Passenger claims: still worth fighting?

25 November 2015


EU Regulation 261/2004 provides for a right to compensation and assistance in cases of denied boarding, cancellation or long delay. Since the Regulation entered into force it was controversial and rejected by airlines. Today, after many judgments, including the UK Court of Appeal matter of Huzar v. Limited, and preliminary rulings by the Court of Justice of the  European Union, specifically recently in the the Dutch case in the Court of Amsterdam, referred to the CJEU, of van der Lans v. KLM and a matter referred by a German Court (Amtsgericht Russelsheim) in Siewert (& Ors) v. Condor, are the obligations of airlines are clear? 

The question now is whether claims for compensation should still be contested and is the answer to that question straightforward? 

The answer, it seems clear, is that by accepting claims which are unfounded may create an unreasonable expectation for consumers (and courts), which will inevitably lead to a further increase of claims and, therefore, cost to each and every airline.

The "extraordinary circumstances" defence

The only defence open to airlines against Regulation 261/2004 claims is whether the cause of the delay is, in fact, an "extraordinary circumstance" which could not have been avoided even if all reasonable measures had been taken. 

It has long been established that the "extraordinary circumstance" defence may only be applicable if, by its nature and origin, the circumstance is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond its actual control, the burden of proving the same of which lies with the airline. Nonetheless, each matter will turn on its own facts and, therefore, contesting each matter must be carried out on a case-by-case basis.

Technical defects and "extraordinary circumstances"‎

It seems well known thay most cancellations and delays are perhaps due technical issues with an aircraft which occur immediately prior to a flight. However, despite airlines complying with stringent and unequivocal maintenance regimes, it still cannot be assured that no technical issue will arise out of the blue, which it, and more specifically it's employees, are required to deal with on extremely short notice.

In this respect, case law now dictates (albeit without being explicit) that, essentially, if the delay is due to a technical defect, the defence of "extraordinary circumstances" shall not apply.

Indeed, further to the CJEU decision in van der Lans it seems there is little scope to defend delays, the cause of which are due to technical issues. 

So, is this the end?

The short answer is no! 

There are still parameters to be tested through the courts, specifically if the technical issue concerned may be considered a "hidden manufacturing defect", anaogous to the same, or perhaps the result of the "‎extraneous act of a third party", all of which may still be considered as extraordinary. As mentioned above, each matter is fact specific and should be assessed on those specific facts as to whether the "extraordinary circumstances" defence may apply.

Other "extraordinary circumstances"

In addition to the above, case law does accept that delays and cancellations which are caused by, for example (in the broadest terms and not limited to):

1. Hidden manufacturing defects (see above);
2. ATC strikes;
3. ATC decisions;
4. Adverse weather;
5. Bird strikes;
6. Lightning strikes;
7. Serious illness / injury;
8. Sabotage; and
9. Security issues.

may lead to complete exoneration of the airline. It is however, still a very factual assessment and there must also be consideration of other factors before deciding whether to continue to defend these claims, such a the proximity of the "extraordinary circumstance" to the flight delayed. 


Although passengers are now in a stronger position than perhaps in recent times, it is evident that it is still worth defending claims when "extraordinary circumstances" may genuinely exist and airlines should not be paying for delays and cancellations falling within this category and which are outside their control.‎