Flight delay and cancellation compensation, Jet2.com ONLY

Do you think it is worth pursuing?

Can anyone recommend a no win no fee company if I don't get anywhere?

I am happy to say I was successful with a case at Edinburgh Sheriff Court against Jet 2. It is however currently being appealed. Essentially the technical fault here was the failure of part of the navigation and avionics system. The evidence was this happened across the fleet once or twice a year but when it would happen could not be anticipated. (ie. no maintenance procedures would tell the airline when it would fail) Sheriff McColl at Edinburgh found the following


Decision
f30] It was agreed by the parties that the pursuers' flight had been delayed for over five hours and that the Regulation applied to their respective rights and obligations arising from that delay. It was agreed that the right to compensation in terms of article 7 of the Regulation had been extended by the European Court of Justice to flight delay as set out in article 6 as well as in cases of flight cancellation as set out in article 5. The issue in dispute was whether the defender was entitled to be relieved of their obligation to compensate the pursuers for the delay in terms of article 5(3) of the Regulation by discharging the onus of proof that the delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. It is clear from Wallentin-Hermann supra at paragraphs 17 and 18 that the European Court of Justice has stressed that the overriding purpose of the Regulation is to promote consumer protection and that Article 5(3) which seeks to derogate from the operation of Article 7, a rule for the protection of consumers, must be interpreted strictly.
[31] The defender has sought to rely upon recital 14 of the Regulation by maintaining that the failure of the symbol generator was responsible for the delay which occurred and that it was an unexpected flight safety shortcoming and was therefore an extraordinary
circumstance which could not have been avoided even if all reasonable measures had been taken in terms of Article 5(3). In support of that position the defender also relied on items 24,25 and 26 on the preliminary list of extraordinary circumstances compiled following the meeting of the National Enforcement Bodies on 12 April 2013 (6/5 of process) which includes some examples of what those bodies considered to be unexpected flight safety shortcomings. Mr Hanrahan was correct in his submission that the National Enforcement Bodies were not part of the European Community nor of the European Council nor of the European Court of Justice. The list compiled by them is not in any way binding on this or any other court. In any event, Item 26, which refers to "other technical defects which become apparent in flight (where the system or part had been maintained in accordance with the required maintenance programme)", cannot apply to what, according to Mr [Removed], was an unmaintained part. In relation to items 24 and 25, "failure of on condition parts which should not require unscheduled maintenance or replacement during normal operational service or failure of necessary aircraft systems such as a flight control system", I considered that, as it was known by the defender that the symbol generator was a part which could fail without warning at any time in any aircraft in which it was installed and that it had in fact been failing once to twice a year within its fleet of aircraft, it could not be described as an unexpected flight safety shortcoming when that part failed again. It follows that any flight control system which the failed symbol generator supports will also fail when that occurs and is, therefore, also foreseeable. The frequency of the technical problems experienced by an air carrier is not in itself a factor from which it is possible to conclude the presence or absence of the "extraordinary circumstances" within the meaning of Article 5(3)
of the Regulation (Wallentin-Hermann paragraph 3) .
[32] Examples of extraordinary circumstances that stem from events which are not inherent in the normal exercise of activity of the air carrier concerned and are beyond its actual
control are set out in paragraph 26 of Wallentin-Hermann as being the situation where it was
revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect. The same would hold for damage to aircraft caused by acts of sabotage or terrorism. Neither of these examples occurred in this case. It can be seen that
the Court had in mind events which are completely outwith the knowledge or anticipation of the air carrier in advance of their occurrence. I was invited by Mr Garden in the course of
his submissions to consider that the failure of the symbol generator in this case was analogous to a latent defect on a piece of machinery. I rejected that submission. A latent defect is something that is unknown to exist until it reveals itself. The defender was aware in 2011 that the type of symbol generator which failed in the flight that is concerned in this case was likely to fail without warning each year in at least one if not two of the fleet of aircraft that it operated. As air carriers they operated in that knowledge and it was inherent in their operation. Therefore I do not consider that the failure of the symbol generator in this case was of itself an extraordinary circumstance as defined in the Regulation and the case law of the European Court of Justice which has been referred to and discussed in this case.

Further the actual delay which occurred in this case was not caused by the failure of the symbol generator of itself. The evidence was that the part was able to be quickly replaced and the aeroplane made ready for flight within thirty minutes including checks carried out after installation. If the spare part had been retained at Murcia airport there would have been little or no delay to the flight in this case.
In Wallentin at paragraph 21 and 22 the Court said that when the Community legislature indicated as stated in recital 14 in the preamble that extraordinary circumstances may occur in certain cases including unexpected flight safety shortcomings it did not mean that those events themselves constitute extraordinary circumstances but only that they may produce such circumstances. It follows that all the circumstances surrounding such events are not necessarily grounds of exemption from the obligation to pay compensation provided for in Article 5(1)(c) of the Regulation. The delay in this case arose from choices which had been made by the defender as to how they would respond to such a failure should it occur. The defender had chosen to retain a spare symbol generator only within the United Kingdom and had chosen not to store any spare of that part, which was required for the operation of a necessary aircraft system - the flight control system - anywhere on mainland Europe. It is not surprising that Mr [Removed] did not respond to Mr Hanrahan's proposition that it flowed from that that every outbound flight which the defender operated into mainland Europe was at risk of suffering a lengthy delay in the event of a symbol generator failing during the outbound journey. That was self-evidently the case.

[35] The defender has not discharged the onus of proof placed upon it in terms of paragraph 40 of Wallentin- Hermann to establish not only that the failure of the symbol generator in this case was an extraordinary circumstance but also that, even if it was established, the delay which occurred could not on any view have been avoided by measures appropriate to the situation - that is to say, measures that which at the time the extraordinary circumstance arose meeting inter alia conditions which were technically and economically viable for the air carrier concerned. To do that, in terms of paragraph 41, the defender must establish that even if it had deployed all of its resources in terms of staff or equipment and the financial means at its disposal it would clearly not have been able - unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time - to prevent the extraordinary circumstances to which it was confronted from leading to the delay of the flight which had occurred. The defenders did not provide any evidence of its resources in terms of staff, equipment or its financial means. Neither of the defender's witnesses gave any evidence of the extent of its resources apart from asserting that it would have been impossible logistically and economically to retain a spare symbol generator at every one of the airports to which it operated flights. Beyond that assertion there was no evidence of what sacrifice, intolerable or otherwise, that would have to have been made in the light of the capacities of its undertaking at the time of the flight delay which occurred in this case. The defender provided no evidence of details of the airports which they used on mainland Europe nor precise details of the numbers of flights which were fitted with the same type of symbol generator which were deployed there which would have been relevant to the issue of logistics in considering whether the course of action which they did take and their rejection of any other course was appropriate in the circumstances. There was no vouching of availability or of the cost of chartering a plane from another carrier. Mr [Removed] provided a fairly wide range of cost for a symbol generator without any explanation or vouching. There was no evidence at all produced by the defender to allow consideration the cost of that part or a number of that part as spares in the context of economic viability.
[36] It did not seem to me that having a spare generator at every airport used by the defender, however many that may have been and wherever they were located, would have been the necessary alternative to avoid the delay which occurred in this case. In particular, Murcia was one of three destinations operated by the defenders in southern and south-east Spain, the others being Alicante and Malaga. Mr [Removed] referred to Alicante, where there
was a qualified engineer, being a 90 mile drive from Murcia. A spare symbol generator located in that region would have greatly reduced the delay which occurred in this case. The defender did not lead any evidence of having considered retaining a symbol generator spare at any central locations on the European Mainland which could be able to provide the replacement part to several airports in the region which they served so as to avoid such extensive delay and inconvenience to their passengers as had occurred in this case. At paragraph 81 of Nelson the Court stated that case -law shows that the importance of the objective of consumer protection, which includes the protection of air passengers, may justify even substantial negative economic consequences for certain economic operators. There has been no evidence led by the defender of whether or not such negative economic consequences would have arisen in this case had it adopted some other way of dealing with or planning for a failure of a symbol generator when it did occur in an outbound flight. Far from deploying all its resources and financial means, whatever they may have been, it appeared to me from the evidence that the defender adopted a course of action in relation to the problem of the occurrence of a failure in a symbol generator in the outbound flights which it operated into mainland Europe which was relatively cost neutral to itself by storing the part in its bases in the United Kingdom. In the present case, apart from the cost of a taxi from Manchester to Blackpool, the flight taken by the engineer with the part was an existing scheduled flight of the defender and the engineer was an existing employee on their payroll. It could be assumed that the engineer would have returned to the United Kingdom on another scheduled flight of the defender.
[371 Accordingly, in my opinion the pursuers are each entitled to recover the sum of Euro 400 in compensation from the defender in terms of Article 7(1)(b) of the Regulation together with expenses on the small claims scale. I do not accept Mr Hanrahan's submission that interest on that compensation should run from the date of the delayed flight. Mr Garden was correct to say that the Interest on Damages (Scotland) Act 1971 permits the backdating of interest on damages only in claims relating to personal injury and death to the event which was their cause. Otherwise, interest is due ex lege in a claim before the court from date of final decree until payment.

Thanks Vauban,


Expenses will follow success in the appeal. The defenders have instructed counsel, so I have done likewise. If I l win then yes expenses will come my way. If I lose my bank manager is unlikely to be happy as I am doing this case on my own time.


I would attach the full judgement but can't attach as a newbie.