WORDS IAN SKUSE
LEGAL
ATC DEL AYS ARE E XTRAORDINARY!
The Court of Appeal has rejected compensation claims for delays if they result from an air traffic control message
T
HE COURT OF APPEAL HAS delivered a long-awaited judgement relating to compensation claims for flight delays arising from
an air traffic control (ATC) decision. The trial judge in Oxford found that the delay was due to extraordinary circumstances resulting from an ATC message from Gatwick, due to thunderstorms, which had forbidden all eastbound flights from the Sussex airport. The District Judge in Oxford had found that Gatwick ATC was not under the control of easyJet and that the delay could not have been avoided even if easyJet had taken all reasonable measures. A further appeal on 29 September 2017 dismissed the appeal by the passenger on the basis that recital 15 of EU Regulation 261/2004 (which deals with compensation claims for flight delays) states that extraordinary circumstances should be deemed to exist (and the airline will not be liable for flight delay compensation) where the delay arises from the impact from an air traffic management decision in relation to a particular aircraft on a particular day. No compensation for the flight delay was payable. The
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passenger was given permission to appeal to the Court of Appeal which was determined on 6 February 2019.
THE ARGUMENTS On behalf of the passenger, it was argued that the Court should take account of the underlying reason behind the air traffic management message – in this case thunderstorms. By themselves, thunderstorms were not “extraordinary” and it was argued that a mere fact that the thunderstorms resulted in an ATC message could not elevate the circumstances to being extraordinary. In his judgement, Lord
Justice Coulson in the Court of Appeal firmly rejected the passenger’s arguments. The easyJet aircraft did not take off at the correct time because its flight had been prevented by Gatwick ATC, which had forbidden all eastbound flights. It would have been
unlawful and unsafe for the aircraft to ignore that prohibition and endeavour to take off. That ATC decision
CLAIMS FOR
DELAY CAUSED BY ATC MESSAGES WILL NOW HAVE LITTLE PROSPECT OF SUCCESS
was not inherent in easyJet’s normal activity as it was the independent decision of a third party over which easyJet had no control and formed no part of easyJet’s own activities. The fact that the underlying cause of the ATC message might be thunderstorms was irrelevant and it was not for the Court to go behind the reason why the message had been made.
FUTURE EU 261/2004 CLAIMS Following this judgement, a further appeal to the European Court was rejected. However, thousands of passengers whose claims and legal cases have been stayed pending the outcome of this case will be dismissed. Claims for delay caused by ATC messages will now have little prospect of success unless the passenger can show that the airline did not take all reasonable measures to avoid the delay.
The current state of the law is that the underlying causes of the ATC message are irrelevant and carriers can defend these cases on the ground that such events should be deemed to be extraordinary. This appears
to be a sensible and realistic interpretation of EU 261/2004. Public policy should be on
the side of safety rather than driving further claims for compensation for unavoidable flight delays.
Ian Skuse is a partner in Blake Morgan’s travel team (
blakemorgan.co.uk) He welcomes your feedback:
ian.skuse@
blakemorgan.co.uk
2019 MARCH/APRIL 133
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