Denial of boarding to airline passengers

On Aug. 29, 1973, Mr W. J. Edmunds, the holder of a confirmed reservation on BOAC flight BA 679 to Bermuda, presented himself for carriage at London Heathrow airport. He was denied boarding—a chance victim of the airline’s admitted policy of overbooking flights “as a prudent business exercise to counteract ‘no-shows’, i.e. those passengers who make reservations but do not turn up”. This event set in train a sequence which was not brought to a conclusion until December, 1975, when the House of Lords sat in final appeal on the prosecution of the British Airways Board initiated by the Inspector of Trading Standards, Manchester, as a direct consequence of Mr Edmunds’ experience. (British Airways Board v. Taylor [1976] 1 Lloyd’s Rep. 167.)

The offence of which the airline was accused was a breach of the Trade Descriptions Act 1968, which at s. 14(lb) renders it unlawful in the course of trade or business “recklessly to make a statement which is false, as to any of the following matters, that is to say—(i) the provision in the course of any trade or business of any services …”.

Upon the hearing of the prosecutor’s appeal against the quashing of the original conviction by the Divisional Court, Lord Wilberforce and his colleagues devoted much of their attention to the question whether the airline’s confirmation of reservation amounted to a mere promise as to future action or was a statement of existing fact— that could be true or false. The consensus view adopted was that given a policy which might mean two passengers in every 1,000 being turned away, BOAC knew that Mr Edmunds might not get on the aircraft. Accordingly, in the words of Viscount Dilhorne,

“the statement that his reservation was confirmed … was clearly false for it clearly implied that they had reserved a seat for him and would keep one reserved for him when it was always their intention, should more passengers arrive for the flight than there was room for, not to carry one or more of those for whom reservations had been made. It was false because it did not state the qualification to which it was subject and it was false to their knowledge”.

This conclusion notwithstanding, however, their Lordships felt obliged to uphold the decision of the Divisional Court on the technical ground that by virtue of the Air Corporations (Dissolution) Order 1973 BOAC had been superseded by the British Airways Board between Aug. 29, 1973, and the date of trial and the transfer of “all property rights and liabilities” from the former to the latter for which the Order provided did not extend to criminal liabilities.