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Cite as: [2002] IEHC 154
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Keefe v. Ryanair Holdings plc [2002] IEHC 154 (19 June 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/154.html Cite as: [2002] IEHC 154 |
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THE HIGH COURT
1999 No 2906p
BETWEEN
JANE O'KEEFFE
Plaintiff
And
RYANAIR HOLDING PLC
Defendant
JUDGMENT of Mr. Justice Kelly delivered the 19th day of June. 2002.
Introduction
The Plaintiff claims damages for breach of contract. The defendant denies that it ever had any contract with the plaintiff. Rather, it alleges that this litigation is about a gift made to the plaintiff and the claim is therefore unsustainable.
In her statement of claim the plaintiff alleges that on the 20th October, 1988 she entered into a contract with the defendant under which it offered her the opportunity to be selected as its one millionth passenger. In consideration of this the plaintiff agreed to offer her services for publicity to the defendant should she be selected, Furthermore she agreed to forego her constitutional right to privacy. She alleges that it was a term of that contract that if she was successful she would be entitled to free travel for herself and a nominated person on any route operated by the defendant for the rest of her life.
In its defence the defendant admits that on the date in question it made an offer to the plaintiff when she was the one millionth passenger travelling with it but denies that she was contracted to provide publicity services or to give up her constitutional right to privacy. The defendant alleges that the offer was in the nature of a gift but is remarkably unsure of its terms. It puts forward no fewer than five different alternative terms governing the gift. It furthermore contends that if the court concludes that there was a contract as between the plaintiff and the defendant that it was not in breach of such contract.
It is necessary to look at the facts as adduced in evidence in order to make sense of these competing claims.
The Plaintiff
In 1988 the plaintiff was 21 years of age and working as a secretary in London. In October of that year she returned to Ireland to attend her grandmother's funeral. She planned to go back to London by air on the 20th October, 1988. In order to do so she purchased a ticket from the defendant for a direct flight from Dublin to London on that day.
On the 20th October, 1988 she presented herself at the check-in desk at Dublin airport so as to be able to board the flight. It is the events which took place on that occasion which constitute the genesis of these proceedings.
The Events at Check-in
When the plaintiff presented herself at the check-in desk the defendant's representative enquired of her as to whether she was aware of the fact that she might be the one millionth passenger flying with the airline. She was told that she might be that passenger and was asked if she would be prepared to participate in publicity in such event. She indicated that she would be so prepared and was given a badge which was placed on her lapel. This badge contained the defendant's logo and the legend "1 in a million".
The plaintiff moved on into the duty free area where she was approached some little time later by a representative from the defendant. She was told that the name of the millionth passenger was about to be called.
A short time later the then chief executive of the defendant Mr P.J. McGoldrick announced the plaintiffs name as the one millionth passenger. As such the defendant represented to her that she would have unlimited travel for herself and her nominee for the remainder of her life.
The whole event was designed to and did in fact attract enormous publicity. It was on radio and television news bulletins that evening and night. There was publicity in the national newspapers. The event itself had an accompanying champagne reception; a band was present as was the well known street character known as the "Diceman". A video of the whole affair was taken and was put in evidence.
As the plaintiff herself said she thought she was getting involved in a publicity stunt whereby the millionth passenger would receive, in return for publicity, unlimited free flights for life. She agreed to and did in fact fully participate and comply with all of the requirements of the defendant in that regard.
Her belief as to what she was involved in is in my view borne out by the evidence of the present chief executive (Mr O'Leary) of the defendant. In October, 1988 he was the chief financial officer of the defendant and was aware of what was going on. In the course of his evidence he made it quite clear that "the purpose of the thing was to generate some publicity for Ryanair". The whole affair was carefully stage managed by the defendant. It appears to have had little enough to do with whether or not the plaintiff was actually the millionth passenger travelling. In fact it is most unlikely the plaintiff was in reality the one millionth passenger.
As the chief executive said, the defendant knew that at some stage during the particular week in October, 1988 the defendant would carry its millionth passenger. The marketing men were keen to generate publicity for that event. So they picked out a passenger on a day of the week that was quiet i.e. midweek when they could be guaranteed to get photographers to Dublin airport. Furthermore, it is clear from the evidence of Mr O'Leary that if a passenger at check-in had indicated that they would not become involved in publicity they would not have been picked as the supposed millionth passenger at all.
Later Events
Having been chosen by the defendant the plaintiff was given a giant sized replica of an airline ticket which bore the legend "Passenger ticket and baggage check for our millionair passenger. Valid for free air travel for life". The figure 1,000,000 is contained in the top right hand corner.
Some weeks after the event the plaintiff received a written communication from the defendant. It took the form of a letter from the defendant's commercial director to which there was attached an agreement. The plaintiff recollects that this agreement set out how the arrangement was to work for herself and her nominee. She read through it and showed it to her father and it seemed quite a straightforward document. She recalled that one of the stipulations was that she was obliged to nominate somebody to be her travelling companion. At that stage she was only 21 and was unmarried. She felt that she could not nominate somebody for the rest of her life so she contacted the marketing manager an Ann O'Callaghan by phone and explained her difficulty to her. She made an arrangement with Ms O'Callaghan who was very understanding of her situation and indicated that the defendant would be prepared to consider allowing her to nominate on a year by year basis. The plaintiff left the written contract with Ms O'Callaghan so as to enable the necessary amendments to be contract was ever furnished.
Notwithstanding that however, it is quite clear that the arrangement as between the plaintiff and the defendant worked smoothly for many years up to 1997.
1988 to 1997
During these years the plaintiff utilised her entitlement with the defendant without difficulty. Her use of the free travel facility was on any view modest. During most years she took three or four flights and certainly never exceeded five. In one year she used the entitlement as little as once. Despite the lack of documents the arrangement worked well.
Typically, the plaintiff would telephone the marketing department of the defendant, identify herself and notify them of the booking that she required. She did this about two weeks before flying. There was usually a designated person whom she would contact. Having phoned through her reservation she would receive either a fax or a telephone call giving her a reservation number. Armed with that she would then attend at Dublin airport on the day of the flight and would be issued with the tickets. She never experienced any hitch in this arrangement save on one occasion in 1994 when she had to deal with a new official who did not know her. That official pointed out that she had no documentation about the plaintiff on file. The plaintiff faxed through the official press clippings concerning the events of October, 1988 and no further problem was encountered.
In October, 1997 events which are at the root of this litigation occurred. There is a serious conflict of testimony in respect of a number of them and it will be necessary for me to resolve that conflict.
15th October 1997
The plaintiff contends that on this date she followed her normal practise and telephoned her contact person in Ryanair who was known to her as Emer. This lady is in fact Emer Purcell who gave evidence in this trial. The plaintiff says that she asked Ms Purcell to reserve two seats to Edinburgh departing on the 31st October, 1997 and returning on the 2nd November. The defendant only flew to Glasgow so the plaintiff and her husband were going to travel on from there to Edinburgh.
The plaintiff says that she had a conversation with Ms Purcell. Ms Purcell checked while she was on the phone for availability of flights. They discussed the various times and flight options that best suited the travel arrangements because the plaintiff was taking time off work to make this trip. Ms Purcell confirmed that seats were available and took the booking. The booking was concluded as normal and Ms Purcell said that she would fax through the reservation and booking number within a couple of days. On the plaintiffs version of events that did not occur and resulted in her telephoning the defendant on the 28th October to ask for the booking number.
The defendants contend that no such reservation was made on the 15th October and that the first that they knew of the plaintiffs desire to make this journey occurred a few days before flight when they were contacted at the end of October.
There is a conflict of evidence between the plaintiff and Ms Purcell concerning this alleged arrangement of the 15th October, 1997.
Insofar as that conflict is concerned I have come to the conclusion that the plaintiffs version of events is correct and Ms Purcell's is not. I have come to that conclusion for a number of reasons. First, I think it highly unlikely that the plaintiff would have left the making of this booking to the last minute as the defendant suggests. She was at this time six months pregnant and believed it to be the last time that she would be able to fly to see for her and her husband concerning this visit. She was also taking time off work. In such circumstances I think it most unlikely that the attempt to book the flight was left to the last minute as was suggested. Secondly, the plaintiff was quite clear in her recollection and steadfast in her testimony concerning this event. That was not the case with Ms Purcell. Cross-examination of the plaintiff was conducted on the basis that Ms Purcell had no recollection of this event. At one stage in her testimony that was the expression she herself used. At other places in her testimony she denied that the event occurred. There is a world of difference between an event not taking place and a person not having a recollection of it. The plaintiffs testimony was, unlike that of Ms Purcell, unwavering.
Furthermore, having had the opportunity of seeing both the plaintiff and Ms Purcell, observing their demeanour and having an opportunity of assessing them I prefer the evidence of the plaintiff. In addition, when the plaintiff encountered difficulties with the defendant at the end of October she committed her recollection to writing in a contemporaneous note. That clearly records the events of 15th October. No such records were kept or produced by the defendant.
The normal practise for the plaintiff was to make her travel arrangements about a fortnight in advance and I see no reason why she would have departed from that arrangement in the present case. In fact, there was every reason why she should adhere to it given her pregnant condition, and the family arrangements that fell to be made.
I find as a fact that the plaintiff did make the arrangement with Ms Purcell on the 15th October, 1997. For whatever reason that arrangement was not followed through by the defendant and the plaintiff was not notified of her booking or reservation number. This brings me to the next event.
28TH/29TH October, 1997
On the 28th October the plaintiff, in the absence of a reservation or booking number, telephoned Ryanair in order to speak to Ms Purcell. Ms Purcell was not available so the plaintiff left a message. On the following day another member of the defendant's staff called Sharon telephoned the plaintiff. She said that she had been asked by Ms Purcell to fax through the plaintiffs reference but she was unable to do so. So Sharon telephoned the plaintiff and asked for the flight numbers and the dates and times. These were given. The plaintiff was told that she would be faxed a booking reference. That did not happen. At this stage the plaintiff was getting anxious as there was only a few days to go before travel. She telephoned that afternoon. She spoke once again to Sharon, who told her that there were no seats left on the original flights and that no booking had been made. The plaintiff enquired as the availability of seats on other flights on the chosen dates and was told that there were such seats available. She asked Sharon to book these but was told that that could not be done because Sharon did not have authority to do so. She did however, say that she would try to hold these seats. Sharon said that on the following day namely the 30th October when Emer and her boss Mr Tim Jeans were back in the office they would deal with the matter. This was the first time that the plaintiff had ever heard of Mr Jeans.
30th October. 1997
At 9.30 am on the 30th October, 1997 the plaintiff again telephoned the defendant. She spoke to Ms Purcell (with whom of course, she had been dealing over a number of years). She transferred her to Mr Jeans, the marketing director. Having introduced himself Mr Jeans enquired if she had anything in writing from Ryanair and she told him that she did not. She explained however, that she had been availing of her entitlement for the previous nine years without any problems and without having anything in writing. She did tell him however, that she had the video tape and press clippings of the events of October, 1988. She informed him that the video tape demonstrated the then chief executive telling her that she had won unlimited free flights on any Ryanair flights for the rest of her life.
When making this request of the plaintiff Mr Jeans was fully aware of the fact from Ms Purcell that the plaintiff had indeed for years beforehand availed herself of flights on foot of this entitlement.
Notwithstanding this however, he told her that in the absence of a written contract between her and the defendant limits would be imposed on her entitlement. There is a conflict of evidence between the plaintiff and Mr Jeans as to the extent of that limitation. The plaintiff is clear in her recollection and in her contemporaneous note that she was told that she would be limited to one flight per year. Mr Jeans says that his recollection is that he told her she would be limited to one flight per month. Unfortunately for Mr Jeans his contemporaneous note does not support his testimony. It records that he told her that her limit would be one flight per year. Having had an opportunity to assess both the plaintiff and Mr Jeans in the witness box I have no hesitation in resolving this conflict in favour of the plaintiff. I find as a fact that Mr Jeans informed her that she would be limited to one flight per year in the absence of a written contract.
This information was, as the plaintiff said, "a bolt out of the blue". She told him that she thought that it was unacceptable and felt that the defendant could not randomly change the details of the contract as it suited it.
Insofar as there is any conflict between the plaintiff and Mr Jeans as to the discussion which took place concerning her flight for the next day, I likewise resolve that conflict in favour of the plaintiff. I find that the conversation between herself and Mr Jeans ended with him indicating to her that somebody would telephone her in that regard. At this stage I am satisfied that Mr Jeans was aware of the fact that there were a number of seats available on the flights which were sought but they were what was known to Ryanair as S-class seats. That is they were the most expensive seats and the airline was not prepared to make them available to the plaintiff.
I accept the plaintiffs evidence that as nobody had telephoned her by 10.30 am she again called the defendant and was assured that Ms Purcell would telephone her back. That did not happen and the plaintiff telephoned again at 11.30 am. Once more, she was told that either Ms Purcell or Mr Jeans would telephone her. That did not happen either.
At 12.30 pm the plaintiff telephoned again. In the meantime she had telephoned Ryanair reservations and was told that there were seats available on the relevant flights.
Again, I accept the plaintiffs version of events as to what occurred when she made this 12.30 pm phone call. She spoke to Mr Jeans who indicated to her that there were no seats available the following day to Prestwick. She told him that that was not so. His response was that the issue had now gone to the managing director of the defendant and that he had dictated that there were to be no more flights to be given until the matter had been clarified. Insofar as there is any conflict between the testimony of the plaintiff and Mr Jeans in this regard I accept the plaintiffs version of events as being the more probably correct and I find as a fact that the conversation which I have just recounted did in fact take place.
The plaintiffs next port of call was to telephone the chief executive of the defendant Mr O'Leary. She spoke to him on the telephone. Again, there is a conflict of testimony between what the plaintiff said occurred on this occasion and the evidence given by Mr O'Leary.
On Mr O'Leary's own evidence Mr Jeans had spoken to him a number of times on the morning of the 30th October prior to the plaintiff making contact with him. He knew that there were seats available on the flights sought by the plaintiff but they were not in the cheapest class. His version of events is that the plaintiff had had this fact already explained to her and that he told her that in order for her to obtain those flights the company needed to receive reasonable notice in advance and making a call the day before one wanted to travel was not reasonable notice. He said that the plaintiff did not tell him that she had already done so two weeks beforehand. He described the plaintiffs allegation of hostility on his part as "nonsense". He said the company's position was quite clear. There was no availability on the cheaper seats on the flights to Prestwick that weekend and consequently Ryanair would not be offering her free seats on the basis that she was simply calling up the day before. He denied that he raised his voice to her. He made it clear that she was not going to get free flights the following day and the phone call he says, concluded on the basis of her undertaking to write in to him the following week.
The plaintiffs version of events is dramatically different. She says that he was extremely hostile to her from the start. He asked her who did she think she was, phoning up demanding flights. He said that flight sought was unavailable and therefore she could not travel. She said that she told him there was an earlier flight available but he said that the seats were at a higher rate and she was not entitled to them. She suggested that she was being very badly treated by the defendant and that it was trying to put the onus on her to prove the legitimacy of her prize whereas the fact that it had nothing on file was its fault. Mr O'Leary responded that it was her problem. She says that he told her not to phone anyone in Ryanair again and to send in the tape and that he would look into it. She asked him not to bully her and found it difficult to make herself heard.
Having had the opportunity of observing the demeanour of the plaintiff and Mr O'Leary throughout their testimony I am quite satisfied that the plaintiffs account of the telephone conversation in question has about it the ring of truth and is an accurate account of what occurred. It is supported by her own contemporaneous note whereas the defendant did not attempt to adduce any note of the conversation in question. I found the plaintiff a more persuasive witness than Mr O'Leary and I therefore find as a fact that the version of events given by the plaintiff is what occurred. I reject Mr O'Leary's assertion that he was not hostile or aggressive or bullying towards the plaintiff. I find that he was.
The net effect of all of this was that the plaintiff was now left without her entitlement to travel and furthermore, future entitlements were in doubt, certainly insofar as they might exceed one trip per year.
Subsequent Events
On the 6th November, 1997 the plaintiff wrote to Mr O'Leary enclosing the video tape and the press clippings relating to her entitlements. In her letter she pointed out that the then managing director of the defendant stated quite clearly that she was entitled to unlimited travel on any Ryanair flight for life for herself and a friend. The letter went on to point out that she was unable to make the trip to Glasgow Prestwick on the preceding Friday and that this had caused her and her family great inconvenience.
This letter was responded to by Mr Jeans by letter of the 17th December, 1997. His letter set out details of how the defendant proposed to operate the plaintiffs by now admitted entitlement to concessionary free travel on Ryanair services from the 1st January, 1998 onwards. The terms that were proffered were as follows:
"1. Travel on Ryanair services is for Miss Jane O'Keeffe and one other nominated person. Travel will be available to these two named individuals only, and both individuals must be travelling together, (please revert with the name of your nominated companion).
2. Travel is available on Ryanair services only. No travel can be made on other carrier's flights, including any "code share" flights that
Ryanair may operate in future, in cooperation with other carriers.
3. Travel can be made on Ryanair services up to a maximum of one return flight per annum (i.e. up to twelve flights per annum), (sic) and
entitlement cannot be carried forward.
4. Requests must be made in writing two weeks prior to departure to Ryanair's sales department at the above address. These are subject to
the availability of 'H" class seats at the time of booking. Should the designation of 'H" class alter in future, then travel will be available
where the lowest published fare class is available.
5. Your entitlement to travel is not transferable, and has no alternative cash value.
6. On your death, the entitlement of the other nominated individual will cease also.
7. You agree to be available for PR and promotional activity for Ryanair.
I would appreciate your confirming acceptance of the enclosed conditions by signing both copies of the enclosed letter and return these to me. One will then be countersigned by Ryanair and return (sic) to you for your records. I trust that by having a proper system in place, we can avoid any misunderstanding in future, and we look forward to welcoming you on board our services for many year sin (sic) the future."
A number of features of this letter caused concern to the plaintiff. First, she read paragraph (1) as meaning that both herself and her nominated companion had to travel together for either to get free travel. She knew that her nominated companion would not be able to travel without her but she thought that she should be able to travel without the companion. Secondly, the proposition in paragraph (3) was clearly a nonsense. On the one hand it was offering one return flight per annum and in the same sentence spoke of up to twelve flights per annum. That was obviously an error. Thirdly, the reference to "H" class seats was a mystery to her. She did not know what that was all about and had never heard of it beforehand. The only other time during her many years of dealing with Ryanair where classes of seats were mentioned was in her dealings with the defendant on the 30th October when she was told by Mr O'Leary of seats at a higher rate being the only ones available on the flights in question.
The plaintiff did not know how many seats were normally available on a flight at the lowest published fare. She had never been told of this situation prior to the letter of the 17th December, 1997.
She contacted the defendant and arranged to meet Mr Jeans. She did so.
They had an amicable conversation concerning these points of worry. He undertook to clarify these matters and said that he would issue her with a new letter. In the course of her conversation he accepted that she would not have to travel with her nominated companion and that point (1) in the letter was incorrect. He also accepted that point (3) was incorrect and that she would be limited to twelve flights per annum. He also undertook that he would clarify the designation of "H" class seats. She was not satisfied with the explanation which he gave her verbally in that regard.
After this meeting she decided to take legal advice on the question and thereafter correspondence took place between solicitors.
In the course of the correspondence it was arranged that she would be able to take a Ryanair flight and she went to Rimini on that single occasion. Apart from that flight she has not availed herself of the facility further and the matter has resulted in the present litigation.
Was there a Contract?
The contention made by the defendant both in its pleadings and submissions is that there was no contract in existence between the plaintiff and the defendant. Rather it is said that the defendant conferred a gift on the plaintiff. Insofar as the terms of that gift are concerned the defendant appears to be in some considerable doubt. Five different alternatives are set forth in the defence and on the closing day of the trial leave was sought and granted even to amend those.
A gift is defined in the Concise Oxford Dictionary (seventh edition) as a "voluntary transference of property without compensation".
In the present case I am quite satisfied that on any reasonable view of what occurred in this case the entitlement given to the plaintiff to avail herself of free tickets on the defendant's flights was not gratuitous. The only basis upon which the defendant had any interest in the plaintiff arose from her agreement to participate in the public relations exercise which was undertaken by it. Had she not so consented she would have had no entitlement to participate in the proposal which was put to her. The whole object of the exercise was to generate publicity for the defendant and the plaintiffs active participation was required in that. She gave her consent and it was on that basis that the entitlements in question were made available to her.
I am quite satisfied therefore, that there is no question of a gift being involved here. The defendant had a very clear idea as to what it wanted from the plaintiff and it got it.
It is trite law that in order for there to be a valid contract there must be agreement between the parties, consideration for such agreement and an intention to create legal relations.
In my view there was agreement between the parties that in consideration of the plaintiff consenting to participate in the publicity sought by the defendant she would be eligible for nomination as its millionth passenger. Should she be so nominated she was to cooperate in the publicity being generated for the defendant's benefit. In return she was to be entitled to unlimited travel on Ryanair routes for herself and a nominated person for the remainder of her natural life.
Under the doctrine of consideration a promise has no contractual force unless some value has been given for it. The court is not concerned with the adequacy of value. (Haigh v Brooks [1839] 10 A & E 309; Wild v Tucker [1914] 3 KB 36; Midland Bank v Green [1981] AC 513). The consideration to support a contract must however be real, that is to say capable of estimation in terms of value. It must be of some value in the eye of the law. (Thomas v Thomas [1842] 2 Q.B. 851). Certainly, the participation of the plaintiff in the publicity generated on the day in question was regarded as being of value by the defendant and I see no reason why the law should not regard it as likewise being of value. The surrender by the plaintiff of her anonymity and privacy and her active participation in the generation of the publicity that was created on the day in question in my view amounted to a real consideration and sufficient to support a valid contract.
Insofar as an intention to create legal relations was concerned it was never seriously suggested that such was absent on the defendant's part. The onus of proving that there was no such intention is on the party who asserts that no legal effect is intended, and the onus is a heavy one (see Edwards -v- Skyways Limited 1964 1 WLR 349). As I have already noted there was no real effort to make such a case here apart from the suggestion that what was involved on the part of the defendant was a gift. Indeed, it would have been difficult to make such a case because it seems to me that there was much about the conduct of the parties here which demonstrated the existence of a contractual animus. The obtaining of the consent of the plaintiff, the furnishing to her of the large ticket setting forth her entitlements, the subsequent furnishing of the written contract reiterating the terms of the arrangement are all indicative of a lack of intention on the part of the defendant to negative the creation of a legal relationship.
I am therefore satisfied that an enforceable contract was made between the plaintiff and the defendant. I am likewise satisfied that the plaintiff carried out her side of the bargain in full and to the complete satisfaction of the defendant. The next question which arises is as to whether or not the defendant breached its obligations to the plaintiff.
Was there a breach?
The evidence satisfies me that until 1997 the arrangement between the plaintiff and the defendant operated smoothly and without a hitch. I have already found as a fact that the plaintiff followed her usual routine and attempted to make a booking approximately two weeks before the date upon which she intended to fly. In the event this was not honoured. The dishonour of those arrangements occurred at a time when there was seating capacity available to take her and her husband to Glasgow Prestwick and back on the days sought. But because those seats were not the cheapest available they were not provided for her. It was never a term of the arrangement made between the plaintiff and the defendant that she should be restricted to seats of a particular class on the aircraft.
In her attempts to have the matter rectified the plaintiffs position disimproved. The defendant refused not merely to honour the arrangement which she had made with it for that particular weekend, but indicated in unequivocal terms that thenceforth, her entitlement would be limited to a single flight per annum. In the letter of the 17th December, 1997 this was altered to twelve flights per annum albeit in a slipshod and not very impressive manner. New terms were also sought to be introduced in that letter such as confining her entitlement to "H" class seats and requiring her to be available for further promotional activity for the defendant.
This refusal to grant to the plaintiff her entitlements continued throughout this litigation and it was not until the third day of the hearing that it was finally acknowledged by Mr O'Leary that this attempt to limit her to twelve flights per annum was wrong, ought not to have been made and that no such restriction was applicable.
I am quite satisfied therefore, that the defendant has been in breach of its contractual obligations to the plaintiff and has persisted in denying her her proper entitlements up to and including the third day of the trial.
I should at this stage mention an event which occurred whilst the plaintiff was in the witness box under cross-examination. Shortly before the trial resumed on its second day she was presented with an open letter from the defendant. It offered to settle the proceedings on the basis that the plaintiff and a nominated companion would have free flights on all Ryanair flights, subject to availability, this dependent upon the notification period given by the plaintiff, but on the understanding that if there were seats on a flight at the date of the plaintiffs booking that she would be entitled to them. It offered compensation for the harm done to date and also agreed to pay her costs.
She rejected this offer which, as I say was put to her a very short time before her cross-examination resumed and which quite clearly caused her even more anxiety than she was already suffering as a result of the ordeal of litigation. She rejected the offer because as she said and I quote
"I don't trust Ryanair anymore. I feel that if they had lived up to their initial promise to me I wouldn't be sitting here today. I also feel that I would feel very awkward having to ring up and ask for flights given all that's taken place, given the fact that everybody will know now who I am now, and know what has happened. And I just feel that still it's also slightly ambiguous. It doesn't mention "H" class, for example, or any class. It says 'dependent on notification', dependent on whether there are seats on a flight, 'subject to availability'. All of the same things that have caused me concern and has led to us being here. As I say, it's an issue of trust with me now. And I, that's why I feel that I think I'm not sure that Ryanair would live up to the obligation based on what my experience of Ryanair is and how they have treated me to date".
It appears to me that that reaction on the part of the plaintiff could not be described as unreasonable having regard to all that had taken place up to then.
I am therefore satisfied that the defendants are guilty of a breach of contract and that the plaintiff has a remedy in respect of it.
Damages
The plaintiff is entitled to damages for breach of her contract. She is entitled to damages for her inability to utilise the entitlement from the date of the breach in 1997 to date. She is also entitled to the capital value of her entitlement into the future. I will deal with each of these heads of damage separately.
Loss to Date
The plaintiffs use of her entitlement has on any view of it been modest. Her family circumstances at present with two young children aged four and two respectively mean that she is not in a position to make any more extensive use of the facility than has been the case to date. Accordingly, I conclude that I ought to fix the number of journeys which she is, likely to have made since 1997 to date as four per annum. That would be four round trips for herself and one other person.
I have had substantial evidence argument and debate over the value to be attributed to each of these trips. The plaintiffs actuary went into the defendant's website, extracted a range of prices which were available for one-way flights and averaged them out as being €112 per flight. The defendants say that is not the appropriate way of approaching the matter and they have put in evidence returns which they have made to the United States regulatory authorities. Those returns demonstrate that the average passenger fare is of an altogether lower figure namely of the order of €55 - €60 per one way trip. But these are averages and do not necessarily reflect the actual loss.
For the purposes of the loss to date I think it reasonable to assume an average fare of €150 per round trip (€75 per flight one way) giving a loss of €600 per annum to the plaintiff for herself and a further €600 in respect of her nominated companion. That amounts to a total loss of €1,200 per annum for the last five years giving a loss of €6,000 to date.
In addition, following Jarvis -v- Swan Tours (1973 1 All ER 71), I think she is also entitled to be compensated for the disappointment, frustration and upset that was suffered by her in respect of the holiday weekend in October of 1997 arising from the unpleasant and shabby treatment which she suffered on that occasion. I will therefore award an additional €1,500 to deal with that. That gives an award of €7,500 for loss to date.
The Future
The first task which I must undertake is to make what I believe to be a reasonable assessment of the number of trips that are likely to be taken by the plaintiff and her nominated companion over the remainder of her life. I think it likely that the plaintiffs use will continue at the rate of four per annum until her children become older. I have little doubt but that at that stage, as she said herself, her use will increase and I think as a matter of probability, substantially. In addition the routes being flown by the defendant are continually increasing and that is likely to be the case in future. Weekend trips to close locations will increase as will holidays to places further afield. If, as she hopes, she purchases a premises abroad then even greater use will be made of the entitlement. As she gets into old age use of it will decrease. Taking one thing with another therefore, I have come to the conclusion that an allowance often trips per annum would not in the circumstances be unreasonable.
I accept the defendant's evidence that in recent times airline prices have tended to reduce and that that is likely to continue for some time into the future. I do not accept that a stage will be reached where the cost will be zero and the defendant will be making its money solely from ancillary services.
I have already indicated how the plaintiffs actuary acquired his average of €112 per flight (one way). The defendant adduced evidence of returns which it has made to its United States regulatory authorities of the average passenger fare over the years. These figures are on the basis of a one way trip and over the past eleven years demonstrate an average fare of as little as €48.38 to as much as €60.09. Those figures are of course averages and therefore may not necessarily represent the actual loss which the plaintiff would be likely to incur in any one year. In the circumstances it seems to me to be not unreasonable to take a figure of €60 per one way trip as being the appropriate sum on which to make the calculation. The round trip would therefore be €120 and that of course must be doubled to take account of the loss of the trip of the plaintiffs companion. That gives an annual loss of €2,400 which then has to be capitalised.
I have had evidence from actuaries on both sides giving me the benefit of their views of capital value on different figures and having regard to the tax status of the plaintiff. Their evidence does not of course take into account unforeseen possibilities concerning both the plaintiff and the defendant. I must make allowance for them as best I can (Reddy v Bates). I hold that inflation will apply to future ticket prices and whilst therefore there will be a reduction in net cost, inflation will to some extent offset that. In these circumstances I have come to the conclusion having regard to all of the evidence that the appropriate sum to be awarded to the plaintiff in respect of future loss is the sum of €60,000.
To that must be added the €7,500 for loss to date giving a grand total of €67,500.
There will be judgment accordingly.