Daniel Blanche v Easyjet Airline Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lady Justice King,Sir Ernest Ryder |
| Judgment Date | 06 February 2019 |
| Neutral Citation | [2019] EWCA Civ 69 |
| Docket Number | Case No: B2/2017/2875 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 2019 |
[2019] EWCA Civ 69
THE SENIOR PRESIDENT OF TRIBUNALS
( Sir Ernest Ryder)
Lady Justice King
and
Lord Justice Coulson
Case No: B2/2017/2875
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Oxford Combined Court Centre
Her Honour Judge Melissa Clarke
B42YP030
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Taylor QC & Mr Ben Lynch (instructed by Bott & Co Solicitors) for the Appellant
Mr Akhil Shah QC & Mr Max Kasriel (instructed by Norton Rose Fulbright) for the Respondent
Hearing date: Thursday 17th January 2019
Approved Judgment
If this draft Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.
Introduction
This appeal concerns a claim for compensation due to a delayed flight, in circumstances where the respondent carrier asserts that the delay was due to the impact of an air traffic management decision (“ATMD”) and therefore amounted to “extraordinary circumstances” within the meaning of the relevant European Regulation, namely Regulation (EC) No.261/2004 (“the Regulation”). The claimant argues that the ATMD itself is of little or no consequence, and what matters is the underlying reason for the ATMD, and whether that can properly be characterised as an extraordinary circumstance. The appeal raises potentially important issues as to the rights of passengers and the liability of carriers where the flight delay is due to the impact of an ATMD.
Factual Background
The appellant/claimant was booked to travel on flight EZY8522 from Brussels to London Gatwick on 10 October 2014. The flight was to be operated by an aircraft bearing the registration number G-EZIN. The flight was scheduled to depart from Brussels at 17.45 and to arrive at London Gatwick at 18.55. The flight actually departed at 23.45 and arrived at 00.37, 5 hours and 42 minutes late.
Aircraft G-EZIN was scheduled to fly from London Gatwick to Brussels at 16.10. However, that afternoon there were thunderstorms east of Gatwick and Gatwick Air Traffic Control (“ATC”) suspended all eastbound departures.
At around 17.00 it appeared that the suspension would be lifted and, in anticipation of that event, at 17.22, G-EZIN taxied to the runway in preparation for the short flight to Brussels. But the ATC restrictions continued, and the aircraft eventually returned to the terminal at 19.35. Gatwick ATC did not give permission for the flight to depart to Brussels until 21.40. It is unclear precisely when it arrived in Brussels but, as previously noted, the appellant's flight did not depart until 23.45.
The evidence was that the decision by Gatwick ATC to suspend eastbound flights affected at least 24 flights, including G-EZIN.
The appellant commenced proceedings claiming compensation for delay in the Luton County Court, pursuant to the Regulation. On 21 September 2016, DJ Richard Clarke dismissed the claim on the basis that, because of the ATMD, the respondent had demonstrated that the delay was due to extraordinary circumstances. That conclusion was the subject of an appeal. The District Judge also found that Gatwick ATC was not under the control of the respondent, and that the delay could not have been avoided by the respondent even if all reasonable measures had been taken. Those conclusions have never been the subject of any appeal.
On 29 September 2017, in a careful reserved judgment, HHJ Melissa Clarke dismissed the appeal on the correct approach to extraordinary circumstances where there is an ATMD. She based her conclusions on the wording of the Regulation, and in particular Recital 15 (set out in detail in paragraph 11 below). The kernel of her decision can be found in paragraphs [32]–[33] and [37]–[38] as follows:
“32. In my judgment the wording of Recital 15 gives clear guidance to the interpretation of Article 5(3) that:
(1) it is a matter of fact for the court to determine whether ‘the impact of an air traffic management decision’ in relation to a particular aircraft on a particular day ‘gives rise’ to a long delay;
(2) if it does, then extraordinary circumstances should be deemed to exist, so long as all reasonable measures had been taken by the air carrier to avoid the delay.
33. Taking the natural meaning of the words of the Recital, it must, in my judgment, be interpreted to mean that where an ATC decision gives rise to a delay, the source or origin of the problem causing the delay is the ATC decision itself. It is the ‘impact’ of that decision which ‘gives rise to’ the delay. I find myself unable to stretch or strain the natural meaning of those words to reach an interpretation which supports the Appellant's contention that the source of the delay is instead the underlying circumstances leading to the ATC decision.
…
37. Both Counsel agree that this falls short of a statutory deeming provision, being found in a non-binding Recital, and I accept that is correct. However use of the word ‘should’, although not mandatory, is more prescriptive than ‘may’ for example, and it is the same word used in the closely followed guidance at the beginning of Recital 14: “ obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”. In my judgment, that deeming provision is equally powerful guidance that in circumstances where Recital 15 applies, the ATC decision is itself deemed to be ‘extraordinary circumstances’ for the purposes of Article 5(3), without any need for further consideration for the two-limb Wallentin-Hermann test of inherency and control.
38. I do not accept the Appellant's submissions that such an interpretation undermines the policy of the Regulation to compensate consumers. Those consumers are all passengers and passenger safety must be paramount. It ensures that ATC decisions remain beyond question by air carriers, who must follow them. It removes any tension between safety and the costs consequences of a long delay or cancellation arising from an ATC decision. It avoids an unbearably heavy burden on ATCs across Europe from having to explain and evidence the reasons for their decisions for the purposes of claims brought under the Regulation.”
On 29 November 2017, the appellant was given permission to appeal, principally on the basis that the appeal raised an important point about the extent to which the claimant could go behind an ATMD, and “the desirability of definitive guidance” on the issue.
The Regulation
The Regulation deals principally with flights that are cancelled. Article 5 provides as follows:
“1. In case of cancellation of a flight, the passengers concerned shall: ….
(c) have the right to compensation by the operating air carrier in accordance with Article 7…
3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.”
It is common ground that passengers who are subject to a delay of 3 hours or more are entitled under Articles 5(1) and 7 to claim compensation, subject to the defence in Article 5(3): see Sturgeon & Ors v Condor Flugdienst GmbH and Böck & Anr v Air France SA (joined cases C/402/07 and C/432/07) [2010] 2 All ER (Comm) 983.
The Regulation does not define “extraordinary circumstances”. However, assistance can be found in the Recitals to the Regulation. Thus:
(a) Recital 12 states that air carriers should inform passengers of cancellations in advance of the scheduled time of departure and offer re-routing, and a failure to do this should result in compensation “except when the cancellation occurs in extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.
(b) Recital 14 states that “as under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that effect the operation of an operating air carrier”.
(c) Recital 15 states that “extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights of that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.”
The First Issue
The first, and most important, issue on this appeal arises in this way. The appellant submits that what matters is not the ATMD to suspend all eastbound flights from London Gatwick on the afternoon of 10 October 2014, but the underlying reason for that ATMD, namely the thunderstorms. He argues that, since thunderstorms cannot be regarded as extraordinary circumstances, the Article 5(3) defence is not available to the respondent. As part of this argument, the appellant submits that Recital 15 cannot mean that, without more, every delay due to the impact of an ATMD should be deemed to be extraordinary circumstances, and that it is for the court to investigate the circumstances that lay behind every ATMD to see whether or not it can be characterised as extraordinary.
For three separate reasons, explained below,...
To continue reading
Request your trial
-
HD v WB
...PD 28A.4.4. Cases referred to AH v PH[2013] EWHC 3873 (Fam), [2014] 2 FLR 251. Brack v Brack[2018] EWCA Civ 2862, [2019] 2 FCR 312, [2019] 1 WLR 3438, [2019] 3 All ER 664, [2019] 2 FLR 234. Charman v Charman[2007] EWCA Civ 503, [2007] 2 FCR 217, [2007] 1 FLR 1246, [2007] WTLR 1151, (2006–07......
-
Ms Kanaka Durga Chelluri v Air India Ltd
...circumstances” under Article 5(3), as discussed in in two recent decisions of this court: Blanche v Easy Jet Airline Company Ltd [2019] EWCA Civ 69; [2019] BUS LR 1258 (“ Blanche”), where a decision to close a route as a result of an air traffic control decision was held to be an extraord......
-
The Civil Aviation Authority v Ryanair DAC
...where there had been an air traffic management decision to suspend flights because of thunderstorms ( Blanche v EasyJet Airline Co Ltd [2019] EWCA Civ 69, [2019] Bus LR 1258 (“ Blanche”)) and where a flight had had to be diverted to disembark an “unruly passenger who had bitten a passenge......
-
DJ v BJ
...G. Dilliway-Parry for the respondent. Cases cited: (1)B-H v. H, 2009 CILR 185, referred to. (2)Brack v. Brack, [2018] EWCA Civ 286; [2019] 1 W.L.R. 3438; [2019] 3 All E.R. 664; [2019] 2 F.C.R. 312; [2019] 2 FLR 234, considered. (3)FF v. KF, [2017] EWHC 1093 (Fam), considered. (4)Ford v. Bee......
-
Table of Cases
...5, DC 12.57 Bitar v Banque Libano-Française SAL [2021] EWHC 2787 (QB), [2021] 10 WLUK 259 9.34 Blanche v EasyJet Airline Co Limited [2019] EWCA Civ 69, [2019] 1 Lloyd’s Rep 286 10.202 Booth v Phillips [2004] EWHC 1437 (Admlty), [2004] 1 WLR 3292, [2004] 2 Lloyd’s Rep 457, (2004) 101(30) LSG......
-
International Conventions and Regulations - Carriage of Passengers and Baggage
...small number of passengers on board. This might be because of restrictions applied within the 204 Blanche v EasyJet Airline Company Ltd [2019] EWCA Civ 69, [2019] 1 Lloyd’s Rep 286. 205 www.caa.co.uk/Commercial-industry/Airlines/Guidance-on-consumer-law-for-airlines/. country of destination......
-
The Aviation (Consumers) (Amendment) Regulations 2023
...v. Alitalia ([2009] C-549/07) as well as UK domestic case law in Blanche v Easyjet Airline Company Limited ([2019] EWCA Civ 69). Regulation 2(3) clarifies, for the purpose of Article 3(1), the circumstances in which a passenger on a flight is entitled to compensation. This codifies a concep......