Marjolyn Varano v Air Canada
| Jurisdiction | England & Wales |
| Judge | Geraint Webb |
| Judgment Date | 17 May 2021 |
| Neutral Citation | [2021] EWHC 1336 (QB) |
| Date | 17 May 2021 |
| Docket Number | Case No: QB-2020-001410 |
| Court | Queen's Bench Division |
[2021] EWHC 1336 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Geraint Webb QC
(Sitting as a Deputy High Court Judge)
Case No: QB-2020-001410
Harry Gillow (instructed by Hayward Baker Solicitors) for the Claimant
Tom Stewart Coats (instructed by Norton Rose Fulbright LLP) for the Defendant
Hearing date: 3 March 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Geraint Webb QC
Geraint Webb QC:
(1) Introduction
The parties
The Claimant, Marjolyn Varano, seeks compensation from the defendant airline, Air Canada, in the fixed sum of €600 in respect of a delayed flight in April 2016. The claim has been brought pursuant to Article 7 of Parliament and Council Regulation (EC) No 261/2004 of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding, or cancellation, or long delay of flights (“ Regulation 261”).
The Defendant, Air Canada, denies that the Claimant is entitled to compensation under Regulation 261.
Agreed facts
It is common ground that:
a. For the purposes of Regulation 261, Air Canada is not a “Community carrier”, meaning that it is not an air carrier with an operating licence granted by a Member State.
b. In 2016 the Claimant made a single booking with the Defendant to fly from London Heathrow to Austin-Bergstrom International Airport, Texas, USA, via Toronto Pearson International Airport, Canada, by means of two directly connecting flights.
c. There was no delay to the first flight from London Heathrow to Toronto Pearson International; it landed at Toronto slightly ahead of schedule at 14:53 UTC on 10 April 2016.
d. The second flight, from Toronto to Austin, was scheduled to depart at 18.25 UTC, over three and a half hours later.
e. The aircraft allocated to operate the second flight was due to fly into Toronto from J.A. Douglas McCurdy Airport, Nova Scotia, but that incoming flight was cancelled as a result of a technical issue raising safety concerns. An alternative aircraft was therefore allocated for the flight from Nova Scotia to Toronto and then from Toronto to Austin. That alternative flight arrived into Toronto at 22.44 UTC and departed Toronto at 23.42 UTC, over five and a quarter hours late.
f. As a result, the Claimant's flight arrived in Austin five hours and forty-nine minutes after the originally scheduled arrival time.
g. The Claimant is domiciled in the USA and is not a citizen of any Member State.
h. If the Claimant does have a right to compensation under the Regulation, contrary to the Defendant's position, then the appropriate compensation in this case would be €600 having regard to the length of the flight and the length of the delay.
The Issues
Ms Varano contends that she has a right to compensation from Air Canada for the delay to the flight pursuant to Regulation 261.
Air Canada's position is that Regulation 261, properly construed in accordance with principles of international law, cannot and does not apply in circumstances in which (i) the Defendant is a non-Community carrier and (ii) the causative delay arose on the second flight, being a flight operating outside of the EU (Toronto to Austin).
Procedural history
The claim form was issued on 5 August 2019 in the County Court. The Claimant applied, unsuccessfully, for summary judgment on 1 October 2019. The Defendant then successfully applied for this claim to be transferred to the High Court. The Claimant's application to have the matter transferred back to the County Court was dismissed by order of Senior Master Fontaine dated 13 July 2020; in doing so she noted that: “the issues as to whether the Court of Appeal decision and CJEU authorities referred to by the Claimant can be distinguished, the effect of public international law upon the competence of the EU and whether an issue should be referred to the CJEU for a determination are complex issues of a type that would normally be dealt with by the High Court”.
(2) Regulation 261
Regulation 261, which repealed Regulation (EEC) No 295/91 ( OJ 2004 L46, p 1), contains (amongst others) the following recitals:
“(1) Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.
(2) Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers.
(3) While Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied boarding compensation system in scheduled air transport created basic protection for passengers, the number of passengers denied boarding against their will remains too high, as does that affected by cancellations without prior warning and that affected by long delays.
(4) The Community should therefore raise the standards of protection set by that Regulation both to strengthen the rights of passengers and to ensure that air carriers operate under harmonised conditions in a liberalised market…”
Article 1, under the heading “subject” provides as follows:
“This Regulation establishes, under the conditions specified herein, minimum rights for passengers when:
(a) they are denied boarding against their will;
(b) their flight is cancelled;
(c) their flight is delayed.”
Article 2 includes the following Definitions
“(b) ‘operating air carrier’ means an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger
(c) ‘Community carrier’ means an air carrier with a valid operating licence granted by a Member State …
…
(h)‘final destination’ means the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight; alternative connecting flights available shall not be taken into account if the original planned arrival time is respected;”
Article 3 sets out the “scope” of the Regulation as follows:
“This Regulation shall apply:
(a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;
(b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier”
Accordingly, the Regulation applies to passengers departing from an airport located in the territory of an EU Member State, regardless of whether the flight is operated by a Community carrier or a non-Community carrier. Separately, it also applies (subject to the stated qualifications) to passengers departing from an airport located in a third country to an airport in the territory of a Member State, but only if the operating air carrier of the flight is a Community carrier.
Articles 4 and 5 set out the rights of a relevant passenger in respect of denied boarding and cancellation, respectively. Those rights include: compensation pursuant to Article 7 (determined by reference to the length of the flight and the length of the delay); assistance in the form of a right to reimbursement or re-routing pursuant to Article 8; and a right to certain types of care pursuant to Article 9 (which care includes meals and hotel accommodation, and particular provisions for persons with reduced mobility and unaccompanied children).
Article 6 of the Regulation sets out the rights of a relevant passenger in the event of the delay of a flight. Depending on the type and length of the flight and the length of the delay, those rights include assistance under Articles 8 and 9; it does not refer to any right of compensation under Article 7 in the event of delay.
The compensation provided for by Article 7 is determined by reference to the distance of the flight and the length of the delay: the amount of compensation under Article 7(1) being:
“(a) EUR 250 for all flights under 1,500 kilometres
(b) EUR 400 for all intra-Community flights of more than 1,500 kilometres, and for all other flights between 1,500 and 3.500 kilometres
(c) EUR 600 for all flights not falling under (a) or (b).
In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger's arrival after the scheduled time”.
Article 7(2) allows the carrier to reduce compensation “when passengers are offered re-routing to their final destination on an alternative flight pursuant to Article 8, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked”.
(3) Judicial consideration of Regulation 261
The meaning and effect of Regulation 261 has been the subject of detailed consideration by the Court of Justice of the European Union (“ the CJEU”) in a number of cases. It has also been considered by the High Court and the Court of Appeal. The authorities bundle produced by the parties includes 49 authorities and other materials, running to over 1500 pages. The following paragraphs summarise the key authorities relied upon by the parties in chronological order.
CJEU decisions prior to the Court of Appeal's decision in Gahan
In Sturgeon and others v Condor Flugdienst GmbH (Joined Cases C-402/07 and C-432/07) [2010] Bus LR 1206 the CJEU considered two joined cases involving flights operated by Community carriers...
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