Wegener rules: a “single booking” cuts both ways
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In a helpful decision for non-UK airlines, the English Court of Appeal has confirmed that where a flight operated by a non-UK carrier is delayed departing the UK, passengers holding through reservations starting and ending outside the UK do not have a claim under Regulation 261[1].
Chelluri v Air-India Limited, Court of Appeal 21 December 2021
The passenger was booked on a single reservation from Kansas City to London via Detroit, on Delta Airlines, and then, on Air-India, from London to Bengalaru via Mumbai. The Air-India sector departing London was delayed by some 48 hours with a commensurate delay on arrival at the final destination in India.
On the face of it, a delay on departure from the UK would suggest that the passenger fell within the scope of Article 3.1(a) of Regulation 261 as now applied in the UK. At first instance the Judge decided, in September 2020, that the flights on Delta and Air-India were separate flights and on that basis allowed the claim.
The first appeal in January 2021 overturned that, ruling that the overall journey from Kansas City to Bengalaru was made under a single booking, and following the reasoning in Wegener v Royal Air Maroc[2], dismissed the claim as the passenger had made a single booking with a non-EU carrier for a flight starting and ending outside the EU.
On 21 December 2021[3] the Court of Appeal dismissed the passenger’s appeal. The conclusion that the subject reservation was a “single booking” was no longer challenged before the Court of Appeal. Given the impact of a single booking, the judgment reviewed the relevant authorities to determine whether Wegener was good law and binding on the English Courts. Where there is a delay to a sector outside the EU operated by a non-EU carrier, the airline cannot avoid Regulation 261 exposure if that sector was supposed to connect directly with a sector departing the EU. So too, a passenger cannot invoke rights under Regulation 261 with respect to a series of flights only one of which touches the EU if the flights covered by the booking as a whole are not within the scope. Wegener was key to jurisdiction, rather than to compensation.
We have written in the past on cases addressing various permutations of flights to, from or through the UK or the EU which may or not be subject to Regulation 261 by reference to the point of origin, the nationality of the carrier, the existence of codeshare arrangements and whether or not the relevant reservations amounted to a single booking or multiple flights. This decision fills in another of the permutations which has not so far been directly addressed.
There are as yet few UK decisions on Regulation 261 as it applies after Brexit. We covered two of the early cases in our report in May last year. In Lipton v BA City Flyer[4], the Court of Appeal referred to the ability of the English Courts to depart from EU retained law where they consider it “right to do so”. In Air-India v Chelluri, the Court of Appeal went further, affirming that departures from decisions of the CJEU will be rare. Citing Tunein Inc v Warner Music UK Limited[5], the Court of Appeal emphasised that the power to depart from CJEU case law should only be exercised “rarely and sparingly” and on the same basis that the Supreme Court could depart from its own precedents. The Court of Appeal concluded that the same logic applied to Ms Chelluri’s case.
The doctrine and importance of a “single booking” is not something that is addressed directly in Regulation 261. It has been developed by the courts in England and the CJEU to enable the limited provisions in Regulation 261 on connecting flights to function effectively. In this instance the Court of Appeal has not only applied the doctrine rigorously in favour of the airline but has also given a further clear indication that the English courts will continue to follow existing CJEU case law on the subject.
The final point should be seen in the context of discussion of passenger rights at the first meeting of the Specialised Committee on Air Transport under the EU-UK Trade and Cooperation Agreement, which was held in mid-October 2021[6]. The UK noted that while Regulation 261 continues to be applied it is under assessment and this may change in the future. The parties are to continue to exchange information on passenger complaints. There is no indication as yet of how the parties will address any issues over amendment to passenger protection law, bearing in mind the commitments in the TCA to a high level of consumer protection and to consult on any changes.
See below for additional recent case reports on Regulation 261:
Airline Liability Roundup: Montreal Convention and Regulation 261/2004 (twobirds.com)
For further aviation disputes related know how please click here to access Disputes+, Bird & Bird’s international dispute resolution know how portal.
[1] Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights as amended by the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019, SI 2019/278
[2]CJEU Case 537/17, [2018] Bus LR 1366, [2019] C.E.C. 632
[3] [2021] EWCA Civ 1953
[4] [2021] EWCA Civ 454, [2021] 1 WLR 2545
[5] [2021] EWCA Civ 441
[6] The minutes were released on 13 December 2021
