Nottingham Travel (UK) Limited v Pakistan International Airlines Corporation [2025] EWHC 1304 (Ch)

“On or around 18 September 2012 the Defendant served upon all of its accredited IATA member agents who provided it with a bank guarantee (except two with whom the Defendant was then in litigation, namely Global Service Travel Agents (UK) Ltd and Raison Travel Ltd) a Notice of Termination (“NOT”) which terminated all then existing contractual arrangements between each of those agents, who included the Claimants, and the Defendant with effect from 31 October 2012. At the same time, the Defendant offered to enter into a New Agreement with each of those agents, including the Claimants, pursuant to which they could continue to sell tickets on the Defendant’s air services on the terms set out therein (and thereby continue to earn Net Sale Remuneration).”

“Any disadvantage to the Claimants in giving up any potential claim that they might otherwise have had against the Defendant was balanced by the advantage to them in terms of having the benefit of an ongoing commercial relationship with the Defendant (and thereby the opportunity to earn Net Sale Remuneration) and of having the benefit of the opportunity to earn commission pursuant to the incentive scheme for the period 1 July 2012 to 31 December 2012 forming part of the New Agreement.”

“As to paragraph 27, “Net Sale Remuneration” was not in practice of any value whatever to the Claimants as the Defendant must have appreciated.”

“A form of remuneration introduced by PIAC on 16 October 2010 in which the Claimants were offered tickets at 7% below the Net Price (thus at a price lower than that at which PIAC offered them for sale directly to the public)”

“PIAC contends that it was entitled under the terms of the PSAA to stop paying the 9% Basic Commission. It alleges that it did so by giving notice to agents on or about 23 September 2010 that it was moving to “net fares” ie Net Sale Remuneration. The Claimants contend that it was not permissible to reduce commission, under the PSAA, to zero which was the effect of the change to Net Sale Remuneration. Further, they contend that Net Sale Remuneration was not remuneration at all by PIAC but rather depended on an agent charging its own customers.”

“In my judgment, the Claimants remained entitled to receive 9% Basic Commission (including commission on the YQ element of the fare) after October 2010”

“The result of the above discussion is that the position immediately prior to service of the Notice on 14 September 2012 was this: (i) Each of TT and NT was entitled to 9% Basic Commission including the YQ element of the fare …”

“… It is entitled to Net Sale Remuneration from 1 November 2012 together with the APS provided for in the New Agreement …”

“If it elects to affirm the New Agreement and the collateral contract, it will have no right to commission in respect of the period prior to 1 November 2012 and its rights thereafter will be to Net Sales Remuneration together with the APS for 2012 and a similar incentive for 2013.”

“NT is bound by the New Agreement and cannot claim commission in respect of any period prior to 31 October 2012. It is entitled from that date to the reward of Net Sales Remuneration and the amounts due under the APS for the second half of 2012 (which as I understand it has in fact been paid). It is also entitled to a similar incentive for 2013 and the first half of 2014 and to the same benefits as the APTA litigation agents received under their compromise agreement.”

“1. Judgment is hereby entered in favour of TTL and NTL against the Defendant for an account and enquiry as to the amount due on the basis of the judgment herein and for an order that the Defendant do pay the sums found due upon the taking of the said account. … (i) NTL is entitled from 31 October 2012 to remuneration in the form of NSR for the sale of air passenger transportation ; (ii) NTL must give credit to the Defendant for the value of any benefit already received in the form of Net Sale Remuneration …”

“As to paragraph 1 of the Particulars of Claim, the Defendant admits that the following the trial of the action before the Honourable Mr Justice Warren, and the judgment (“the Judgment”) handed down on 14th June 2017, Mr Justice Warren made an order (“the Order of 14th June 2017”). The Defendant relies on the Judgment and the Order of 14th June 2017 their full terms and effect.”

“… the Defendant did switch its remuneration of the Second Defendant to Net Sale Remuneration with the effect from autumn 2010. Under Net Sale Remuneration travel agents including the Second Claimant are provided with tickets for a Base Fare on which they are permitted to charge customers a Passenger Service Fee of up to 7%. The Defendant automatically charges the Passenger Service Fee at the rate of 7% on tickets sold direct to customers at its own offices.”

“The question is whether PIA is permitted to contend that the meaning and effect of NSR is otherwise than as found and/or described in my judgment and my order of June 2017. This issue is raised in the context of both issue estoppel and abuse of process.”

“In a strict sense, the question of issue estoppel does not arise as formulated. NSR is defined as it is. It is not a question of being allowed to say that NSR is modified. The question in reality is whether it is now open to PIA to contend that the Claimants were not remunerated as they would have it by NSR, but rather they were remunerated by Revised NSR or indeed did not receive any other benefit. That is one limb. The other is whether there is an issue estoppel which could not be cured by an amendment to the pleading or variation of my order preventing them from doing so, or whether it would be an abuse for them to do so.” (2) At [54]: “In my judgment, no issue estoppel arises in relation to NSR. I made no finding about whether PIA was in fact operating net fares in accordance with the definition of NSR. It was the underlying assumption that it did so. But neither the pleadings nor Mr Schama’s skeleton argument are sufficient to give rise to an estoppel. An estoppel can arise only out of my actual findings or matters which, because of common ground, can be treated in the same way.” (3) At [55]: “It was not necessary to any of my conclusions that NSR as defined actually existed and was implemented. Although I did discuss NSR in the context of remuneration, it was a matter on which I expressed only a provisional view. In relation to the main claims, it was not necessary to decide whether NSR was the precise basis of the new method of reward in all its detail. The arguments on those issues would have been the same on the basis of Revised NSR. Nor did I make any findings about what had actually been paid or received. That was certainly not common ground. And I certainly made no finding that payment had been made in accordance with NSR.” (4) At [62]-[65]: “So far as the accounting exercise is concerned, whether the profit was available because PIA was purporting to implement NSR or Revised NSR or simply not implementing its own policies at all, the inquiry would be the same in all cases. However, for the Defendant to raise this point, it needs to amend paragraph 12 of its defence in the action. It is inconsistent with that pleading for it to claim that it has remunerated or benefited the Claimants by Revised NSR. In principle, paragraph 12 seems to me - save for the first sentence of it - unnecessary to PIA’s case at all. What PIA really needs is a revision of my order to provide - in the light of my early ruling for PIA - for the Claimants to give credit for the actual profit which they have made, that is to say the difference between their purchase price from PIA and their sale price to customers. As a matter of power and jurisdiction, I consider that I am able to amend my order to provide for credit to be given in this way. However, no application has yet been made for me to do so, I have not had argument on the point, nor has Mr Shepherd had the opportunity to say that I have no power to do so …” (5) At [71]-[73]: “… since this argument formed part of Mr Shepherd’s argument that NSR should be left out of account, I propose to express my views. These are not - unlike what I said in the judgment - provisional views. First: NSR is, in my view, remuneration. I reach this conclusion for the reasons given in paragraphs 205 and following of the judgment, which I do not repeat. Secondly: in contrast, Revised NSR is not remuneration. There is a real difference between the two, notwithstanding their economic effect may be the same. It is commonplace to find commercial results being effective in different legal ways. This does not mean that they fall to be treated in the same way for all purposes …” (6) At [76]-[77]: “It is correct that my order does provide only for credit for NSR. For the reasons given above, an amendment to my order would be needed, as well as amendment to paragraph 12 of the defence in the main claim to allow PIA now to claim credit for some other discount. Again for reasons already given, I do not now amend my order because the Claimants may seek to argue that I have no power to do so or that I should not exercise that power for reasons other than those which have already been made in relation to the abuse argument. The Claimants will no doubt reflect on this judgment to decide whether they wish to continue to contend that PIA should not be entitled to credit in accordance with what I have concluded is the correct principled approach. Assuming that I have power to amend my order in relation to the basis on which credit is to be given, continued opposition would, as I see it at present, have to be on the footing that to allow it to take place would be an abuse of the process of the court by PIA.” (7) At [80]: “The answers to the preliminary issues are as follows. The question of issue estoppel does not arise in the precise way which is formulated in the preliminary questions. But as to the substance of the preliminary issues, there is no issue estoppel preventing PIA from contending that the Claimants were provided with some sort of benefit other than NSR, in particular Revised NSR.” (8) At [82]-[83]: “I turn to issue 3 next. The correct way for quantifying the benefit received by way of NSR is not the real issue. No benefit was provided by implementation of NSR. Such benefit as was provided was provided by provision of tickets for a price, the benefit being in principle the profit made on each ticket. In order to obtain this credit, PIA needed to amend its defence and obtain a variation to my order. The abuse issue: I would decline to answer this issue other than as part of an application to amend the defence or vary my order.”

“The condition which I impose is that the defendant undertakes to the court and to the claimant not to seek in any appeal or in any other proceedings or in any other circumstances whatsoever to contend that the claimant received the two emails. It is critical to my conclusion to allow this application that the emails are irrelevant to any issue in light of my finding that they were not received. Apart from that factor, my conclusion would be to dismiss the application and it would be a clear decision in that direction.”

“NTL must give credit from 31 October 2012 to the Defendant for any sum charged to a customer for a given ticket that exceeded the price for which NTL purchased that ticket from the Defendant.”

“The first question I need to address is whether PIA is entitled to rely on Revised NSR as the proper contractual basis under which NT is to be rewarded or whether it has to accept NSR as the proper basis. I dealt in some detail with the differences between NSR and Revised NSR in my oral judgment on 8 December 2017. The differences between the two arise in two contexts. The first is the basis on which NT is to be remunerated; the second is the credit which NT must give in the taking of the account. In that latter context, it had, until comparatively recently, been NT’s position that no credit need be given at all. This was because the June Order provided for credit to be given for remuneration received in the form of NSR: since it was no longer PIA’s case that NT was entitled to and had received NSR but was entitled to and had received only Revised NSR, my order did not bite since I had not ordered credit to be given in relation to Revised NSR. However, the current position is that NT accepts that credit is to be given for the benefit which it has actually received in respect of ticket sales in accordance with my earlier ruling about the principled way of giving such credit. The June Order is to be given effect to accordingly. I come later to what that credit is to be given against.” (2) At [5], he said (emphasis added): “What I said [in my judgment delivered on 12 March 2018] was said in relation to the credit which NT has to give in the account for the benefit it has received. I said nothing there (or elsewhere so far as I can recollect) about an amendment to the pleadings to reflect a change in the basis of reward for which PIA wished to contend. For it to be able now to run that case, not only would the Defence require amendment but also my main judgment would require revision and the June Order too might require amendment. At present, the June Order provides (a) at paragraph 1 for an account and enquiry to be taken as to the amount due on the basis of the judgment and for an order that the Defendant do pay the sums found due upon the taking of the said account and (b) at paragraph 3(i) that NT is entitled from 31 October 2012 to remuneration in the form of NSR. Paragraph 3(i) simply reflected what I had said in the judgment and was consistent with paragraph 1. If PIA is now to assert that Revised NSR is the correct method of reward, then not only does paragraph 3(i) need to be amended, but also the judgment needs to be revised to explain the revised basis.” (3) At [6], he said (emphasis added): “There is no application by PIA to amend its pleadings let alone to revise my main judgment (with the result that paragraph 1 of the June Order would, as already worded, automatically give effect to any revision). There are obvious and significant difficulties which would face such applications, even assuming that I have power to revise the judgment (which I doubt I do have). Not least among the difficulties is this consideration. If such amendments were effected, NT’s claim would be very different from that which it has so far established. Instead of the remedy so far sought and obtained, it would appear that NT’s claim against PIA would be for damages for breach of contract, that is to say by selling tickets without adding a 7% service charge. To succeed on that claim, NT would need to succeed on the point of construction of the SOP, namely whether online sales were also subject to the obligation to add the 7% service charge. If NT lost on that issue, it may wish to consider and raise other matters (including the possibility of rectification) arising out of what it was told about the New Agreement, an aspect which it was not necessary to investigate at the trial because it was common ground that the basis of reward was NSR as I described it in my main judgment. Another difficulty is that Revised NSR may not be “remuneration” at all, an aspect on which I have expressed a preliminary, obiter, view that it is not. The consequences of that are likely to be significant because, on any view I would have thought, IATA regulations require agents to be provided with some form of “remuneration”.” (4) At [7], he rejected the submissions of Mr Bell on behalf of PIAC, which he summarised as including that “to insist upon ‘Old NSR’ being applied, would be to hold the parties to a fiction created by an infelicitous pleading, rather than to the true contractual bargain they struck”, saying (emphasis added): “This categorisation of the position is not one which I accept. It is not an infelicitous pleading which has led to the difficulty. It is the express assertion by PIA throughout the proceedings until comparatively recently of NSR as the basis of remuneration which now presents PIA with problems.” (5) At [8], he said: “If PIA wishes to rely on Revised NSR as the method of reward to NT it needs to amend its pleading and needs to persuade me that I should revise my main judgment and that I have jurisdiction to do so. If it makes an application, it would need to also to persuade me that it is not too late to do so.” (6) At [9], he said: “It follows from this discussion that, in the taking of the account, NT is entitled to claim that it should have paid PIA for a ticket only an amount 7% below the price at which PIA was offering the ticket to the public.” (7) At [11], he said: “Accordingly, my ruling is that NT is entitled to reward (which for reasons previously given I consider to be “remuneration”) in the form of NSR.” (8) At [15], he said: “These examples show that the net amount for which PIA must account is actually independent of the amount for which NT actually sold the ticket: PIA simply has to account for a figure equal to the difference between the price at which NT was entitled to acquire the ticket (£93 in the two examples) and the price at which it actually acquired the ticket (£100 or £95 in the two examples). My ruling is that the account should now proceed on that basis, but subject to what I say below in relation to ascertainment of the price at which NT was entitled to acquire the ticket.”

“Paragraph 3(i) of the Order of 14 June 2017 is to be interpreted and applied on the following basis: a. NSR carries the meaning given to it in the judgment dated 14 June 2017; b. NSR is to be applied on the basis of the lowest published fare at which the public can acquire the same ticket direct from PIA whether over-the-counter or online or otherwise; and c. PIA must account to NTL in respect of each ticket sale for the difference between the price at which it in fact provided the ticket to NTL and the price at which NTL was entitled to acquire the ticket (which is calculated by reference to the lowest published price at which it offered the same ticket to the public on the exact date and time the ticket was issued by NTL).”

“Remuneration under the New Agreement is in the form of Net Sale Remuneration (“NSR”). This replaced the previous form of commission payable under the Original Agreements, and requires the Defendant to provide tickets to travel agents at a discount of 7% in comparison to the lowest published price at which it offers tickets to the public.” (2) At [41], he said: “In relation to the calculation of NSR the essence of the account which has been directed is one which requires a comparison, in respect of each ticket sale to each of the Claimants, between (i) the price at which the ticket was in fact provided to the relevant Claimant, and (ii) the price at which the relevant Claimant was entitled to acquire that ticket. In relation to (ii), the price at which the relevant Claimant was entitled to acquire the ticket falls to be calculated by reference to the lowest published price at which the Defendant offered the same ticket to the public on the exact date and time the ticket was issued to the relevant Claimant. To state the obvious, an integral component of this accounting exercise is, in the case of each ticket sold to the Claimants, information as to the lowest published price at which the Defendant offered the same ticket to the public on the exact date and time the ticket was issued to the relevant Claimant. The 7% discount, of which the Claimants should have had the benefit on each ticket purchased from the Defendant, was a 7% discount from the lowest published price at which the Defendant offered the same ticket to the public on the same date and at the same time.”

“The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. … The second species, which I will call “issue estoppel”, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”

“Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue.”

“In the opinion of their Lordships, it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle—namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs.”

“The judgment was given by consent and the consent was given because the company claimed, and the plaintiff accepted, that there was no lending of money. In my view, that admission by the plaintiff, given to the court and founding the judgment by consent, was just as efficacious for the purpose of issue estoppel as a judicial decision by the court after argument founding a similar judgment. The only sensible approach of the law, in my view, is to treat an issue as laid at rest, not only if it is embodied in the terms of the judgment, or implicit in the judgment because it is embodied in the spoken decision, but also if it is embodied in an admission made in the face of the court or implicit in a consent order.”

“Suppose A sues B for payment of a sum said to be due under a contract. B may defend the action on any number of grounds. Some of these are undoubtedly capable of giving rise to an issue estoppel (against A if the defence succeeds, and against B if it fails). So for example if B’s defence is a purely factual one such as that his signature on the contract was forged, then a decision on that question will be binding on the parties, and will preclude them from relitigating the point if A subsequently sues B in a second action for a further sum said to be due under the same contract. So too if B’s defence in the first action is that on the true construction of the contract the sum is not due; a decision in the first action, whether in favour of A or B, will prevent the parties from arguing for a different construction of the same clause in a second action on the same contract (subject to the special circumstances exception recognised in Arnold ). And thirdly if B’s defence is that, on a true analysis of the circumstances, there was no consideration provided by A and hence the supposed contract was not legally binding, that too would preclude the parties from relitigating the point in a second action on the same contract.”

“…there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: “Issue estoppel” was the expression … adopted by Diplock LJ in Thoday v Thoday [1964] P 181, 197-198.” (2) Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853, Lord Upjohn at 947: “there may be many reasons why a litigant in the earlier litigation has not pressed or may even for good reason have abandoned a particular issue. It may be most unjust to hold him precluded from raising that issue in subsequent litigation and see Lord Maugham’s observations in the New Brunswick case. All estoppels are not odious but must be applied so as to work justice and not injustice and I think the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind.” (3) Vervaeke v Smith [1983] AC 145, Lord Hailsham LC’s reference at 156D to the earlier decision as having been a decision “on the very point at issue” in the later proceedings. (a) At [127]: “For something decided in earlier proceedings to give rise to an issue estoppel, it must have been fundamental to the outcome of those proceedings.” (b) At [128], approving the following statement in Spencer Bower and Handley: Res Judicata (6th ed.) at paragraph 8.23: “The determination must be fundamental, not collateral. An express decision will not necessarily create an issue estoppel. Only determinations which are necessary for the decision, and fundamental to it, will do so. Other determinations, however positive, do not.” (c) At [129], citing the judgment of Dixon J, sitting in the High Court of Australia, in Blair v Curran (1939) 62 CLR 464, where he said at 532-533: “Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.” (5) Spencer Bower at paragraph 8.05 (footnotes omitted): “Estoppels require a court invited to apply contradictory statements to take the earlier as the truth. There can be no issue estoppel unless there is a substantial identity between the res judicata and an issue in the later proceedings. Both must relate to the same subject matter, and the party setting up the estoppel must establish this.” (6) Spencer Bower at paragraph 8.19: “An issue estoppel only applies if an issue in the second proceedings is the same as one decided in or covered by the first.”

“If an issue has been distinctly raised and decided in an action, in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them.”

“In my opinion we are at least justified in holding that an estoppel based on a default judgment must be very carefully limited. The true principle in such a case would seem to be that the defendant is estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment; in other words, by the res judicata in the accurate sense.”

“… I am unable to discover anything in the judgment or in the record of the proceedings in the former action that can estop the appellants from now litigating the question of the amount of interest payable under the 992 bonds sued upon in the present action. In the earlier action the only question of construction mentioned in the writ or in the statement of claim was one as to the construction of the bond then being sued upon, and the judgment pronounced in default of appearance cannot, in my opinion, be regarded as havingdetermined the question of the construction of the other bonds possessed by the respondents.”

“(ii) … at the time the Claimant and the Defendant entered into the 2012 Agreement and in order to induce the Claimant to enter into the 2012 Agreement, Mr Zulfiqar Bijarani, a manager of the Defendant, confirmed to the Claimant that the Claimant would be offered tickets at 7% below the price at which they were offered by the Defendant to the public to allow the Claimant a 7% margin for remuneration or commission. (i.e. it would be entitled to NSR, as defined in the Particulars of Claim). (iii) It was therefore a term of the 2012 Agreement, alternatively a term of a collateral oral contract between the Claimant and the Defendant, that the Claimant would be entitled to NSR.”

“A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example a reply to a defence must not bring in a new claim. Where new matters have come to light a party may seek the court’s permission to amend their statement of case.”

“In consideration for the aforesaid (hereafter the “New Agreement”), it is agreed that the New Agreement supersedes, nullifies, voids and replaces any and all previous agreements between PIAC, its directors, officers & employees and the Agent and/or anybody representing the Agent of any nature whatsoever and howsoever arising, and that henceforth the New Agreement shall constitute the sole, exclusive and entire agreement between PIAC and the Agent.”

“PIAC and the Agent agree that the only remuneration to which the Agent shall be entitled for the sale of any air transportation and/or ancillary services on behalf of PIAC shall be as set out in and according to the procedures of PIAC’s Statement of Practice effective from 16 October 2010 (the “General Arrangements”), together with any amount payable pursuant to the PIAC Agent Productivity Incentive Scheme 01 July to 31 December 2012 as set out in Appendix I (or any further incentive scheme agreed between the parties in writing hereafter).”

“Application of Pax Service Fee: • 7% YR will be automatically applied on Base Fare for tickets issued at PK counter. • Travel agents will be allowed to charge PSF up to 7% from Pax, which will not be reported in ASR/BSP report. Sale by PK Office in Net/Net Fare Market: • When pricing a Net fare itinerary, system will automatically charge 7% of the fare as PSF under the Head of ‘YR’ • In case of SOTO ticketing [i.e. “Sold Outside, Ticketed Outside, such as a ticket bought in England for a flight from France to Pakistan], 7% of the fare as PSF under the Head of ‘YR’ will be charged. Sale by Travel agents in Net/Net Fare Market: • When pricing any Net/Net fares itinerary, Travel agents will be allowed to charge their Passenger/Agency Service Fee up to 7% of base fare. • In case of SOTO ticketing, Travel agents will be allowed to charge their Passenger/Agency Service Fee up to 7% of base fare. In both the above scenarios, the PSF will not be reflected in the BSP report. However, agent will issue a travel itinerary/receipt to passenger, reflecting the total amount charged for the itinerary from the passenger.”

“The facts of the case are simple. On the ticket issued to the plaintiff's agent there was a statement in plain terms that it was issued subject to conditions which would be found on the back, and on the back there is a plain statement indicating where the conditions subject to which the ticket was issued were to be found. In these circumstances (the notice on the ticket not being tricky or illusory) it seems to me that there is no room for any evidence that the company had not done all that was reasonably necessary as a matter of ordinary practice to call attention to the conditions upon which the ticket was issued. If there were a condition which was unreasonable to the knowledge of the company tendering the ticket I do not think the passenger would be bound.”

“Pursuant to Clause 9 of IATA Resolution 824, PIAC may notify the Agent from time to time of the manner and amount of remuneration for the sale of air transportation and ancillary services and such remuneration shall constitute full compensation for the -services rendered to PIAC by the Agent.” (2) Clause 5 of the 2012 Agreement is set out in [91] above. (3) Paragraph 9 of IATA 824, headed “REMUNERATION”, provides: “for the sale of air transportation and ancillary services by the Agent under this Agreement the Carrier shall remunerate the Agent in a manner and amount as may be stated from time to time and communicated to the Agent by the Carrier. Such remuneration shall constitute full compensation for the services rendered to the Carrier.”

“If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence. The manufacture of a five-pronged implement for manual digging results in a fork even if the manufacturer … insists that he intended to make and has made a spade.”