Flight delays
and compensation
In the last few months, English Courts
have considered passengers’ rights
to compensation due to flight delays
in accordance with Regulation (EC)
Number 261/2004. This European
Regulation establishes the rules of
compensation and assistance to
passengers in the event of being denied
boarding, cancellation or long flight
delays. Cases of denied boarding and
cancellation are more straightforward;
however there have been many
controversies with long delays and in
particular, regarding its definition.
It was in 2009 that the Court of Justice
of the European Union clarified the
issue. In the decision of Sturgeon and
others, the court defined long delay
as a delay of more than three hours.
Passengers therefore could be entitled to
compensation if their flight was delayed
for over three hours.
Nonetheless, air carriers would still be able
to avoid compensation in those long flight
delays of over three hours if they could
prove extraordinary circumstances. The
meaning of extraordinary circumstances
was, however, ambiguous and there was
not a uniform interpretation.
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A decision of the Court of Appeal in the
case of Huzar v Jet2.com Limited was
published on 11th June 2014 and it has
considered the meaning of “extraordinary
circumstances” and clarified the term.
The case of Mr Huzar arose out of a
delay of 27 hours in a flight from Malaga
to Manchester. The air carrier alleged
that the delay was caused by a wiring
defect in the fuel valve circuit which they
claimed could not have been prevented,
despite prior maintenance or inspection.
The air carrier declared that the defect was
unexpected, unforeseen and unforeseeable
and, as such, it should be regarded as an
extraordinary circumstance. The District
Judge at the lower court agreed with the
air carrier and considered that there was
no right to compensation. On app eal at the
Manchester County Court, the judge held
that the defence did not apply and therefore
awarded compensation to the claimant.
The Court of Appeal considered the
allegations of both parties and reviewed
the latest European case law, in particular
the case of Wallentin-Hermann v Alitalia
[2009] and the case of McDonagh v
Ryanair Limited [2013].
cannot be characterised as inherent in the
normal activities of the carrier.
The Court considered the actual technical
defect in the aircraft which Mr Huzar was
going to travel. It decided that it was a
defect inherent in the normal activities of
the carrier and therefore, the extraordinary
circumstances defence would not apply,
and the carrier would not be relieved from
the obligation to pay compensation.
The case of Wallentin-Hermann v Alitalia
[2009] provided some guidelines of
the term “extraordinary” in the light of
technical problems with the aircraft.
The Court of Justice of the European
Union considered that it will not be
extraordinary circumstances unless the
technical problem stems from events
which are not inherent in the normal
exercise of the activity of the air carrier
and are beyond its actual control.
Mr McDonagh, the European court
observed that as a matter of everyday
language, extraordinary circumstances
are circumstances which are “out of the
ordinary”. The judge then referred to
the above mentioned case (Wallentin
case) and stated that extraordinary
circumstances “relate to all cases
which are beyond the control of the air
carrier, whatever the nature of those
circumstances or their gravity”.
As a consequence, article 5(3) of the
Regulation which provides for the
defence of extraordinary circumstances,
must be interpreted as meaning there
may be technical problems in the aircraft
which may lead to the cancellation/delay
of a flight which are not covered by the
concept of extraordinary circumstances
within the meaning of that provision,
unless that problem stems from events
which by their nature or origin are not
inherent in the normal exercise of the
activity of the air carrier concerned and
are beyond its actual control.
The Court of Appeal in the case of Huzar
held that when determining whether
a delay or cancellation was caused
by extraordinary circumstances, the
circumstances must be out of the ordinary.
To be out of the ordinary, it must come
from events which by the nature or origin
are not inherent in the normal exercise of
the activities of the air carrier concerned.
The Civil Aviation Authority has issued
some advice to air passengers following
this ruling. It states that airlines can only
allege technical faults as a reason for
not paying compensation if the fault was
originally caused by an event that was “out
of the ordinary”. Standard technical faults
such as a part on the aircraft failing before
departure will generally not be considered
extraordinary circumstances.
If therefore, the cause of the defect is one
which is inherent in the normal exercise
of the activity of the air carrier concerned,
then it necessarily follows that it is also
in the control of the carrier and therefore
not extraordinary. Events caused by acts
of third parties, such as terrorism, strikes
or air traffic control problems, or because
they result from freak weather conditions,
There is another decision which has
recently clarified some aspects of the
Regulation, in particular the limitation
period for the claims pursued under the
Regulation. The case of James Dawson v
Thomson Airways Ltd [2013] considered
whether a claim for compensation due
to delay will need to be made within
the two-year limitation period as per
Another case which the Court of Appeal
considered in the case of Huzar is
the European case of McDonagh v
Ryanair Limited [2013]. In the case of
the Montreal Convention, or a six-year
limitation period as per Section 9 of the
Limitation Act 1980, which provides that
an action to recover any sum recoverable
by virtue of any enactment must be
brought within six years.
Having considered previous decisions
of the Court of Justice of the European
Union which established that Regulation
261 falls outside the scope of the
Montreal Convention, the English Court
of Appeal decided that the six-year time
limit will prevail for these types of claims.
Unfortunately for the travel industry, the
number of claims which the air carriers
will receive following these decisions will
increase significantly, raising the already
existing financial difficulties of some
air carriers. What it is clear is that air
carriers will be open to pay compensation
for cancellation and delays for many
technical problems for which they may
have previously alleged extraordinary
circumstances and, in addition, the
claims can be made up to a period of up
to six years.
By Carmen Calvo-Couto
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