LEGAL IAN SKUSE
A VICTORY FOR PASSENGER POWER?
THE RESULT OF THE HUZAR v
JET2.COM APPEAL MAY HAVE WIDESPREAD CONSEQUENCES FOR THE INDUSTRY
M
ay 2014 was a busy time for passenger rights
regulation in the Court of Appeal, arising from EU Regulation 261/2004. These are the regulations establishing rules on compensation and assistance to passengers in the event of denied boarding, and delayed or cancelled flights. Airlines are not obliged to pay up if they can show that “the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”. Airlines have argued that serious technical faults which cause a delay or a cancellation should amount to “extraordinary circumstances”. This led to the court considering these issues in Huzar v
Jet2.com, with the Court of Appeal judgment being given finally on June 11, 2014.
The earlier judgment was
Wallentin v Alitalia, which made clear that only those technical faults “that are
BUYINGBUSINESSTRAVEL.COM
not inherent in the normal exercise of the activity of the carrier concerned and are beyond the actual control of that carrier on account of its nature or origin” can be used in the “extraordinary circumstances” defence. The carrier still has to show that it took all reasonable measures to avoid these circumstances leading to the delay or cancellation of the flight. The Court of Appeal
carefully considered the criteria of the Wallentin decision and, in its judgment, held that the circumstances of any technical breakdown had to be out of the ordinary. Difficult technical problems arose as a matter course in the ordinary operation of the airlines. Some defects may be foreseeable, but all defects can be described as inherent in the “normal exercise of the carrier’s activity”. As a result of this decision, airlines will find it extremely difficult to avoid payments to passengers under the regulation where delays are caused by technical faults with the aircraft.
It was not only the Huzar case that resulted in an
Airlines will find it extremely difficult to avoid payments to
passengers under the regulation
appeal in May 2014. The Court of Appeal also heard the case of Dawson v Thomson Airways Limited. This case also concerned the implementation of Regulation 261/2004. Currently, claims for compensation under the regulation can go back as far as six years in the English and Welsh courts (with different limitation periods in other EU countries). This case concerned the carrier arguing that across all jurisdictions – including under English law – the time limit to bring a claim should be limited to two years,
as international carriage is governed by the Montreal Convention. Currently, many claimants and their advisers are “forum shopping” and seeking to bring claims in the English courts, where in their home state, the limitation period is much shorter. The airline sector will be eagerly awaiting this judgment. For both categories of claims (technical defects causing flight delays and claims more than two years old), many of those that are current have been stayed pending the outcome of these decisions.
BUYER AWARE Many travel websites will fall within the new rules set out in the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, particularly when these relate to contracts
concluded at a distance by electronic means (typically a consumer-facing website). The new regulations
require the trader to make the consumer aware in a clear and prominent way where there is any obligation to make payment when the consumer places an order. This can be achieved by the consumer being obliged to press a button prominently labelled “order with obligation to pay” or “pay now”. Websites will need to adapt swiftly to the new regime, which came into force on June 13, 2014.
BBT JULY/AUGUST 2014 89
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92