Background
One point was investigated and resolved informally with the advertiser’s agreement to make changes.
A misleadingness challenge was raised against the “€250” in ads (a), (b) and (c).
The claim was amended to “£220”.
Summary of Council decision:
Three issues were investigated, one was Upheld, one was Upheld in relation to ads (b), (c), (d) and (e) only and one was Upheld in relation to ads (a), (b) and (c) only.
Ad description
A page on the Flight Delay Claim website, www.flightdelayclaim.com, and four tweets on the Flight Delay Claim Twitter page, seen in January 2023:
a. The first tweet stated, “Did you fly with Loganair? Were you on flight LM453 on 30th January 2023 from Glasgow Airport to Tiree Airport? You maybe [sic] due €250 compensation! … Claim Now: flightdelayclaim.com”.
b. The second tweet stated, “Loganair compensation Alert! Were you on flight LM452 on 29th January 2023 from Barra Airport to Glasgow Airport? Claim €250 each! … Claim Now: flightdelayclaim.com”.
c. The third tweet featured text that said, “Loganair CANCELLED again! Were you on flight LM456 on 30th January 2023 from Barra Airport to Glasgow Airport? Claim €250 each! … Claim Now: flightdelayclaim.com”.
d. The fourth tweet featured text that said, “Did you fly with Loganair? Were you on flight LM457 on 30th January 2023 from Glasgow Airport to Tiree Airport? Claim for your flight delay! …Claim Now: flightdelayclaim.com”.
e. The website page stated, “Recent Flight Delays … We update our Recent Flights Delays page every day to ensure you know which flights have been delayed or cancelled. All of the recently delayed flights have been checked and verified by our team and in many cases have already had successful claims made against the airlines. If your flight is not displayed do not hesitate to use our online claim form and we can check it for you”. The page then displayed a list of Loganair cancellations or delays in date order and included flights LM452, LM453, LM456 and LM457 and stated “CANCELLED Claim Now”.
Issue
Loganair challenged whether the ads were misleading because they:
1. implied compensation was guaranteed, whereas the flights in the ads were cancelled due to adverse weather conditions, which rendered them ineligible for compensation;
2. implied that third parties could make an initial claim for compensation; and
3. did not make reference to the advertiser’s fees.
Response
1. Versus Law t/a Flight Delay Claim (Versus Law) stated that the primary factors for determining whether a claim qualified for further investigation were if a flight was delayed over three hours or cancelled. If either was the case they would obtain information from the consumer, make a claim, allow the airline to present a defence and advise the consumer if the defence was valid.
They had checked public information to determine whether the highlighted flights were cancelled or delayed by the requisite time period. They used a number of sources to do that and also consulted airport arrival and departure boards.In circumstances of adverse weather Loganair could produce that defence after being contacted and Versus Law would then advise the consumer on the prospect of success. That process was explained fully to consumers when they registered and details were also on their website.
Versus Law explained that just because an airline claimed adverse weather conditions as a reason why a flight was cancelled or delayed, that did not mean that a consumer could not claim. They would need to determine the exact circumstances of the day, for instance if all flights at the time were delayed or it was an isolated incident.
They said they would amend the text in future tweets to be more conditional about the amount that could be claimed.
2. Versus Law said that while Loganair’s terms and conditions stated that no third party could raise a complaint to them as a first step, all airlines had different conditions and Versus Law did not know the terms for all airlines. Nevertheless that issue was addressed during the claim process, not beforehand, because Loganair would have to provide evidence to confirm whether an individual had already complained directly to them or not. Once evidence had been received, Versus Law would review it and advise the consumer, including on whether the terms and conditions were enforceable, and wait for instruction. Even if the consumer had not complained to Loganair first, they would still want to see evidence that the consumer was contracted to the airline’s terms and conditions at the time of booking to ascertain whether the consumer was obliged to complain themselves. If the terms and conditions dictated that the consumer had to complain directly in the first instance, they would provide advice and assistance and ask them to return to Versus Law if the airline disputed the initial claim. They said a consumer was entitled to start a claim through a legal representative, regardless of an individual airline's terms and conditions, and should not be prevented from getting legal advice from any party before their submission.
3. Versus Law said the tweets need not include their fees, because it was not material information. They explained that prior to engagement all consumers would be advised of their fees. To provide that information at the outset would be unworkable.
Assessment
1. Upheld in relation to ads (b), (c), (d) and (e) only
The CAP Code stated that marketing communications must not materially mislead or be likely to do so and must state significant limitations and qualifications.
Ad (a), in reference to flight LM453, said “You maybe due €250 compensation! … Claim Now”. Consumers were likely to interpret the ad’s message to mean that while a compensation claim might be successful, it was not guaranteed.
The flight referenced in the ad had been cancelled due to adverse weather conditions. The ASA understood that government legislation stated that flights delayed or cancelled due to “extraordinary circumstances” would not qualify for compensation and in some circumstances adverse weather conditions could fall under that definition. However, the legislation did not explicitly define what “extraordinary circumstances” were and a level of investigation could be necessary to determine whether a consumer qualified for compensation if a flight had been cancelled or delayed due to adverse weather conditions. Therefore, while it was not unreasonable for Versus Law to advertise that they could help consumers claim compensation for flights that had been cancelled, even for adverse weather conditions, it was not the case that compensation was assured. However, because ad (a)’s message was conditional and clarified that compensation was not assured, we concluded the ad was not misleading.
Ad (b), in reference to flight LM452, said, “Loganair compensation Alert!...Claim €250 each! … Claim Now.” Ad (c), in reference to flight LM456, said “Claim €250 each! … Claim Now”. Ad (d), in reference to flight LM457, said “Claim for your flight delay! …Claim Now”. Ad (e) listed flights LM452, LM453, LM456 and LM457 and stated “CANCELLED Claim Now”.
We considered that the ads by using the phrases, “Claim Now” and “Claim €250 each”, in the absence of any other information that stated that consumers may not receive compensation, implied that compensation was assured. Consumers were therefore likely to interpret the ads to mean that they would be guaranteed compensation for the specific flights if they applied. For the reasons stated above passengers of flights delayed or cancelled due to adverse weather conditions could qualify for compensation, but it was not assured. Because ads (b), (c), (d) and (e) implied compensation was guaranteed and that was not the case, they were misleading.
On that point ads (b), (c), (d) and (e) only breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising) and 3.9 (Qualification). We also investigated ad (a) under those rules, but did not find it in breach.
2. Upheld
Loganair’s terms and conditions stated that they would not accept initial claims for compensation from third parties and consumers had to complain themselves in the first instance. We noted Versus Law’s point that they would ask for evidence from Loganair that a consumer had not already claimed. They would also check whether the terms and conditions prevented the individual from using a third party to claim and even if it turned out they were, they would provide future assistance if the claimant was unsuccessful with the airline directly.
We understood that while terms and conditions could change, any alterations had to be filed with the Civil Aviation Authority and could not be changed easily. Loganair’s policy, that consumers should complain to them first and which applied to all consumers, had been in place since 2018 without amendment. In addition, consumers would know whether they had already approached the airline and their decision to contact Versus Law in response to the ads was likely to be affected by the knowledge of this requirement. It was, therefore, material information that should have featured within the ads. As the information was not present in ads (a), (b), (c), (d) and (e), we concluded they were misleading.
On that point the ads breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising) and 3.9 (Qualification).
3. Upheld in relation to ads (a), (b) and (c) only
We understood that Flight Delay Claim operated on a “no win, no fee” basis. If a client successfully obtained compensation they would charge a fee of 25% of the amount of compensation received, plus value added tax (VAT). In addition, a £25 administration charge applied if the claim was settled without litigation. If litigation was needed the fee would rise to 35% of the compensation, plus VAT. The £25 administration fee applied in either scenario.
Ad (a) stated that, “You maybe due €250 compensation! …” and ads (b) and (c) both stated, “Claim €250 each”. However, in the event of a successful claim, fees would be charged by Flight Delay Claim, such that consumers would never receive the full €250 advertised. Given that, we considered that reference to the application of a fee and the amount which would apply in the event of a successful claim was material information that consumers needed to have in order to make an informed decision about using the service, particularly because the fee would absorb a significant portion of the awarded sum. While we understood that information relating to fees was made available on the advertisers’ website, it should have appeared within the ads.
Ads (d) and (e), while mentioning that consumers could claim for compensation, did not mention an amount that could be paid out. Consumers were not, therefore, led to use the service on the basis of an amount that could be awarded and information about the advertisers’ fees was not, therefore, required to be stated.
On that point ads (a), (b) and (c) breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising) and 3.9 (Qualification). We also investigated ads (d) and (e) under those rules, but did not find them in breach.
Action
The ads must not appear again in the form complained of. We told Versus Law t/a Flight Delay Claim to ensure that future marketing communications did not state or imply that passengers of flights cancelled or delayed over three hours were guaranteed compensation and made clear that consumers could only apply for compensation for Loganair flights through Versus Law’s service if they had first complained to the airline. Future ads that mention a potential compensation amount should also make clear the advertiser’s fees.
