Appeal court ruling to reopen “thousands” of flight delay claims

The BA plane landed at London City Airport

The Court of Appeal has opened the way for “thousands” of flight delay claims after ruling that a pilot’s sickness just before a flight took off was not a reason to refuse compensation.

The solicitors who acted for the claimant in Lipton and another v BA City Flyer [2021] EWCA Civ 454 said airlines would have to reopen cases they had previously rejected as a result.

Lord Justice Coulson said that, without wishing to trivialise the pilot’s illness, the consumer’s right to compensation “cannot depend on when and where the member of staff ate the suspect prawn sandwich”.

Flight delay litigation has become a major industry for some law firms and the only way airlines can avoid making payments under EU law is by demonstrating that the cancellation was caused by ‘extraordinary circumstances’.

Coulson LJ said most of the claims were assigned to the small claims track, and the “vast bulk of them” should be capable of being determined on the papers.

“In those circumstances, it is contrary to the scheme of the regulation to allow the carrier to embark on a complex analysis of precisely when, why or how a staff member became ill so as to explain their absence and the subsequent cancellation of the flight.”

Coulson LJ went on: “In any event, there are obvious difficulties in identifying precisely when, why or how someone first falls ill.

“Is it when they first exhibit the symptoms? Or is it when they are first exposed to the infection? Why are they unwell? How has that happened?

“If a crew is on a particularly tight schedule, with a meal then a flight, then a rest and then a repeat for the return flight, how can it be safely worked out when, why or how the crew member actually fell ill, and whether that happened, as the respondent would have it, on their own time or the carrier’s time?”

Coulson LJ said the scheme set out in European Regulation (EC) 261/2004 was “not designed to investigate” those questions.

“Without wishing to trivialise the issue or the illness in this case (about which we have no details), I am of the view that the consumer’s right to compensation under the regulation cannot depend on when and where the member of staff ate the suspect prawn sandwich.”

The Court of Appeal heard that the claim involved a British Airways flight from Milan to London City Airport.

The captain reported feeling unwell when he was off duty, only an hour before the departure time. Coulson LJ said “no further information regarding the captain’s illness” was available.

An hour after departure time, the flight was cancelled. The appellants were booked onto another flight but arrived in London more than two and a half hours late.

Both Deputy District Judge Printer and His Honour Judge Iain Hughes rejected the claim because the pilot fell ill when he was off duty.

Since the illness was caused by a matter unrelated to the pilot’s work and beyond the control of the airline, the judges said the cancellation was due to extraordinary circumstances.

However, Coulson LJ found that the captain’s non-attendance for work due to illness “was inherent in the air carrier’s activity and operations” and was not an ‘extraordinary circumstance’.

He allowed the appeal and ordered the airline to compensate the appellants.

Lord Justice Green, who agreed with Coulson LJ, ruled that the regulation formed part of domestic law by virtue of the European Union (Withdrawal) Act 2018. Lord Justice Haddon-Cave agreed with both judgments.

Keith Hayward, co-founder and managing director of south coast law firm Hayward Baker, which acted for the claimant, said the decision “paves the way for thousands of cases to be reassessed by the airlines”.

He went on: “This is a victory for consumers and a victory for common sense. It has always been our firm belief that a crew member calling in sick could in no way be considered an event that was extraordinary.

“It is part and parcel of running any business and we are glad that the Court of Appeal has agreed with us and put this issue to bed once and for all.

“We invite the airlines to now take a look at their historic claims and pay the compensation owed to their passengers.”

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