Regulation 261: Case Law Update

Blanche v easyJet [2019] EWCA Civ 69

In its judgment of 6 February 2019, the English Court of Appeal upheld two previous County Court decisions dismissing a claim brought by Mr Blanche for compensation for delay under Regulation 261. In October 2014 Mr Blanche's flight from Brussels to London Gatwick was delayed by almost six hours as a result of a decision made by Gatwick Air Traffic Control to suspend eastbound departures out of Gatwick due to thunderstorms. This decision meant that the aircraft, which should have taken Mr Blanche from Brussels to Gatwick, was delayed in arriving into Brussels.

Regulation 261 does not contain a definition of "extraordinary circumstances". However the Court of Appeal, in dismissing the appeal, held that Recital 15 of the Regulation "could not be clearer" in stating that "extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular day gives rise to long delay…even though all reasonable measures had been taken by the air carrier…". The importance of taking "all reasonable measures" was underscored in the judgment: to rely on air traffic management decisions (ATMDs), air carriers are required to show that all reasonable measures are taken to avoid the delay caused as a result of taking the ATMD. As no operative provisions of the Regulation expressly deal with this particular cause for delay, Coulson LJ found the answer to the appeal could be found in this Recital. He explained in his judgment that the "paramount importance of safety considerations explains the significance that Recital 15 ascribes to ATMDs" to the extent that "any issue of safety, which would in turn require an ATMD, takes the situation out of the ordinary." In addition, when making a determination as to whether extraordinary circumstances exist, the court was not willing to look into the reasons the air traffic decision was made.

Bott & Co v Ryanair [2019] EWCA Civ 143

In 2016 Ryanair introduced a term at clause 15.2 of its General Terms & Conditions of Carriage which requires passengers to contact the airline in the first instance when bringing a claim before engaging third party claims handling companies ("Article 15.2"). Bott & Co ("Bott"), a firm which routinely brings compensation claims on behalf of Ryanair passengers, brought a claim in the High Court claiming that it had a solicitor's equitable lien over compensation that Ryanair was paying directly to passengers on whose behalf Bott had submitted a compensation claim. This prevented Bott from deducting the relevant fee for their service from the compensation amount and required that they actively pursue their fee from clients following the payment of the compensation, resulting in a lower percentage of fees recovered. Bott also argued that Article 15 was unfair to passengers under Article 3 of the Unfair Contract Terms Directive. As we noted in our commentary on July 2018 on the High Court decision, the claim was dismissed and Bott appealed to the Court of Appeal.

In its judgment of 12 February 2019, the Court of Appeal agreed with the High Court on the basis that submitting a claim for compensation under Regulation 261 is "largely mechanical and formulaic" and as a result the services of third party claims handling companies should not be considered "litigation services". In addition, the Court of Appeal rejected that Article 15.2 is unfair as it merely sets out a procedure for handling compensation claims, and does so in a way which enables a claim to be filed by a passenger with minimum effort.