Flight delay and cancellation compensation, Jet2.com ONLY

NoviceAngel

27.Against that background I am persuaded that in this case the cause of delay or cancellation was the need to resolve the technical problem which had been identified. That being the case, in my judgment it does not matter how the technical problem was identified. Whether it was identified by routine maintenance (as was the case in Wallentin) or as a result of a warning light during flight (as in the present case) seems to me to be irrelevant. Equally and for that very reason the fact that it was unexpected and unforeseeable is also irrelevant. The reality is that once a technical problem is identified it is inherent in the normal activity of the air carrier to have to resolve that technical problem. Further, the resolution of the problem, as was demonstrated in this case, is entirely within the control of the carrier.

28.On such an analysis the delay caused by the resolution of an unexpected, unforeseen and unforeseeable technical problem cannot be said to be an extraordinary circumstance given the Wallentin test. Air carriers have to encounter and deal with such circumstances as part of running an airline just as the owner of a car has to encounter and deal with unexpected and unforeseen breakdowns of his car.

29.I reach this conclusion not without some hesitation. First I am aware that this conclusion means that the qualification of Aticle 5(3) has limited effect in these circumstances. However if the circumstances are not extraordinary then the qualification does not fall for consideration. Second, I am conscious that three different District Judges at different courts (including in this case) have found extraordinary circumstances to have existed in relation to this very flight. However I note that in all those cases the claimants appeared at the hearing in person and it seems to me unlikely that the learned district judges would have had the benefit of the detailed argument from counsel that I have had. Third, I am informed that a meeting of European national enforcement bodies has provided guidance on this issue which would tend to support the respondent’s argument. However its provenance is unclear and in any event the guidance is just that. It does not purport to be definitive or binding. Whilst it is drawn up by a body whose view deserves some respect, that body is not part of the legislature and is not tasked with interpreting the intention of the legislative body in any particular case. It is not known what interest groups, if any, had input into the discussions.

30.The learned District Judge did not have the benefit of the detailed argument that I have had in particular from the claimant who before him was acting in person. Whether he would have reached a different decision had he had full argument is difficult to say since, as I have indicated, the interpretation of the Regulation and the judgment of the European Court is not straightforward. However, for the reasons which I have given and with the greatest respect to him I conclude that his decision was wrong. In my judgment and on the facts of this case the defendant respondent had not shown that the delay was caused by extraordinary circumstances and therefore was not entitled to the protection afforded by Article 5(3). In the circumstances the appeal will be allowed, the decision of the District Judge will be set aside and there will be judgment for the claimant in the relevant sum.

31.Finally I wish to say something about paragraphs 18 to 20 of the appellant’s grounds of appeal. It is alleged that because the claimant appeared in person against counsel at the original hearing he was in some way disadvantaged (a) because he did not possess the necessary advocacy skills to convey the correct legal test and (b) because he felt "bullied and downtrodden" by the defendant’s experienced counsel. There has been produced to me grounds of appeal in another case where identical allegations are made by the same solicitors on appeal from a decision against a litigant in person. Quite properly, Mr Crilley on behalf of the appellant did not pursue that allegation on appeal in this case and there was absolutely no evidence to support it. One can understand that a litigant in person appearing against counsel may feel disadvantaged in that he/she does not have the ability to advance difficult legal arguments but that is not a proper ground for appeal. But of more concern is the suggestion that counsel has been guilty of bullying his/her opponent, an allegation which reflects badly on both on counsel and indeed the trial judge whose duty it is to control the proceedings and ensure they are conducted fairly. Such allegations should not be made as a matter of course and without good reason supported by evidence. If such allegations are being made as a matter of course then the practice is to be deplored.

32.I invite the parties to attempt to agree an order to reflect this judgment and any consequential orders. In the event that agreement is reached then an agreed draft order should be submitted before the date fixed for handing down of the judgment and attendance will not be required. If agreement cannot be reached then the parties should set out in writing their respective submissions and I will given directions for the resolution of those issues at the time the judgment is handed down.

NoviceAngel

Full Credit to legal magpie for the above two posts of mine, I've simply copied the judgement up onto here, as the forum doesn't accept attachments.

I've edited the above posts, several times to try and preserve the para numbers and original spacing. It's as close to the original as I can make it on here. The actual text of the document remains totally as originally written.

Cheers

NoviceAngel

DrA_Harrogate

Good afternoon fellow lateflyers.

Well, tomorrow it's little old me v Jet2 and lo! I have Judge Platt's full documentation to hand. I had half-expected a call but No. Mysteriously, the local media have expressed an interest...

I loved the bit about bullying! I shall print off some copies in case the learned Judge has missed it.

Wish us luck (Mrs A will be along too) :cool:

NoviceAngel

DrA_Harrogate wrote: »

Good afternoon fellow lateflyers.

Well, tomorrow it's little old me v Jet2 and lo! I have Judge Platt's full documentation to hand. I had half-expected a call but No. Mysteriously, the local media have expressed an interest...

I loved the bit about bullying! I shall print off some copies in case the learned Judge has missed it.

Wish us luck (Mrs A will be along too) :cool:

The best of luck to you both, I'm sure with the judgement from His Honour Judge Platts you have a fantastic chance of suceess :T

David_e

DrA_Harrogate wrote: »

Well, tomorrow it's little old me v Jet2 and lo! I have Judge Platt's full documentation to hand. I had half-expected a call but No. Mysteriously, the local media have expressed an interest...

The timing could not be better, could it?

Best of luck!

Mark2spark

Link to the Appeal ruling in case people want to print it off:

http://www.scribd.com/doc/179933236/Jet2-appeal

batman44

Wow, I love the part about the NEB guidance. this should help a lot of people. can you post this in the Thomas Cook thread?

David_e

batman44 wrote: »

Wow, I love the part about the NEB guidance. this should help a lot of people. can you post this in the Thomas Cook thread?

I was just going to make that very point! Through the wonderfully reserved language used by the judge I think you can discern considerable disdain for the guidance - summed up beautifully in the last sentence: "It is not known what interest groups, if any, had input into the discussions".

The CAA should be hanging their collective heads in shame.

bustyg

Can you help me please?
I recently had an 18hr delay with jet2 and now they are saying I am not entitled to compensation as it was classed as extraordinary circumstances. The problem was we had 2 faults with the aircraft the first was fixed then when we thought we were ready to take off they found a fuel leak,can they be right and I am entitled to nothing?

Vauban

Bustyg: do you think the law regards either technical issue as an extraordinary circumstance? (Special clue: read the last dozen posts on this thread, or even the FAQ on page one)