21st Jun 2021 | Articles

Daniel Black writes for the New Law Journal, where he discusses the approach to balancing the interests of airlines with compensation claims for consumers in Turbulent times?

Under Regulation (EC) 2547 No 261/2004 (the Regulation) passengers whose flight is cancelled or is sufficiently delayed are entitled to statutory compensation. It is a necessary but not sufficient (more on which later) condition for an airline to escape the default position of paying-out that the cancellation (or qualifying delay—being a delay amounting to at least three hours on arrival) was caused by ‘extraordinary circumstances’. As well as considering this issue, the case of Lipton v BA City Flyer [2021] EWCA Civ 454, [2021] All ER (D) 129 (Mar) is additionally of importance in confirming that the Regulation is part of UK law after Brexit (albeit in an altered form), and because of Lord Justice Green’s analysis of the operation and interpretation of EU derived Law post-Brexit at [51]-[84]. For all involved in the legal world, the judgment is essential reading.

The appellants suffered the misfortune of a cancelled flight. The only evidence for why this befell them was that the captain had ‘an illness’ and was declared not fit to fly. The respondent—victorious twice below—maintained that because he became ill off-duty then an extraordinary circumstance was made out. To this the appellants said simply: it can’t matter when the captain became ill, his non-attendance on the basis of illness is not extraordinary.

For six reasons the Court of Appeal agreed with the respondents. A captain’s illness is not an extraordinary circumstance. Respectfully, it is suggested that this conclusion is undesirable and not compelled by authority. Were it appealed to the Supreme Court, it should be overturned. Their lordships’ reasoning, and the reasons for respectful disagreement, are set out below.

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