Lipton and another v BA Cityflyer Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Sales,Lady Rose,Lady Simler,Lord Burrows,Lord Lloyd-Jones |
| Judgment Date | 10 July 2024 |
| Neutral Citation | [2024] UKSC 24 |
| Court | Supreme Court |
Lord Lloyd-Jones
Lord Sales
Lord Burrows
Lady Rose
Lady Simler
Appellant
Akhil Shah KC
Nicolas Damnjanovic
(Instructed by Norton Rose Fulbright LLP)
Respondents
Michael Rawlinson KC
Max Archer
Daniel Isenberg
(Instructed by Irwin Mitchell LLP (London))
Intervener – Civil Aviation Authority
Kevin De Haan KC
Michael Coley
(Instructed by The Civil Aviation Authority)
Heard on 6 February 2024
Lord Sales AND Lady Rose ( with whom Lady Simler agrees):
Mr and Mrs Lipton were booked onto a flight operated by the appellant (“Cityflyer”) scheduled to depart from Milan Linate Airport at about 5 pm on 30 January 2018. They were supposed to arrive at London City Airport just after 6 pm local time. The flight was cancelled because the pilot reported that he was unwell shortly before the flight and it was not possible to find a replacement in time. The Liptons were rebooked onto another flight and arrived at London City Airport at about 8:45 pm that evening, just over 2.5 hours later than they expected. The Liptons put in a claim for compensation for €250 (about £220) but Cityflyer has refused to pay.
From this all too familiar tale of frustration and annoyance arise two important legal issues which have made their way up through the several tiers of the court system to occupy a full day of argument before this court.
One of those legal issues, raised by Ground 1 of this appeal, is directly related to the facts of this case. The Liptons' claim was made under Regulation (EC) 261/2004 of 11 February 2004 (“Regulation 261”) which confers a right on passengers to compensation for cancelled flights. Regulation 261 provides the airline with a defence if it can show that the cancellation was the result of “extraordinary circumstances”. Ground 1 raises the question of what is meant by that term and whether the pilot's illness which caused the cancellation of the Milan flight counts as an “extraordinary circumstance” or not.
The second issue is potentially of much broader significance. Between the date of the cancelled flight and the date of the hearing of the Liptons' claim before the Court of Appeal, the United Kingdom left the European Union. The second issue is what effect, if any, that had on the Liptons' ability to recover compensation by pursuing the right that was conferred on them by Regulation 261 whilst the UK was still an EU Member State. That issue forms Ground 2 of the appeal now before the court.
Cityflyer is an airline. It is an “operating air carrier” within the meaning of Regulation 261.
The Liptons were booked on the Cityflyer flight due to depart from Milan at 17.05 local time on 30 January 2018 and to arrive the same day at London City Airport at 18.05 (local time).
At 16.05 local time in Milan the captain of the aircraft for the flight reported that he was unwell. At that time he was not yet on duty and was not at his place of work. He was told to speak to a medical services consultancy (Medaire), who determined that he was not fit to fly until signed off by one of their doctors. The cause of the captain's illness was not related to his work.
The flight could not be operated without the captain. As a result of his illness the flight had to be cancelled as there was no replacement pilot available in Milan to operate it within a reasonable time.
The Liptons were re-booked onto another flight the same day. They arrived at London City Airport at 20.41, which was 2 hours and 36 minutes after their original scheduled arrival time.
The moment that the United Kingdom ceased to be a member of the European Union is identified with great precision as 11 pm GMT on 31 January 2020. However, the process of withdrawal, in particular as regards its legal consequences, has been a complex and gradual one. Many of those consequences were dealt with by the provisions of the European Union (Withdrawal) Act 2018 (“the Withdrawal Act 2018”) which received Royal Assent on 26 June 2018 having completed its passage through both Houses of Parliament a few days earlier.
The date set for the United Kingdom to cease to be a member by the Withdrawal Act 2018, as it originally entered into force, was 29 March 2019. The term “exit day” used in that Act was defined in section 20(1) as 29 March 2019 at 11 pm (that being midnight Central European Time). Section 1 of the Withdrawal Act 2018 provided simply that “The European Communities Act 1972 is repealed on exit day”. The European Communities Act 1972 (“the ECA 1972”) had been enacted to implement the United Kingdom's accession to the European Economic Community (as it then was) on 1 January 1973.
Section 2(1) of the ECA 1972 as originally enacted is regarded by many as a peerless example of the Parliamentary drafters' skill. It encapsulated the effect of this country's accession in a single sentence. It appears to have been unproblematic in achieving whatever needed to be achieved between 1 January 1973 and Brexit despite the seismic changes in EU law over that period. In its original form it said:
“2(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this subsection applies.”
That provision therefore was one of the provisions repealed by section 1 of the Withdrawal Act 2018.
At the point when the Withdrawal Act 2018 gained Royal Assent, the arrangements for an orderly transition in terms both of future relations between the UK and the EU and in terms of the corpus of law applicable in the UK had not yet been settled. The United Kingdom and the EU concluded a treaty, called the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, on 24 January 2020 (“the Withdrawal Agreement”). This was signed the day after the text of the draft treaty was approved by the UK Parliament. The Withdrawal Agreement set out the agreement between the EU and the UK that the UK's exit would be followed by a time limited transition period which would last until 11 pm on 31 December 2020. Article 127(3) of the Withdrawal Agreement provided that during that transition period, EU law “shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States, and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.” This meant that during that 11 month period, the EU Treaties and other EU law would continue to apply in the UK by way of transitional provision.
The Withdrawal Agreement between the EU and the UK was implemented in the United Kingdom by the European Union (Withdrawal Agreement) Act 2020 which gained Royal Asset on 23 January 2020 (“the Withdrawal Agreement Act 2020”). That Act made extensive amendments to the Withdrawal Act 2018. Further, the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No 3) Regulations 2019 (SI 2019/1423) amended the definition of exit day in section 20 of the Withdrawal Act 2018 so that it read 31 January 2020. This meant that 11 pm on 31 January 2020 was therefore the date and time of Brexit and the date and time when the United Kingdom became a non-Member State.
However, to reflect what had been agreed with the EU in the Withdrawal Agreement, the Withdrawal Agreement Act 2020 introduced the concept of the implementation period after Brexit, and of “IP completion day” which would mark the end of that period. In effect, therefore, much of the legal landscape would stay the same during the 11 months between Brexit actually occurring on 31 January 2020 and the completion of the implementation period on 31 December 2020. As the Explanatory Notes to the Withdrawal Agreement Act 2020 put it, the effect of the ECA 1972, as modified to give effect to the Withdrawal Agreement, was saved for the time limited implementation period: para 21. Further:
“22. The [Withdrawal Agreement Act 2020] also modifies the saved ECA [1972] provisions to reflect the fact that the UK has left the EU, and that the UK's relationship with EU law during this period is determined by the UK's obligations under the Withdrawal Agreement, rather than as a Member State. The Act will also make sure that existing legislation continues to operate properly during the implementation period, despite the fact that the UK is no longer a Member State. As such, the Act will provide glosses to make clear how EU terms on the UK statute book should be read during the implementation period. …
23. EU rules and regulations will continue to apply in the UK during the implementation period. The Act, therefore, amends the EU (Withdrawal) Act 2018 so that the conversion of EU law into ‘retained EU law’ and the domestication of historic Court of Justice of the European Union (CJEU) case law can take place at the end of the implementation period rather than on ‘exit day’. The Act defines this point in time as ‘IP completion day’ at section 39 [ that is 31 December 2020].”
Section 1 of the Withdrawal Agreement Act 2020 therefore inserted a new section 1A into the ...
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