judge thought that day. If you ran this case 10 times you’d get 10 different judgements.

    • Lady London says:
      2 Mar2 March 14:19

      correct, also risk of perverse decision is even higher if CEDR is used instead of MCOL.

  • Cheshire Pete says:
    2 Mar2 March 06:42

    When you buy a non refundable advanced train ticket, with Avanti as an example, you can in fact get it refunded and pay the difference for a new ticket for a £10 admin fee. Seems a very modern, fair and reasonable system to me, worthy of the 21st Century.

    A bit like the Which? being accused of living in the 80s, perhaps some airline practices are also a bit from the 80s. If anyone has learnt any lessons what so ever from the way airlines dragged their feet over pandemic refunds, it’s that buy your ticket as late as possible, and don’t get tied in to these draconian ticket conditions in the first place.

    • John says:
      2 Mar2 March 08:12

      You can’t get it refunded, only exchanged (as you said).

      I recall Southern may have let you refund an advance ticket without admin fee if it wasn’t collected from a machine. And Crosscountry I believe lets you change tickets without admin fee if it’s a barcode ticket that can be printed/displayed on a device

      • Rob says:
        2 Mar2 March 09:54

        Whereas I had a Great Western ticket for November which I couldn’t use due to the tier lockdown in the place I was meant to be visiting, and I was forced to accept a Great Western gift voucher I am unlikely to use.

        • _nate says:
          2 Mar2 March 11:43

          Always buy via CrossCountry as their no fee change policy works on any operator’s trains.

  • Ken says:
    2 Mar2 March 07:11

    The walking out of Waitrose comparison is simply ludicrous. By the age of 18 practically everyone will have bought stuff from shops hundreds of times.

    The low cost carriers comparison is equally specious. I’d imagine less than 2% of people will ever book a £2.5k business fare.

    You are assuming implicit understanding of what to the man on the Clapham omnibus is a niche product.

    • Rob says:
      2 Mar2 March 09:59

      …. which I say clearly in the article, but thanks for repeating it 🙂

  • NFH says:
    2 Mar2 March 07:27

    Why do you say that “man gets Which? to sue BA on his behalf“? This is totally false and nothing in the story suggests this is the case.

    The story makes it clear that the man issued court proceedings himself, having obtained legal advice from Which Legal Service. I have been using Which Legal Service for 14 years, and it most definitely does not represent its customers. It is clearly an advice-only service – and a very good one, particularly for travel.

    • Ken says:
      2 Mar2 March 07:44

      Indeed.

      They may have checked any documents submitted and advised on them, but a long way short of actually representing the client.
      MCOL is specifically designed to reduce the legal burden of getting solicitors involved.

      • NFH says:
        2 Mar2 March 07:49

        No, Which Legal Service does not check documents and you cannot send them attachments. Having said that, I have found a limited way around this. I usually contact Which Legal Service by phone. But if I first contact Which Legal Service about a potential claim in writing, then if I include all the paragraphs for my draft particulars of claim in the body of the e-mail, then they will advise on the merits of my claim.

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