A bolt out of the blue – another winning strike for delayed flight claimants

Tue, 15 Mar 2016

In January, there was yet another twist in the plot of the ever-developing law regarding delayed flights.  This time it came from Her Honour Judge Melissa Clarke, sitting at Luton County Court, in the matter of Evans v Monarch Airlines.


Two passengers had brought a claim in reliance upon Regulation 261/2004, for compensation for a five hour delay in their flight returning from Egypt, caused by lightning strikes.  

The aircraft that was scheduled to fly the claimants home had arrived in Gatwick from Nice on the morning of the return journey, the intention being that it would fly out to Hurgada and then return to Gatwick.  The aircraft was reportedly struck by lightning on take-off from Nice; on further inspection at Gatwick, this was found to be the case, and so the plane was grounded, causing knock on delays for the claimants, twiddling their thumbs in Hurgada.  Another plane was sent to the rescue, meaning that the claimants’ flight was 4 hours and 56 minutes late in departing from Hurgada.

HHJ Clarke upheld their claims, finding that lightning does not fall within the exception of “extraordinary circumstances” that would allow the airline to avoid liability.  The claimants were awarded £450 each for the delay to their journey.

Regulation 261

Regulation 261 provides a framework which entitles passengers to obtain assistance when flights are delayed (Art. 6), and compensation when flights are cancelled (Art. 5).  Article 7(1) of Regulation 261 sets out the levels of compensation payable to a passenger who suffers a cancellation in their flight; this has long been understood to apply equally to passengers of delayed flights.

Art 5(3) provides an exemption whereby airlines may escape liability under Art 7, and states:

An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.’ 

There is, however, no exhaustive list of what constitutes “extraordinary circumstances”.  This definition has, understandably, been the subject of much case-law over the years: the lead case regarding the interpretation of “extraordinary circumstances” was, until fairly recently, Wallentin, in which it was decided that:

…the fact remains that the circumstances surrounding such an event can be characterised as “extraordinary” within the meaning of Article 5(3)…only if they relate to an event which, like those listed in recital 14 in the preamble to that regulation, is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin.

The Court of Justice of the European Union (CJEU) went on to say that the frequency of circumstances is “not in itself a factor from which the presence or absence of extraordinary circumstances could be concluded…[it may be] indicative, but not determinative, and something to be weighted in the balance”.

In Evans, the airline attempted to argue that the delay was caused by an unexpected flight safety shortcoming, namely damage arising from the lightning strike, and that this fell under the umbrella of “extraordinary circumstances”.

Evans First Instance

None of the facts in the case were disputed.  The only question for the District Judge was “was the delay caused by extraordinary circumstances?”.  The burden of proof fell to the airline in attempting to rely on the Art 5(3) exemption.  The District Judge held that “[i]t matters not whether the metal object is regularly or rarely struck by lightning,…The issue is whether it is reasonably likely to be struck by lightning in the ordinary course of operations.”  

The Judge went on to conclude that he was “satisfied on a basic interpretation of the case law and regulations that it is an event which is inherent in the normal exercise of the activity of the air carrier concerned”.  He therefore rejected Monarch’s defence and upheld the claims.

Evans Appeal 

HHJ Clarke found that the District Judge had been wrong in law, and misdirected himself in stating that the issue was “whether [the aircraft] is reasonably likely to be struck by lightning”.  However, this did not mean that the District Judge was wrong in his decision to uphold the claim.  

The Circuit Judge upheld the decision of the lower court, dismissing the airline’s appeal.  HHJ Clarke found that “damages caused by a lightning strike may well be an unexpected flight safety shortcoming, but that does not make it an exceptional circumstance”.

The Circuit Judge founded her decision on five points (at para 35):

  1. 1.    Lightning strikes are “one of the problems that air carriers are confronted with as a matter of course in the normal exercise of their activity”;
  2. 2.    She rejected the submission that lightning strikes were out of the ordinary, reminding herself of Lord Elias’ warning to avoid making “an event extraordinary which in common sense terms is perfectly ordinary”;
  3. 3.    She gave Art 5(3) a strict interpretation;
  4. 4.    She rejected the appellant’s submission that she could rely on the Civil Aviation Authority’s “List of Extraordinary Circumstances” given that it was not in any way legally binding;
  5. 5.    The Judge found that, just because lightning created and unexpected flight safety shortcoming, that does not itself automatically equate to a finding of extraordinary circumstances.

This latest decision compounds the message sent time and again from the courts to airlines, that Regulation 261 provides great protection for aggrieved passengers, with very little room for airlines to escape liability.  HHJ Clarke’s judgment is potentially open to criticism, and we will be waiting to see whether Monarch have an appetite for appeal.

This article was written by Naomi Owen, click here to view Naomi's profile.

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