Summer 2021: The Summer of Delayed or Cancelled Flights, and Compensation Claims?

Holidays abroad… remember those? Most of us are looking forward to being able to go on holiday abroad again in the, hopefully, not too distant future. But holidays abroad aren’t all fun and sun. There can be unenjoyable aspects to travelling abroad. In particular, one unpleasant surprise can come when you get to your boarding gate, only to find that your flight has been delayed or cancelled. That news can bring a deflating feeling, but in certain circumstances it may be possible to get compensation for the delay or cancellation. This article will, in overview, consider the relevant regulations which govern delayed or cancelled flights within and between the UK and the EU, what rights passengers have and what remedies are available to them.

The Law

The law regulating flight delay and cancellation compensation claims first came through EU Regulation EC 261/2004 (“Regulation 261”, hereafter). Following the impending spectre of Brexit, the provisions of Regulation 261 were incorporated into UK domestic law through The Air Passenger Rights and Air Travel Organisers Licensing (Amendment) (EU Exit) Regulations 2019 (“APR”, hereafter). The APR has maintained and extended the provisions of Regulation 261.

Passenger’s Rights

Article 1 of Regulation 261 provides that passengers of airlines of qualifying flights have rights under the regulation when:

(a) they are denied boarding against their will;
(b) their flight is cancelled; and/ or
(c) their flight is delayed.

When one of those situations arises, in order for a passenger to be able to enforce their rights under the Regulation, Article 3(2) provides that they must have had a confirmed reservation on the relevant flight and that they must have presented themselves for check-in by the time stipulated by the air carrier, or where no time is stipulated then not later than 45 minutes before the published departure time of the flight.

If a passenger is faced with a cancelled flight, and they have not been informed of the cancellation within the time periods provided for by Article 5(1)(c), or if they are faced with a delay to which the provisions of Article 6(1) apply, then they may be entitled to compensation. Article 7 sets out the amounts of compensation that passengers may be entitled to.

When considering claiming compensation for delayed or cancelled flights, passengers tend to make a claim directly to the air carrier in the first instance. If the air carrier rejects this claim, then the passenger has the option of instituting court proceedings.

Court Proceedings

The passenger should bring their claim in the normal way, by way of Part 7 of the CPR. Due to the limits on the amount of compensation available, as set out in Article 7 of the Regulation, the claim is likely to be allocated to the Small Claims Track.

Where there are multiple passengers claiming in respect of delay or cancellation to the same flight, the Court may direct that the different claims should be determined in the same hearing. The parties will file and serve their evidence in the form of witness statements and supporting documents.

The Claimant’s Case

The Claimant must establish an entitlement to the compensation sought. This can be done by proving that the requirements of Article 3(2) are met. Namely, the Claimant must prove that they had a confirmed reservation on a qualifying flight and that they checked in, in time. Usually, the Court will accept a Witness Statement (with a signed Statement of Truth) which sets out those facts and exhibits copies of the passenger’s boarding pass or check in confirmation, as sufficient.

The Defendant’s Defence

Once the Court is satisfied that the Claimant has satisfied those requirements, then the burden switches to the Defendant airline carrier. Whether or not the Defendant has discharged their burden should always be considered in light of Recital 1, which provides that the Regulation aims to “ensure a high level of protection for passengers”.

The test that the Defendant must meet is provided for by Article 5(3). The Defendant must prove that “the [delay or] cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.

Article 5(3) is a conjunctive test which requires Defendants to establish, both, that:

(a) there were extraordinary circumstances which caused the delay or cancellation;
(b) and no reasonable measures could have been taken to avoid them.

Unsurprisingly, Article 5(3) has been the subject of a significant number of cases in both the CJEU and the domestic courts. What follows is by no means a comprehensive study of those cases and is intended to simply be a brief overview of the principles which the Court is likely to consider in respect of both limbs.

Extraordinary Circumstances

Recitals 14 and 15 provide a starting point as to what may amount to extraordinary circumstances. Recital 14 provides a non-exhaustive list of circumstances which may be considered as extraordinary, including political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier. Recital 15 goes on to provide that extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, even though all reasonable measures had been taken by the air carrier concerned to avoid the delay.

Overall, the Court will consider whether the circumstances are “by their nature or origin, inherent in the normal exercise of the air carrier concerned, and are outside that carrier’s actual control, with both conditions being cumulative” (Moens v Ryanair Case C-159/18).

Reasonable Measures

If the Defendant is able to establish that the delay was caused by extraordinary circumstances, then the Defendant must still satisfy the Court that it could not have been avoided had all reasonable measures been taken. This is a question of fact and the Court will look to what the measures the Defendant had at its disposal at the time.

The Hearing

In the Small Claims hearing, with a view to furthering the overriding objective, the Court may take the view that the Claimant has established their prima-facie case simply by virtue of their Witness Statement and accompanying exhibits. The focus of the hearing then immediately switches to the Defendant and the Defendant’s representative will be expected to make submissions as to why the Article 5(3) test is met. Following which, the Claimant’s representative will have the opportunity to make submissions as to why the test is not met.

If the Defendant satisfies the Court that the test is met, then the Claimant(s) will not be entitled to the compensation sought. If, however, the Defendant is unable to satisfy the Court that the test is met, the Claimant(s) should be entitled to the compensation sought.

Conclusion

We are all hoping that the possibility of going on holiday abroad returns sooner, rather than later. When this happens, it is likely that passengers will once again be faced with delayed and cancelled flights. And, with airline carriers more prepared to defend claims for compensation, both Claimants and Defendants should be prepared for Smalls Claims Trials as a means of determining whether compensation should be paid.
Finally, whilst it is likely that the future will bring an increase in claims in this area, as international travel picks up again, it is also important to remember that passengers are able to claim compensation for delayed or cancelled flights for up to six years from the date of the flight. Both parties should also, therefore, keep one eye on the past, as well as the future.

The Civil team at Becket Chambers can provide representation at Small Claims Trials in flight delay and cancellation claims. If you are a solicitor who specialises in this area, and you require such representation for your client(s), then please do not hesitate to contact our team at clerks@becket-chambers.co.uk.