Flight Delay – Exceptional Circumstances or Unfortunate Ones?

Having read my colleague Jasraj Sanghera’s excellent article on flight delay and cancellation claims, I found myself remembering the times during lockdown when I’d have given anything to be on a delayed flight, as it would have meant I had left the house! Now life seems to be slowly returning to normal we can begin to look forward to holidays abroad, and I am sure I will think less fondly of delayed flights should my first trip away involve any such delay. I was also reminded of my time spent as a County Court advocate before joining Chambers, during which I was instructed on a number of such claims, and I thought it might be beneficial to add some details of the case law that I routinely relied upon to assist claimants in their quest for compensation.

As mentioned by Jasraj, the legal framework for such claims has changed as a result of Brexit, but such changes are largely in name alone. The Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019 have incorporated the pre-existing EU Regulation (EC) 261/2004 into UK law. For the consumer the most relevant amendment is perhaps that compensation is payable in pounds sterling rather than Euros. The amounts are set out in the table below.

• £220 for all flights of 1500 kilometres or less;
• £350 for all flights between 1500 and 3500 kilometres;
• £520 for all flights not falling under (a) or (b).

Of course, whether this represents a better or a worse settlement will depend on the exchange rate at any given time.

In addition to the continuity of the legal framework, all case law of the Court of Justice of the European Union made on or before 31 December 2020 in relation to EU Regulation 261 will also continue to apply in the UK. However, judgements of the European Court made after 31 December 2020 will not. Consequently, UK caselaw will inevitably develop differently to that of the EU. By way of bidding a fond farewell to the CJEU, and as mentioned above, I thought it might be useful to set out some of the relevant case law to assist those seeking compensation for their delayed or cancelled flights, as it currently stands. I do not intend to rehearse the statutory framework, as Jasraj has already done an admirable job of this. Instead, I will focus exclusively on some of the case law relevant to the regulations engaged in flight compensation claims.

The Claimant’s Case

In setting out the Claimant’s case, it is very common to see a boarding pass or check-in information exhibited. Rarely will those representing the Defendant airline take issue with a failure to adduce this evidence and it is very often accepted on their part that the Claimant was on or was going to be on the flight in issue. However, should the Defendant claim that the Claimant has failed to satisfy the criteria of 3(2) by not exhibiting a boarding pass or check-in information, the case of LC and MD v easyJet Airline Co. Ltd (C-756/18) comes to the Claimant’s rescue. In this case the European court made clear at paragraph 34 that,

“passengers on a flight with a delay of 3 hours or more on arrival who have a confirmed reservation on that flight cannot be denied compensation under that regulation solely on the ground that, upon claiming compensation, they failed to prove that they were present for check-in for that flight, in particular by means of a boarding card, unless it can be established that those passengers were not transported on the delayed flight at issue.”

As such, any suggestion that the failure to exhibit such information must be a fatal flaw in the claim can be resisted in accordance with the existing case law.

Extraordinary Circumstances

Recitals 14 and 15 of the regulations set out some examples of circumstances which may be extraordinary. Whether or not these circumstances will be “extraordinary” for the purposes of the regulations will be fact specific, but the case law gives some guidance on many of the common situations put forward by airlines in their defences to such claims.

• Mechanical Issues

Mechanical issues are often relied on as “unexpected flight safety shortcomings” by airlines seeking to demonstrate exceptional circumstances. However, the CJEU found in Wallentin-Hermann v Alitalia–Linee Aeree Italiane SpAC-597/07 that mechanical issues do not automatically give rise to such a defence. At paragraphs 24 and 25 of this judgement the court made clear that pre-flight checks are “part and parcel” of the operations of an air carrier and that mechanical issues discovered in the course of such checks are inherent to the activity of providing services as an air carrier:

“carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise. It is moreover in order to avoid such problems and to take precautions against incidents compromising flight safety that those aircraft are subject to regular checks which are particularly strict, and which are part and parcel of the standard operating conditions of air transport undertakings. The resolution of a technical problem caused by failure to maintain an aircraft must therefore be regarded as inherent in the normal exercise of an air carrier’s activity.

Consequently, technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance cannot constitute, in themselves, ‘extraordinary circumstances’ under Article 5(3) of Regulation No 261/2004.”

This approach was reiterated in the case of van der Lans v Koninklijke Luchtvaart Maatschappij NV (Case C-257/14), in which the court made clear that “air carriers are confronted as a matter of course in the exercise of their activity with such problems”.

This logic was also applied to a situation where damage to an aircraft was caused by the presence of a foreign object on the runway. In HHJ Platts decision in the matter of Hawdon & Walker v Thomas Cook (County Court Appeal). It was found that “the runway/taxi area at an airport is indispensable to air passenger transport”. Please note that this case differs from the CJEU case of Moens v Ryanair (Case C-159/18), where a petrol spill on the runway was considered to be exceptional circumstances, and perhaps gives an indication of the differing approach that might be taken by UK courts post-Brexit.

• Adverse Weather Conditions

The case that is most helpful for claimants when adverse weather conditions are relied on by air carriers is Jet2 v Huzar [2014] EWCA Civ 791. Here the Court of Appeal made clear that, as per the paragraph above, technical problems are not to be considered as extraordinary circumstances, but it also gave guidance on weather conditions. For these to be relied on the court opined that they must be “freak weather conditions”. Think here volcanic ash cloud rather than a thunderstorm.

This was considered further in the County Court case of Denobo v British Airways Plc, were the District Judge held at paragraph 31 that,

“general vicissitudes of weather per se should be properly regarded as intrinsic to normal operations”.

Indeed, the judgment goes further, stating that,

“to have the potential to be regarded as extraordinary circumstances, then the element of “freakishness” should be present such that they might be properly regarded as “out of the ordinary”.

The County Court Appeal cases of Monarch Airlines v Evans and Lee and Tsang v Ryanair found respectively that lightening strikes and electrical storms are both confronted as a matter of course in the normal exercise of the activity of an air carrier.

Finally, when considering adverse weather conditions, it is important to remember that Recital 14 applies specifically to “the operation of the flight concerned”. Therefore, it should be questioned whether the weather conditions were relevant to the flight in issue or an earlier flight and any delay to the claimant was simply a knock-on effect. If the latter, then it could be argued that previous inclement weather on a preceding flight does not give rise to “extraordinary circumstances”.

Reasonable Measures

The conjunctive test of Article 5(3) requires the Defendant air carrier to demonstrate that there were not only exceptional circumstances but that no reasonable measures could have been taken to avoid the delay. Reasonable measures that an air carrier might be expected to produce evidence that they considered include:

• Alternative flights that passengers might have been placed on, including those provided by other carriers.
• The possibility of re-routing the flight.
• The provision of stand-by crew/aircraft.
• The provision of taxi or bus shuttle service to a nearby airport for boarding on an alternative flight.

In the County Court Appeal case of Fletcher v Ryanair HHJ Graham Wood QC made clear that the “airline must produce evidence of all reasonable measures.” It is not enough for the Defendant to simply state that these options were considered and then rejected as not being practicable.

Further, the CJEU case of Andrejs Eglitis, Edvards Tatnieks v Latvijas Republikas Ekonomikas ministrija (Case C-294/10) emphasises that such considerations should be made at the stage of planning a flight. Dealing with problems as they arise and trying to solve them on the hoof will not be sufficient to demonstrate that no reasonable measures could have been taken. The air carrier must,

“at the stage of organising the flight, take account of the risk of delay connected to the possible occurrence of extraordinary circumstances. More particularly, to prevent any delay, even insignificant, to which extraordinary circumstances have given rise inevitably leading to cancellation of the flight, the reasonable air carrier must organise its resources in good time to provide for some reserve time, so as to be able, if possible, to operate that flight once the extraordinary circumstances have come to an end. If, in such a situation, an air carrier does not, however, have any reserve time, it cannot be concluded that it has taken all reasonable measures”.

But what constitutes reasonable measures? The aforementioned case of Wallentin-Hermann v Alitalia–Linee Aeree Italiane SpAC-597/07 also gives guidance on this. In its judgment the court made clear that an air carrier

“must establish that, even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able – unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time – to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight.”

The important words here are “intolerable sacrifices”. If any reasonable measures were not taken because they would have been expensive, inconvenient or not cost-effective, this isn’t enough. While a judge will determine this on the facts of any particular case, the court’s decision to use the word “intolerable” should not be taken lightly.

Conclusion

This article is not intended to be a comprehensive review of the case law relevant to flight delay and cancellation claims. There is a breadth of material for consideration and the case law in this area will only expand as international travel hopefully picks up again as we move into 2022. I have given only a brief overview of some useful cases which can be used to combat the more frequently seen defences from air carriers.

The civil team at Becket Chambers are ready, willing and able to assist with these claims and if you or your client requires representation then please do not hesitate to contact us at clerks@becket-chambers.co.uk