This question has been brought into focus by the County Court decision in Huzar v Jet2.com, which Jet2.com is now seeking to appeal to the Court of Appeal.
The claim in Huzar arose from a flight from Malaga to Manchester. During the inbound flight to Malaga a technical problem occurred which was traced to defective wiring in the fuel valve circuit. A specialist engineer had to travel from the UK to fit replacement wiring. The return flight was delayed about 27 hours. It was common ground, however, that the failure was unexpected in that it occurred within the expected lifespan and could not have been predicted by regular inspection. It was "unexpected, unforeseen and unforeseeable".
At first instance the claim was dismissed by the District Judge on the basis of the defence under article 5(3) of Regulation 261 had been made out. On appeal to a Circuit Judge, the only issue was whether the first "extraordinary circumstances" limb of that test was satisfied. Despite the passages in the ECJ's judgment in Wallentin-Hermann v Alitalia that certain technical problems beyond the operator's control could found that defence, His Honour Judge Platts held that "delay caused by the resolution of an unexpected, unforeseen and unforeseeable technical problem cannot be said to be an extraordinary circumstance given the Wallentin test". Accordingly, he allowed the appeal.
Although the Huzar decision is not binding on other courts, it is of potential significance because other county courts may be inclined to adopt its ruling, and if followed it is difficult to see how a carrier could ever invoke an article 5(3) defence successfully in the case of delay or cancellation caused by a technical problem – if an unexpected, unforeseen and unforeseeable technical problem is insufficient, what technical problem could be sufficient?
To proceed, a second appeal requires permission of the Court of Appeal, which can only be granted if the case raises an important point of principle or practice that has not yet been determined. Jet2.com contends that this hurdle is satisfied for the reasons just given and because Huzar goes far beyond the law as stated by Wallentin-Hermman. As the Judge himself acknowledged, article 5(3) is of limited effect on the basis of his conclusion. A decision on Jet2.com’s application for permission to appeal is expected early this year. If so, we anticipate a Court of Appeal decision in the middle of 2014.
For more information contact Robin Springthorpe, Annabelle Wheeler, Nicola Fenton or Simon Phippard.