Establishing Duty of Care

Farah and others v British Airways plc and another (CA TLR 26 January)

The claimants were Somali nationals who had purchased tickets from British Airways to fly from Cairo to London. However, British Airways, relying upon the incorrect advice of a liaison officer employed by the Home Office that the claimants entry documents were invalid, had refused to carry them to the UK. As a result they had been detained in Cairo airport for five days and then deported to Ethiopia. The claimants claimed both against British Airways and the Home Office but the judge had struck out the parts of the particulars of claim relating to the Home Office on the grounds that there had not been sufficient proximity between the claimants and the Home Office or its liaison officer for a duty of care to exist. If such a duty were not recognised the extraordinary position would be that the only persons who might have a valid claim (British Airways) had suffered no loss and the only persons who had suffered a loss (the claimants) had no valid claim. The facts in the present case should be investigated before a conclusion was reached either way as to whether a duty of care existed or not. This was an area of developing jurisprudence. The question of whether or not an analogous situation should be recognised as giving rise to a duty of care in the situation on which the claimants relied should be explored when the facts have been established. On a striking-out application it was not possible to come to the conclusion that the claimants’ case had no realistic prospect of success.