England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
Judge Crawford Lindsay QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 December 2004

Lord Justice Brooke :

1. This is an appeal by the first defendants Ryanair Ltd ("Ryanair") from a judgment of Judge Crawford Lindsay QC sitting in the Central London County Court on 30^th January 2004 whereby he found that they had unlawfully discriminated against the claimant Robert Ross contrary to provisions to be found in Part III of the Disability Discrimination Act 1995 ("the 1995 Act"). Ryanair accepted that the claimant had been the victim of unlawful discrimination, but they contended that his claim should have succeeded against the second defendants Stansted Airport Ltd ("STAL") whom the judge acquitted of responsibility. They repeat this contention on the appeal, and Mr Ross also adopts this contention by way of cross-appeal. STAL, who own and manage Stansted Airport, are a subsidiary of British Airports Authority plc. The judge awarded Mr Ross the declaratory relief he sought and £1,336 by way of damages, made up of £1,000 for injury to feelings, £300 for the cost of a wheelchair which he felt obliged to purchase for use at Stansted Airport, and £36 for the wheelchair assistance he had had to pay for at Stansted on the two days in question.
2. Mr Ross suffers from cerebral palsy and arthritis. He is capable of walking, although not for long distances. He sometimes uses a stick and sometimes uses crutches, depending on the degree of pain he is suffering. He also has difficulties in standing. This creates problems for him when he is queuing to pass STAL'S security checkpoint. He is a regular customer of Ryanair and makes return flights between Stansted and Perpignan about four times a year. He does not often use a wheelchair, but he has to at Stansted in order to get from the check-in point to the plane. He does not own a wheelchair himself, and he relies on one being provided for him at the airport. His complaint in this matter arises out of his treatment at Stansted on his outward journey to Perpignan on 27^th March 2002 and on his return journey on 2^nd April. Ryanair's check-out desk staff told him that he would have to hire a wheelchair from their agents at the airport, and he had to pay £18 for this service on each occasion. His ticket to Perpignan cost only £10 (plus taxes) each way. He was aware of Ryanair's policy in relation to wheelchairs, but he did not consider that he should have to pay for hiring one whatever the price of his ticket. He experienced no difficulties at Perpignan, where a wheelchair was freely available to him.
3. The relevant provisions Part III of the 1995 Act are in these terms:

"19(1) It is unlawful for a provider of services to discriminate against a disabled person –

…

(b) in failing to comply with any duty imposed on him by section 21 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service;

…

(d) in the terms on which he provides a service to the disabled person.

(2) For the purposes of this section and sections 20 and 21

…

(b) a person is a 'provider of services' if he is concerned with the provision, in the United Kingdom, of services to the public or to a section of the public;

(c) it is irrelevant whether a service is provided on payment or without payment.

(3) The following are examples of services to which this section and sections 20 and 21 apply -

(a) access to and use of any place which members of the public are permitted to enter;

….

(5) Except in such circumstances as may be prescribed, this section and sections 20 and 21 do not apply to -

…

(b) any service so far as it consists of the use of any means of transport…

20(1) For the purposes of section 19, a provider of services discriminates against a disabled person if –

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of section 19, a provider of services also discriminates against a disabled person if -

(a) he fails to comply with a section 21 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified.

(3) For the purposes of this section, treatment is justified only if –

(a) In the opinion of the provider of the services, one or more of the conditions mentioned in subsection (4) are satisfied; and

(b) It is reasonable in all the circumstances of the case for him to hold that opinion.

(4) The conditions are that:-

…

(e) in a case failing within section 19(1)(d), the difference in the terms on which the service is provided to other members of the public reflects the greater cost to the provider of services in providing the service to the disabled person.

(5) Any increase in the cost of providing a service to a disabled person which results from compliance by a provider of services with a section 21 duty shall be disregarded for the purposes of subsection (4)(e).

21(1) Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides…to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect.

(2) Where a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises) makes it impossible or unreasonably difficult for disabled persons to make use of such a service, it is the duty of the provider of that service to take such steps as is reasonable, in all the circumstances of the case, for him to have to take in order to –

…

(c) provide a reasonable means of avoiding this feature; or

(d) provide a reasonable alternative method of making the service in question available to a disabled person.

(4) Where an auxiliary aid would –

…

(b) facilitate the use by disabled persons of such a service, it is the duty of the provider of that service to take such steps as it is reasonable in all the circumstances of the case, for him to have to take in order to provide that auxiliary aid.

(10) This section imposes duties only for the purpose of determining whether a provider of services has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.

25(1) A claim by any person that another person

(a) has discriminated against him in a way which is unlawful under this Part…may be made the subject of civil proceedings in the same way as any other claim in tort."

4. The judge held that Ryanair was a provider of services to Mr Ross within the meaning of section 19. In addition to providing him with the services of a journey by air, they provided a number of ancillary services: check-in; taking on baggage; issuing a boarding card; the provision of a customer service desk at the entrance to Satellite 3 at Stansted; assistance at the departure gate; and delivery of baggage to the carousel on the return flight. So far as check-in was concerned, he said that it did not merely involve the identification of the passengers who were to fly, but that it was also the start of the service provision which continued until the customer removed his baggage from the carousel on his return. As to the boarding card, he said that this was the key that opened the door beyond the security check to facilities in the departure lounge and to embarkation onto the airplane. For these reasons he rejected Ryanair's argument that their service consisted solely of the use of a means of transport (so that they would be exempt from liability pursuant to section 19(5)(b)). He held that Ryanair were providing access to an airplane, and that they were providing that service to Mr Ross on less favourable terms when compared with passengers with restricted mobility who came in a wheelchair (because he had to pay an extra £18) for a reason related to his disability, contrary to section 19(2)(d).
5. The judge went on to say that insofar as it was unreasonably difficult for Mr Ross to have access to the airplane by reason of the physical features of Stansted Airport, Ryanair failed in their duty to provide a wheelchair, which would have been a reasonable alternative method of making access to the airplane available to him. Since the provision of a wheelchair would have represented an auxiliary aid which would have facilitated Mr Ross's access to the airplane, because Ryanair failed to provide one, they were in breach of their obligations under sections 21(2) and (4) of the Act read in conjunction with section 19(1)(b). He also held that if a duty arose under section 19(1)(b), it was not open to the service provider to tell the disabled person that he could afford to have a wheelchair himself and thereby avoid a finding that it was in breach of duty.
6. Mr Ross had made no complaint against STAL otherwise than by way of reference to section 19(2)(b) combined with sections 21(2) and (4), and the judge dismissed his claim against them once he had found that Ryanair was the provider of the service in question and not STAL.
7. The judge made the following findings of fact.
8. Ryanair operate flights out of Stansted Airport. They currently operate two thirds of the flights leaving from and returning to that airport. They are the largest low fare airline in Europe. They are justifiably proud of their reputation, and they made profits of about £30 million in the accounting quarter immediately preceding the trial. Their contribution to STAL is considerable, both directly in terms of the revenue they pay, and indirectly in terms of the money spent by their customers in the airport facilities (such as the cafes, bars and shops).
9. Until 1995 most, if not all, UK airlines paid for any cost that was incurred when a passenger in a wheelchair embarked on a flight, as did Ryanair. Ryanair decided, however, with effect from 21^st August 1995, a date which preceded the coming into force of the 1995 Act, that they would only provide free assistance to disabled passengers who were travelling with their own or with a hired wheelchair. Disabled passengers who did not fall into this category, like Mr Ross, would have to pay the provider themselves for the hire of a wheelchair. STAL were aware of this change of policy, but they took no steps to enforce a different policy under the terms of their contractual arrangements with Ryanair. Ryanair's new policy was expressed in these terms:

"Ryanair will only provide assistance to passengers travelling with their own wheelchair (to be booked in advance up to a maximum of four per flight).

Passengers who do not have their own wheelchairs will NOT receive any form of assistance.

There is no longer a supplier at Stansted to offer a 'pay as you go' facility for passengers who do not have their own wheelchair…If the passengers do not have their own wheelchair there will be no assistance at Stansted."

We were told that by March 2002 Ryanair had adopted the policy of referring relevant passengers to an agency which would provide the requisite service for reward, as happened in Mr Ross's case.

10. In September 2002 Ryanair justified their policy to the Disability Rights Commission ("DRC") by saying that if they were guilty of any discrimination such discrimination would be in favour of wheelchair-bound passengers. They were themselves absorbing the third party charges levied by ground-handling companies at Stansted and six other English and Irish airports, notwithstanding the fact that in many cases these charges were greater than the total airfare they received. They were not willing, however, to extend the subsidy to non-wheelchair-bound disabled passengers. They took the view that if these passengers were not wheelchair-bound, they were clearly capable of walking to and from the airport check-in areas, and it was not unreasonable to ask them to walk to the aircraft. If they wished to avail themselves of third party wheelchair assistance services, Ryanair asked them to pay the third party provider direct for these services. No such charges were levied at 50 of the 56 airports to which Ryanair flew, so that the issue did not arise at those airports.
11. At the trial, however, Ryanair's witnesses distanced themselves from the suggestion that every passenger who was not in a wheelchair was capable of walking from the check-in area to the aircraft. This was not the case with Mr Ross, and the judge remarked that no doubt it was not the case with a number of other passengers.
12. The judge summarised briefly the evidence he had received about the practice of other airlines. Put shortly, virtually all other airlines, both at Stansted and at all other major British and European airports of a similar size, followed an industry practice whereby the airline assumed responsibility for passengers from check-in desk to departure gate on an outward journey and from departure gate to the baggage reclaim area on the return journey. The one airline which followed a practice similar to Ryanair's at Birmingham Airport was said to be in breach of its contract with the owners of that airport. There was also one other airline at Stansted which was now levying a charge of £20 on disabled passengers who requested a wheelchair unless they were registered disabled. In Ryanair's experience Kerry Airport was the only airport in Ireland or the United Kingdom where the airport company (rather than the airline) paid for the cost of providing wheelchair assistance in the part of the airport that was usually deemed to be the responsibility of the airlines to cover.
13. In a section of his judgment entitled "The Documentary Evidence" the judge set out extracts from documents and witness statements emanating from the British Airports Authority which attested to what I have described as the industry practice. It is clear from this evidence that in 1961 an agreement was negotiated between the Ministry of Aviation and six of the airlines which then used Heathrow (the British airlines then being the two nationalised airlines, BEA and BOAC, and one private airline, Cunard Eagle) whereby responsibility was divided up in the way which was subsequently adopted as a widespread practice in the international airline industry. Much more recently, the Secretary-General of the British Air Transport Association wrote in November 1998 to the Chief Executive of the Airport Operators' Association, following a seminar on the effect of the 1995 Act, in which he stated that his association had always recognised that once a passenger had checked in, it was the airline's responsibility to ensure that the appropriate level of service was available. Whoever actively provided the service, his association had never suggested that it was the airport's responsibility to provide it.
14. Greater awareness of the necessity of pinpointing clearly where responsibility lay in relation to providing for the needs of disabled passengers, both on a national and international basis, was reflected in a number of the documents STAL placed before the court. A September 2000 letter from British Airways to the British Airports Authority, for instance, reflected that airline's acceptance of the fact that responsibility for providing a service to disabled passengers is transferred from the airport operator to the airline at the point of check-in. It also appeared from an October 2002 document that Airports Council International Europe, which represents 450 (but not all) airports in 48 European countries, was urging the European Commission to legislate along the lines of an existing "Airport Voluntary Agreement". Its proposal was that division of the responsibility for assisting "passengers with reduced mobility" should be defined in such a way that all airlines were obliged to assume the responsibility vis-à-vis their customers from the moment of check-in.
15. At international level, too, a body called "International Civil Aviation Organisation", which is based in Montreal, Canada, published a circular in 1999 which is numbered 274-AT/114 and entitled "Access to Air Transport by Persons with Disabilities". This circular sought (in para 29) to place the responsibility for providing services to persons with disabilities on the airlines (who are described as "operators" in the circular) from the moment of check-in. The services to be provided on request should include assisting with registration at the check-in counter, assisting in proceeding to the boarding area, and assisting in proceeding to the general public area.
16. The Department of Transport's Code of Practice entitled "Access to Air Travel for Disabled People", published in March 2003, represented the industry–wide understanding of the division of responsibility. In para 2.14 it recorded the general principles accepted by members of the British Air Transport Association and the Airport Operators' Association, to the effect that the cost of providing assistance should not pass direct to the disabled passengers. In para 4.15 it stated that the services to be provided upon request included assistance with registration at check-in and assistance in proceeding to the gate.
17. The judge referred briefly in his judgment to a company called Groundstar Handling Ltd ("Groundstar"). Virtually all airlines engage ground-handling agents at airports. Their job is to assist passengers and deal with luggage on the airlines' behalf. An EU Directive guarantees airlines the right to "self-handle" if they wish (as Ryanair now does in connection with an unrelated part of its business at Stansted), and it also guarantees airlines in the European Union the freedom to choose a ground-handling agent who is independent of both the airport and the dominant carrier at the airport. An IATA standard form ground-handling agency contract is used throughout the world. The agents must receive a licence from the airport authority to operate at the airport, and they will then enter into contracts with individual airlines. If an airline wishes to self-handle it must also receive a licence from the airport authority. By this means the authority can maintain an appropriate degree of quality control over the services rendered to passengers at the airport.
18. In this context STAL entered into the requisite licence agreement with Groundstar, and Ryanair appointed Groundstar their ground-handling agents at Stansted. Groundstar staff wore Ryanair uniforms for this purpose. Under their licence agreement Groundstar was obliged to comply with all relevant statutory requirements pertaining to the services it provided, including obligations under the 1995 Act.
19. A company called ADI Securicor acted at the relevant time as a specialist ground- handler at Stansted. Their role was to provide assistance on behalf of the airlines to passengers with restricted mobility, and it carried specialist equipment, such as an ambulift, for this purpose. They were appointed to this role by a committee which represented all the airlines operating at Stansted, and their normal practice was to charge the relevant airline a fee of about £18 for each passenger they helped by providing a wheelchair and "pusher" between the check-in desk and the departure gate. The airline would then absorb this charge into its general overheads. It was this arrangement from which Ryanair distanced itself when it initiated its new policy in August 1995, so that Mr Ross was obliged to pay the company's fee himself.
20. In addition to these arrangements made by the airlines, STAL made their own arrangements for assisting disabled passengers who required wheelchair assistance in the parts of the airport (prior to arrival at the check-in desk) which they had traditionally regarded as within its own area of responsibility.
21. At the hearing before us Mr Langstaff QC, who appeared for STAL, sought to argue that the answer to the legal issues we had to resolve on the appeal could be found in the small print of the ground-handling contractual documentation. This was not a point which had featured in STAL's statement of case, and it was not argued at the trial. Indeed, the relevant agreements appeared in evidence for the first time as exhibits to a second witness statement by STAL's principal witness which was served without permission just before the trial started. In any event the obligations set out in those agreements related only to the services which Groundstar were contractually obliged to provide. The precise nature of the obligations which Ryanair obliged themselves to provide to their disabled passengers in their contractual arrangements with STAL were at the heart of the dispute between those two companies.
22. As between Ryanair and Mr Ross the contractual position was quite clear. Ryanair's terms and conditions expressly refer the reader to a document called "Frequently Asked Questions" for information on their policies and procedures for wheelchair assistance, where he will find the position very clearly set out:

"Can I arrange assistance for wheelchair passengers whilst reserving my flights?

Wheelchair passengers:

Ryanair provides full assistance to wheelchair passengers free of charge. Up to four wheelchair passengers are permitted on any one flight. This also applies to group bookings. It is imperative that such passengers travelling in their own wheelchair advise of same at the time of reservation, as not to do so, due to the above limitation, may result in Ryanair being unable to accept the passenger for the flight reserved. In order to qualify for assistance, the passenger must be travelling in his or her own wheelchair. Passengers requesting assistance, who do not have their own wheelchair, will be directed to the wheelchair service provider at the relevant airport (see destinations link for airport information numbers). These companies will offer specialised assistance for a nominal fee which is payable directly by the passenger to the handling company."

23. Ryanair's obligation to Mr Ross was to use their best efforts to carry him and his baggage with reasonable dispatch from Stansted to Perpignan and back, subject to qualifications that are familiar in contracts of this kind on which nothing turns in the circumstances of this particular dispute.
24. As between Ryanair and STAL there was no such simple answer. In para 40 of his judgment the judge said that he accepted Mr Langstaff's submission to the effect that Ryanair was bound by the clear understanding between airports and airlines in the United Kingdom and Europe which had existed until 1995. The judge accepted that this custom (by which as between airline and airport the airline would provide a wheelchair service from the check-in desk onwards) was notorious, certain and reasonable, and that it had been in operation since 1961. He continued:

"Whether this is a case where a term could be implied or reliance could be placed on the overriding [custom and] practice may not matter much in the circumstances of this case, but, Mr Langstaff submitted, [Ryanair] could not render any such term no longer effective unless a waiver could be established. I accept Mr Langstaff's submissions."

25. I do not consider that the position is as straightforward as this. From August 1995 STAL knew that Ryanair were no longer agreeing to provide this type of assistance to disabled passengers (without a wheelchair) between the check-in desk and the departure gate. They knew that they were not obliged under any contract with Ryanair (or by custom and practice) to provide this service themselves to Ryanair's passengers. But although they might have attempted to make Ryanair obliged by contract to provide this service free of charge to these passengers (and this was the sort of obligation the EU Commission was being urged to introduce by legislation two years ago) they did not. As a matter of contract, therefore, neither Ryanair nor Stansted had any responsibility. What we have to determine is where responsibility rested under the 1995 Act.
26. I need to say a little more now about the position on the ground at Stansted Airport. Although the judge referred to Satellite 3, it was Satellite 1 which Ryanair was using at the time of Mr Ross's flight to Perpignan in March 2002. Although an automated train service was used for access to Satellite 1, this difference does not matter for the purposes of this appeal. It was common ground that Mr Ross reasonably required a wheelchair for the purpose of reaching the departure gate, and that there was a Ryanair customer service desk at the entrance to Satellite 1. Ryanair's only contractual requirements of their passengers were that they must have checked in at least 30 minutes before the flight and that they must have arrived at the departure gate at least 10 minutes before the flight was due to start (with no concession at all being given to passengers who arrived late). Their personal preference would have been that their passengers should go from the check-in desk to the departure gate as directly as possible, but Stansted's commercial (and other) interests dictated that airline passengers should be delayed in the area of the "airside" cafes, shops and bars until 30-40 minutes before their flight was due to leave.
27. I have set out the relevant statutory provisions in paragraph 3 above. It is section 19 of the 1995 Act which defines the relevant unlawful conduct. Mr Ross's case against STAL was founded on section 19(1)(b) alone. The case against Ryanair was founded on section 19(1)(b) and (d), the latter because it was Ryanair who were providing a service to Mr Ross pursuant to the terms of a contract. Although Mr Tager QC, who appeared for Ryanair, argued the point vigorously, the "transport exception" contained in section (19(5) manifestly does not apply. The services with which we are concerned in this case relate to Mr Ross's access to and use of the "airside" of Stansted Airport between the check-in desk and the departure gate on his outward journey and between the arrival gate and the baggage reclaim area on his return journey, and these services do not consist of the use of any means of transport. Paragraph 2.36 of the DRC's Code of Practice on Rights of Access, Goods, Facilities, Services and Premises provides helpful illustrations of the effect of the Act in this regard.
28. Because a claim founded on unlawful discrimination contrary to the 1995 Act is treated pursuant to section 25(1) in the same way as any other claim in tort, I can see no reason why we should not be able to order contribution as between Ryanair and STAL in the event that we were satisfied that they were both guilty of unlawful discrimination against Mr Ross. We received no submissions to a contrary effect.
29. The main question that falls to be determined is whether Ryanair, or STAL, or both of them, provided to Ryanair's passengers the service of access to and use of the relevant airside parts of Stansted Airport. In my judgment they both did. STAL were the owners of the airport, and they allowed members of the public who held a boarding card access to and use of the relevant airside parts of their airport on their outward and return journeys.
30. Ryanair, for their part, provided this service to their passengers because in giving them a boarding card it provided them with the key which unlocked this access for the purposes of their flight and permitted them this use both on their outward and on their return journeys. We do not for the purposes of this appeal have to say anything about the factual situations which counsel discussed during the course of their interesting arguments: where responsibility lies, for instance, as between the owners of a village hall and a charity which uses it for a jumble sale, or between the owners of a very large block of offices and the occupiers of an office that is being used by a member of the public and is far removed from the main door of the office block. Every case will fall to be determined on its particular facts.
31. The long distance between the check-in desk and the departure gate at Stansted Airport makes it unreasonably difficult for disabled persons to make use of the service involved in access to and use of Stansted "airside". In these circumstances the combination of section 19(2)(a) and 21(2)(d) imposed an obligation on both STAL and Ryanair to provide a reasonable alternative method of making this service available to a disabled person. Since an auxiliary aid like a wheelchair would facilitate disabled persons' use of this service it was the duty of both STAL and Ryanair to take such steps as was reasonable for them to have to take in order to provide a wheelchair for them (see section 21(4)(b)).
32. When we heard this appeal, another division of this court had just given judgment in Roads v Central Trains Ltd [2004] EWCA Civ 1541. Although a transcript was not then available, we were supplied with a note of the judgment, and we invited counsel to make written submissions to us, if they wished, as soon as the transcript was available. Now that the transcript is available, we can see that in para 14 of his judgment Sedley LJ discussed the meaning of the duty to "provide a reasonable alternative method" of making a service available (see s 21(2)(d)). He said:

"[T]he policy of the Act, as I would accept, is what it was held to be by Mynors Ch (albeit by way of restricting the duty) in In re Holy Cross, Pershore [2002] Fam 1 at para 105: to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large."

A little later (at para 30) Sedley LJ said:

"…[T]he policy of the [1995 Act] is not a minimalist policy of simply ensuring that some access is available to the disabled: it is so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public."

33. In these circumstances I accept the further submission of Mr Galbraith-Marten, who appeared for Mr Ross, to the effect that his client was entitled to enjoy the service at Stansted airside at no cost, as did those who did not have his particular disability. Because the obligations contained in section 21 of the 1995 Act are owed to disabled persons as a class and not to any particular claimant (as Sedley LJ makes clear in paras 11 and 26 of his judgment in Roads), it is irrelevant whether a particular claimant might have the financial means to pay for the necessary auxiliary aid. There was no suggestion that it was not reasonably practicable for Ryanair and/or STAL to provide a wheelchair without cost, given their financial resources. Nor did either of the defendants seek recourse to any justification defence under s 20.
34. In my judgment, therefore, both STAL and Ryanair were guilty of unlawful discrimination against Mr Ross contrary to section 19(1)(b) of the 1995 Act, and the judge was wrong to acquit STAL of responsibility.
35. The claim of unlawful discrimination contrary to section 19(1)(d) of the 1995 Act was made against Ryanair alone. I have set out Ryanair's policy in para 9 above. The complaint here is that Ryanair were discriminating unlawfully against Mr Ross, a disabled person with restricted mobility, as compared with other disabled passengers in the same category, because they provided the assistance of a "pusher" free of charge if such a passenger was travelling with his/her own or a hired wheelchair, while they required Mr Ross, and others like him, to pay when they were not. I agree with the judge that Ryanair cannot escape liability by asserting that they were treating the more severely disabled in a more favourable manner. They discriminated against Mr Ross for a reason related to his disability (namely that he had restricted mobility and did not have a wheelchair when he presented to the check-in desk) because they treated him less favourably than they treated others to whom that reason did not apply (see s 20(1)(a)).
36. It follows that both defendants are 100% liable to Mr Ross. We now have to determine the extent to which each should contribute as between themselves, because this was not a task the judge undertook himself, given the nature of his findings. For my part I find it difficult to distinguish between the two. Ryanair, as I have found, owed Mr Ross the relevant duties, but for the purposes of their undertaking they would have preferred that he moved by the most direct route immediately from the check-in desk to the departure gate. STAL, on the other hand, reaped the benefit of the passenger's extended sojourn in the area of the cafes, bars and shops and did nothing at all to ensure that their obligations under the 1995 Act were being complied with once they had realised, before the Act came into force, that Ryanair were not going to provide the requisite wheelchair service. I do not consider that STAL are entitled to say that Ryanair should have provided a wheelchair free of charge, so as to enable them to avoid their responsibilities. In 1995 Ryanair made it quite clear that they were not going to provide a free wheelchair for passengers like Mr Ross, and there was nothing in any past practice (or in any contract they made with STAL, on which STAL are entitled to rely on this appeal) that obliged them to.
37. The evidence revealed the commendable efforts STAL had made to comply with their obligations under the Act. In 1997 Stansted Airport won the EASE award of the Queen Elizabeth Foundation for Disabled People on account of the high standard of the facilities and access for the disabled at the airport. Three years later they were among the finalists for the same award. STAL's liability in this case arises not because of any reluctance on their part to fulfil their overall responsibilities towards the disabled, but because they failed to recognise that they had important responsibilities under the Act which simply were not being fulfilled by anyone once Ryanair had decided to break away from the industry's customary practice in 1995 in their pursuit of a cheaper "no frills" service for their clientele, a service which has proved to be very popular. STAL's failure is a serious one, which is not in any way excused by the unlawfulness of Ryanair's policy.
38. For these reasons I would dismiss Ryanair's appeal in so far as they sought an order that the claim against them be dismissed, but would grant a declaration that STAL also unlawfully discriminated against Mr Ross and order STAL to contribute 50% of Ryanair's liability as to damages and interest. We will hear counsel as to the appropriate order for costs, both here and below, when this judgment is handed down.

Lord Justice Jonathan Parker:

39. I agree.

Lord Justice Keene:

40. I also agree.
ORDER: Appeal dismissed; date to be arrange to agree ancillary matters (Order does not form part of approved judgment)