Ms Kanaka Durga Chelluri v Air India Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Stuart-Smith |
| Judgment Date | 21 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1953 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2021/0373 |
[2021] EWCA Civ 1953
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lord Justice Coulson
and
Lord Justice Stuart-Smith
Case No: B2/2021/0373
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
HHJ BERKLEY
F26YY457
Royal Courts of Justice
Strand, London, WC2A 2LL
Harry Gillow (instructed by Haywood Baker Solicitors) for the Appellant
Jacob Turner (instructed by Zaiwalla & Co) for the Respondent
Hearing Date: 16 November 2021
Approved Judgment
INTRODUCTION
The issue raised on this appeal is whether an air passenger with a single booking, departing from one country outside the EU/UK 1, and arriving at another country outside the EU/UK, can rely on the relevant Regulation dealing with compensation for flight delays, in circumstances where the third of the four legs that made up that single reservation was late leaving Heathrow. In his judgment dated 22 January 2021, HHJ Berkley (“the judge”) allowed an appeal against the decision of the district judge, and rejected that claim.
The appeal, for which I gave permission on 25 May 2021, raises two grounds. Ground 1 argues that the judge was wrong to conclude that the CJEU decision in Case-537/17 Wegener v Royal Air Maroc SA [2018] Bus LR 1366 (“ Wegener”) obliged him to hold that the appellant could not make a claim because she had made a single booking departing from Kansas City, Missouri, and could not therefore rely on the constituent parts of that booking for the purposes of compensation. Ground 2 argues that, if the proper interpretation of Wegener was as set out by the judge, then Wegener was wrongly decided and/or this court should not follow it.
Although these points are relatively short, and the sums at stake are modest, the written and oral arguments have extended far and wide. This may well be because, like other flight delay appeals, there are many hundreds of other cases awaiting the result. Certainly it is possible to imagine that, if the relevant Regulation applied to individual stages of much longer overall flights starting outside the EU/UK, there might be a significant increase in the volume of such claims.
THE FACTS
The appellant, Ms Kanaka Durga Chelluri, travelled by air from the United States of America to India. She booked her ticket to depart from Kansas City, Missouri with a destination of Bengaluru.
That booking had four legs. As scheduled, those legs were:
i) Kansas City, Missouri, USA, to Detroit USA, departing Kansas City at 13.49 (local time) on 27 May 2019;
ii) Detroit to London Heathrow, departing at 18:00 (local time) on 27 May 2019;
iii) London Heathrow to Chhatrapati Shivaji Maharaj airport, Mumbai, India, departing at 13:15 (local time) on 28 May 2019;
iv) Mumbai to Bengaluru, also in India, departing at 18:00 (local time) on 29 May 2019.
Delta Airlines was the air carrier for legs (i) and (ii). The respondent, Air India, was the carrier for legs (iii) and (iv). Both Delta Airlines and the respondent are non-EU carriers.
Leg (iii), namely the flight from London Heathrow to Mumbai, was delayed by approximately 48 hours. It did not depart until 14:09 (local time) on 30 May 2019. The appellant did not arrive in Mumbai until 01:30 (local time) on 31 May 2019. The arrival delay was 46 hours and 45 minutes. Consequently the appellant was very late (and certainly delayed by much more than the 4 hours otherwise required to trigger a claim under the Regulation) in arriving at her final destination at Bengaluru.
THE JUDGMENTS BELOW
In consequence, the appellant brought a claim under EU Regulation 261/04 (“the Regulation”) which provides a compensation mechanism for delayed and cancelled flights. On 9 September 2020, District Judge Sanderson allowed the appellant's claim on the basis that the flights operated by the respondent were entirely separate from the flights operated by Delta. As a result he said that the appellant's journey was therefore not to be treated as a single flight for the purposes of the Regulation. The respondent appealed.
In an ex tempore judgment given on 22 January 2021, the judge allowed the appeal. In short, the judge found that, as a result of the decision in Wegener, what mattered was the overall journey that had been booked, from Kansas City to Bengaluru, not its component parts. He said that he was bound by Wegener and the subsequent authorities and that, because the overall journey had started and finished outside the EU, the appeal would be allowed and the claim dismissed.
THE LAW
The Regulation
For present purposes, the relevant parts of the Regulation are Article 3 and Article 7. Article 3 in its unamended form provides as follows:
“ Scope
1. 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.
…
5. This Regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 & 2. Where an operating air carrier that has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger.”
Article 3 therefore provides that jurisdiction under the Regulation can arise in two separate sets of circumstances. The first, under Article 3(1)(a), arises if the relevant departure is from an EU/UK airport. That is sometimes called the territorial gateway. The second, under Article 3(1)(b), arises if the air carrier is an EU/UK carrier and the flight lands in the EU/UK. That is sometimes called the carrier gateway. The carrier gateway does not arise here; this appeal is concerned solely with the territorial gateway under Article 3(1)(a).
Article 7 in its unamended form provides as follows:
“ Right to compensation
1. Where reference is made to this Article, passengers shall receive compensation amounting to:
(a) EUR 250 for all flights of 1500 kilometres or less;
(b) EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 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.
2. 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
(a) by two hours, in respect of all flights of 1500 kilometres or less; or
(b) by three hours, in respect of all intra-Community flights of more than 1500 kilometres and for all other flights between 1500 and 3500 kilometres; or
(c) by four hours, in respect of all flights not falling under (a) or (b), the operating air carrier may reduce the compensation provided for in paragraph 1 by 50 %.
3. The compensation referred to in paragraph 1 shall be paid in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.
4. The distances given in paragraphs 1 and 2 shall be measured by the great circle route method.”
Other parts of the Regulation to which we were taken during argument included Article 2, which defines “final destination” as:
“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…”
The principal way in which an air carrier can avoid paying compensation for delays or cancellations which would otherwise fall within Article 3 is by demonstrating “exceptional 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 extraordinary circumstance; and Lipton and another v BA City Flyer Ltd [2021] EWCA Civ 454; [2021] 1 WLR 2545 (“ Lipton”), where the captain's illness was held not to be an extraordinary circumstance. Article 15 does not arise directly on this appeal.
Following the withdrawal of the UK from the EU, the wording of Articles 3 and 7 has been amended insofar as they relate to the UK. Those amendments were affected by the Air Passenger Regulations 2019, and summarised by Green LJ in Lipton at [72], as follows:
“(4) In Article 3 (scope)—
(a) in paragraph 1, in point (a), for “the territory of a Member State to which the Treaty applies” substitute “the United Kingdom”;
(b) for point (b) substitute—
“(b) to passengers departing from an airport located in a country other than the United Kingdom to an airport situated in—
(i) the United Kingdom if the operating air carrier of the flight concerned is a Community carrier or a UK air carrier; or
(ii) the territory of a Member State to which the Treaty applies if the operating air carrier of the flight concerned is a UK air carrier, unless the passengers received benefits or compensation and were given assistance in that other country.”;
(c) in paragraph 6, for “Directive 90/314/EEC” substitute “the Package Travel and Linked Travel Arrangements Regulations 2018”.
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The Aviation (Consumers) (Amendment) Regulations 2023
...set out in various cases includingWegener v. Royal Air Maroc SA(Case C-537/17 [2018] Bus LR 1366) and Chelluri v. Air India Ltd [2021] EWCA Civ 1953 [2022] Bus. L.R. Regulation 2(4) codifies key concepts in certain EU case law clarifying the scope of Regulation (EC) 261/2004. The codificati......