High Court boosts flight delay claims as Supreme Court hears Bott case

Air Canada: Liable to pay compensation

The High Court has given yet another boost to flight delay practices after ruling that a passenger who boarded in London but suffered a delay on the connecting leg of her flight in Canada was entitled to compensation.

It comes as the Supreme Court today considers a controversial ruling that a law firm handling uncontested flight delay claims was not conducting litigation and so did not have an equitable lien over the compensation.

In Varano v Air Canada [2021] EWHC 1336 (QB), Marjolyn Varano flew with Air Canada from London to Toronto and then onwards to Austin, Texas. There were no issues with the first flight, but the second leg was delayed by nearly six hours.

EU flight compensation rules (EU Regulation 261/2004) have been adopted into domestic law post Brexit, but Air Canada argued that, as the disrupted flight in question was outside of the EU, the rules did not apply and Ms Varano could not claim the €600 due under the regulation.

Sitting as a deputy High Court judge, Geraint Webb QC disagreed. He found that Regulation 261 “imposed a contingent liability on Air Canada when it operated the flight from Heathrow, namely a liability to pay compensation to Ms Varano if she experienced relevant delay in respect of arrival at the final destination…

“Contrary to the submissions of Air Canada, the existing case law has held that such an interpretation of Regulation 261 is not precluded by the territoriality principle.”

The contingent liability was imposed when the airline was within the jurisdiction, irrespective of its nationality or where the delay was caused.

The case was brought by Hampshire law firm Hayward Baker, which in March also won a Court of Appeal ruling that the captain’s non-attendance due to illness did not amount to the “extraordinary circumstance” defence under Regulation 261.

Separately, the European Court of Justice ruled in March that airlines still have to compensate passengers whose flights are cancelled or delayed by more than three hours where the disruption was caused by a union-led workers strike.

The Supreme Court is today hearing Cheshire firm Bott & Co’s appeal against the Court of Appeal’s decision in its claim against Ryanair, which was criticised for not giving solicitors credit for being more business-like and efficient.

The case concerned Ryanair dealing directly with the law firm’s clients, including paying them compensation.

Bott & Co has led the market in developing a flight delay practice. The process is largely automated unless the airline disputes the claim.

The court said the firm was not conducting litigation when the claims were not contested, and so did not have an equitable lien over the compensation. The court said 30% of clients did not pass on the fees due to Bott.

Nick Bacon QC, representing Bott & Co, told the Supreme Court that a solicitor using technology should be treated the same as a “more sedentary” solicitor in the Home Counties using a typewriter.

He went on: “Litigation is heading towards platform-based resolution and the law shouldn’t be concerned by the ease with which the recoveries may be made… Has there been legal input which has resulted in the recovery? That should be the focus.”

The Supreme Court granted permission so it could consider what the limits were to the principle set out in Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd [2018] UKSC 21, under which a solicitor can ask the court to grant an equitable lien in order to protect their entitlement to fees as against their client.

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