Disgruntled passengers will be soaring on Cloud Nine following latest decision by the Supreme Court

Fri, 07 Nov 2014

On 31 October, the Supreme Court handed down its decisions regarding two applications for leave to appeal by air carriers Thomson and Jet 2.  The catalyst cases have led to a significant amount of public interest given the implications for passengers and airlines alike; many cases have been stayed pending the outcome of these applications in recent months.  Both cases relate to complaints brought by unhappy passengers following delayed flights for which they sought redress pursuant to the Denied Boarding Regulations 2004 (EC Regulation 261/2004).

(1)   Jet2.com Limited (Appellant) v Huzar (Respondent)

This case dealt with the issue of whether technical faults may properly fall within the scope of “extraordinary circumstances” so as to allow carriers to avoid liability for delays.

Pursuant to Regulation 261, carriers may successfully defend claims if it can be proven that the cancellation/delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken – Article 5(3) of Regulation 261, expanded to cover delays by Christopher Sturgeon and Ors v Condor Flugdienst GmbH (C-402/07); Stefan Bock and Anr v Air France SA (C-432/07) [2010] BusLR 1206 (ECJ).

Mr Huzar won his appeal to the Court of Appeal, which held that a technical fault with an airplane was by definition foreseeable and inherent, and did not amount to “extraordinary circumstances”.  In other words, carriers may no longer attempt to escape liability by arguing that a delay was caused by a technical fault.  Given Friday’s outcome, the decision of the Court of Appeal stands as precedent for technical fault cases – the decision can be found at http://www.bailii.org/ew/cases/EWCA/Civ/2014/791.html

(2)  Thomson Airways Limited (Appellant) v Dawson (Respondent)

In this matter, Mr Dawson won his appeal to the Court of Appeal, which dealt with the conflict between domestic legislation (the Limitation Act 1980) giving claimant passengers 6 years to bring a claim, and the Montreal Convention, which provided for a limitation period of 2 years.  The Court of Appeal held that the 6 year limitation period is the correct time frame for complaints brought under Regulation 261. 

Due to the potential number of claims that could come forth dating back 6 years, Thomson sought leave to appeal the decision, but evidently was unsuccessful – the Court of Appeal decision therefore is the leading case on this issue – the decision may be found at http://www.bailii.org/ew/cases/EWCA/Civ/2014/845.html

Both cases are landmark decisions and hold significant implications for passengers and carriers alike.  It is thought that the refusal of the applications for permission to appeal will lead to millions of claims being pursued by discontented passengers, leading to the carriers having to make substantial payouts for flights that were either delayed or cancelled.

The Supreme Court's Order reads as follows:

"The Court ordered that permission to appeal be refused in Thomson because the application does not raise an arguable point of law; [and] permission to appeal be refused in Jet2.com because the application does not raise a point of law of general public importance and, in relation to the point of European Union law said to be raised by or in response to the application, it is not necessary to request the Court of Justice to give any ruling, because the Court's existing jurisprudence already provides sufficient answer."

Written By Naomi Owen

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