Flight delay and cancellation compensation, Easyjet ONLY

JPears

Welcome.

Please post on the Easyjet thread, not your own personal thread, which massively clutters up the board for old and new forum visitors alike.
You are not due any compensation under regulation 261/2004 as you have received more than 2 weeks notice. Unfortunately there is not alot you can do here. Inconvenience, although only 4 hours, is not something airlines recognise or feel they have any responsibility for.
there usual response is that booking that far ahead is the problem (like alot of us have any choice in the matter...)

Caz3121

Easyjet class 5 hours as a significant change (for refund purposes)
article on your rights here - https://www.moneysavingexpert.com/travel/flight-changes

Chickenbrain2009

I didnt know there was an easyjet thread

mgdavid

Chickenbrain2009 wrote: »

I didnt know there was an easyjet thread

You are supposed to read the 'sticky' at the top of the board before posting anything new. It says:

" Flight Delay Compensation Important Info - Please check before posting Please post in the relevant thread for the airline you are claiming for"

JPears

thread 4 lines down from this one......

borax

I traveled from Toulouse to UK on EZY5140 Friday 20th April which was delayed by about 8h45 minutes late.
Easyjet rejected my claim on the basis that an earlier flight had to divert due to fog. Whilst this contributed some of the delay. There was a second issue due to a problem with the first officers oxygen bottle which compounded the problem. The flight out to toulouse was 4 hours 9 minutes late when it landed. We then boarded the plane only for the pilot to decide that it was unservicable and everyone disembarked to wait for another aircraft (adding more than 4 hours to the delay)

Two questions- 1) would the problem with an aircraft be a cause for a claim
2) What do the regulations say about claims caused by multiple factors

Thanks

NoviceAngel

Thank you very much to the person that furnished me with this

I'll comment more after due deliberation and a coffee!

HER_HONOUR_JUDGE_MELISSA_CLARKE wrote:

Case No: B42YP030

IN THE COUNTY COURT AT LUTON
SITTING AT OXFORD COMBINED COURT

ON APPEAL FROM DISTRICT JUDGE RICHARD CLARKE

St Aldate’s
Oxford
OX1 2TL
Date: 29 September 2017

Before:

HER HONOUR JUDGE MELISSA CLARKE

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Between:

DANIEL BLANCHE

Appellant/

Claimant

- and -

EASYJET AIRLINE COMPANY LIMITED

Respondent/

Defendant

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Miss Jessica Wilson-Theaker (instructed by Bott & Co Solicitors Ltd) for the Appellant

Mr Max Kasriel (instructed by Norton Rose Fulbright LLP) for the Respondents

Hearing date: 14 July 2017

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JUDGMENT



[FONT=&quot]
[/FONT] Her Honour Judge Melissa Clarke:

[FONT=&quot]
[/FONT] Introduction
1. This is an appeal by Mr Daniel Blanche from an order of District Judge Richard Clarke of 21 September 2016 dismissing his claim for compensation in the sum of €250 for flight delay pursuant to Article 7(1)(a) of Regulation (EC) No. 261/2004 (“the Regulation”). I granted permission to appeal on 1 November 2016.
2. The following facts are not disputed. The Appellant was booked to fly on EZY8522 on 10 October 2014 from Brussels Airport (BRU) (with a scheduled departure time of 17.45) to London Gatwick (LGW) (with a scheduled arrival time of 18.55). The aircraft scheduled to operate this flight was G-EZIN. On its previous leg, it was due to leave LGW for BRU at 16.10, with a scheduled arrival time into BRU at 17.15. That allowed for a scheduled 30 minute turnaround before the Appellant’s flight was scheduled to depart BRU.
3. However, there were thunderstorms at LGW and air traffic control (“ATC”) at LGW suspended all eastbound departures from LGW. G-EZIN was delayed during the period of suspension and did not depart LGW until 21.40. It arrived into BRU more than 5 hours late. It did not operate the Appellant’s flight and take-off from BRU until 23.45. The delay to the Appellant’s flight was therefore a knock-on delay from the delay to the outbound LGW-BRU flight.
4. The Respondent accepted that the compensation sought was prima facie payable under the Regulation, but resisted the claim on the statutory defence contained in Article 5(3), namely that the delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, exempting the airline from paying compensation for the delay. The Appellant relied at trial upon a witness statement (and exhibited documents) of Mr Nick Nicholas, a lawyer employed by the Respondent, as evidence of the cause of delay and the measures taken to avoid the delay.
5. The central issue at trial was whether the reason for the delay was (i) the fact of thunderstorms over LGW, or (ii) the ATC decision to suspend eastbound departures from LGW. District Judge Richard Clarke, giving an ex tempore judgment, dismissed the claim, holding that the ATC decision had caused the delay and that the Respondent had the benefit of the Article 5(3) defence. The question which arises in this appeal was whether he was right to do so.
The Law
6. The title of the Regulation describes its purpose, namely in “establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights...”
7. It is common ground that the effect of the decision of the Court of Justice of the European Union (“CJEU”) in Sturgeon v Condor Flugdienst GmbH & Bock v Air France SA (joined cases C-402/07 and C-432/07, [2010] 2 All ER (Comm) 983), is that passengers who have suffered a qualifying delay are entitled to compensation under Article 7 of the Regulation, subject to the Article 5(3) exception to provide compensation.
8. Article 5(3) provides:
“An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.
9. The Regulation contains no definition of ‘extraordinary circumstances’. The CJEU has held that in the absence of a definition of ‘extraordinary circumstances’ within the text of the Regulation, the meaning and scope of that phrase should be determined in accordance with its usual meaning in everyday language (per Wallentin-Hermann v Alitalia-Linee Aeree Italiane SpA (Case C-549/07) [2009] Bus LR 1016 (“Wallentin-Hermann”) at para. 17). In addition, Recitals 14 and 15 to the Regulation provide guidance to the intentions of those who drafted the Regulations (per Wallentin-Hermann at para. 17 and Jet2.com Limited v Huzar [2014] EWCA Civ 791 (“Huzar”), at para. 9). The Recitals do not form part of the Regulation itself and are not binding as to their interpretation. They are as follows:
“(14) As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.
(15) Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.”
10. There are a number of leading authorities which consider the meaning of ‘extraordinary circumstances’ pursuant to Article 5(3). A two-stage test was set out in the judgment of the CJEU in Wallentin-Hermann at para. 34:
“Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.”
11. The Court of Appeal in Huzar considered this test. Elias LJ confirmed at para. 21 that when considering whether there are extraordinary circumstances, the Court has to focus on the source or events which cause the problem, not its resolution.
12. The case of Siewert v Condor Flugdienst GmbH (C-394/14) (“Siewert”) clarified a doubt raised in Huzar, namely whether the Wallentin-Hermann test was a composite or a two-stage test and how to reconcile those two limbs of inherency and control. The CJEU concluded that extraneous acts of third parties beyond the control of the carrier can be inherent in the normal activities of the carrier, even in circumstances where the carrier could not have done anything to prevent them.
13. In Van der Lans v KLM (C-257/14) (“Van der Lans”), the aircraft scheduled to take Ms van der Lans from Quito, Ecuador, to Amsterdam experienced the premature failure of two technical components, the repair of which delayed the flight by more than a day. The CJEU held that a technical problem which occurred unexpectedly, which was not attributable to poor maintenance and which was not detected during routine maintenance checks, did not fall within the definition of ‘extraordinary circumstances’ for the purposes of Article 5(3) of the Regulation. This is because although it was an unexpected event, it remained intrinsically linked to the operation of the aircraft and as such was inherent in the operation of the air carrier (para 41). At paragraphs 38 and 40 the CJEU restated earlier examples of matters that it considered would be extraordinary circumstances, namely terrorism, sabotage or a hidden manufacturing defect affecting a fleet of aircraft (and not merely a single aircraft) which impinges on flight safety.
14. In Marcela Peskova and Jiri Peska v Travel Service a.s. (case C315-15) (“Peskova”), the delay was caused by a bird strike which necessitated inspection on landing. This was held by the CJEU not to constitute an extraordinary circumstance because the collision between the aircraft and bird, and the damage caused by the collision, “are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside its actual control” (at para. 24). I accept Ms Wilson-Theaker’s submission that Peskova re-affirms that the focus of the court’s enquiry, when considering whether events giving rise to a delay amount to an extraordinary circumstance, must be the source or origin of those events.
15. I am bound to follow the authorities set out above. The Appellant also relies upon two recent decisions by District Judges which do not bind me, but which Miss Wilson-Theaker submits are persuasive and asks me to follow. The first is Mikola v Ryanair DAC, a decision of District Judge Jenkinson sitting in the County Court at Liverpool on 30 June 2017. The second is Wade and Wade v American Airlines Inc, a decision of District Judge Baldwin in the same court on 27 June 2017.
16. The Respondent relies upon two decisions dealing with the interpretation of Recital 15 and which each treat a delay caused by an ATC decision as extraordinary circumstances. The first is British Airways Plc v Horstink and Snapper (“Horstink”), a decision of HHJ Graham Wood QC in the County Court at Liverpool of 15 February 2015. The second is a Scottish decision of the Sheriff Court, Dunbar v easyJet Airline Co Ltd 2015 SLT (Sh Ct) 249 (“Dunbar”).
17. In relation to Horstink, Mr Kasriel submits, and I accept, that the effect of the Supreme Court decision in Willers v Joyce and another (No 2) [2016] UKSC 44, [2016] 3 WLR 534, in which Lord Neuberger, giving the judgment of the court, considered the doctrine of precedent on courts of co-ordinate jurisdiction, means that although a decision of a fellow Circuit Judge is one that I am not technically bound to follow, I should follow it unless there is a powerful reason for not doing so. A powerful reason for not following a decision of a fellow Circuit Judge might be that I am satisfied that it is wrong in law or in the manner in which it was reached.
18. In relation to Dunbar, both Mr Kasriel and Miss Wilson-Theaker formulated their submissions on the basis that this court is not bound by Scottish decisions, which are merely persuasive.
19. In Horstink, the relevant facts were that ATC at Heathrow Airport was concerned about strong winds. Accordingly, it delayed flights in order to control the flow rate of aircraft arriving and departing. That caused a knock-on delay of some 4.5 hours to the Claimants’ flight. HHJ Graham Wood, QC relied on the wording of Recital 15 to the Regulation to hold that the Air Traffic Control decision to delay the flight constituted extraordinary circumstances. He expressly rejected the Claimants’ argument that, in cases where the delay results from an ATC decision, the court should look behind that decision and determine whether the underlying conditions are themselves extraordinary circumstances for the purposes of Article 5(3). He stated at para. 35:
“It seems to me that the obvious way in which this recital [15] should be understood is that the extraordinary circumstance is not what lies behind the air traffic control decision, but the decision itself. It would not be logical if every time a delay was caused by an air traffic control decision that enquiry had to be made as to the basis for a decision on whether it was justified or not. This would lead to potential litigation of unmanageable proportion, perhaps even creating indemnity claims for airlines where they believed that they had been unfairly and improperly held back by unreasonable air traffic control decisions. Surely this could not have been the intention of the legislators, and is the obvious justification for Recital 15.”

NoviceAngel

Continued...........

HER_HONOUR_JUDGE_MELISSA_CLARKE wrote:

20. Dunbar also related to a knock-on delay which was the effect of an ATC decision to delay a flight due to adverse weather conditions. The Sheriff found that the ATC decision constituted extraordinary circumstances, saying at para. 23:
“[23] In making my decision in this case it appears to me that there is no doubt that the underlying delay here was caused by extraordinary circumstances in that the aircraft in question could not leave Gatwick. This was because of an air traffic control decision which itself seems to have been predicated upon a number of factors. It is clear from recital 15 of the regulation referring as it does to “the impact of an air traffic management decision” that it is not for the court to look behind whether that decision was correct or not. The fact that the decision is made leading to a delay or cancellation is self-evidently “extraordinary circumstances.”


Decision of the District Judge
21. The District Judge held that the delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, and that the ATC decision to suspend all eastbound flights from LGW was entirely beyond the Respondent’s control. The Appellant for the purposes of this appeal accepts that if the court is satisfied there are extraordinary circumstances, they could not have been avoided even if all reasonable measures had been taken, and that the ATC decision was beyond the Respondent’s control. It does not seek to disturb those factual findings.
22. The District Judge summarised the parties’ positions as follows:
“[6] The fundamental difficulty I am asked to consider is whether the defence that is raised of extraordinary circumstances, which would arise under Art. 5(3) of the Regulations, is one which is covered by Recital 14 of the Regulations or Recital 15 of the Regulations.
[7] It appears agreed between counsel before me, and it was something that I discussed at a very early stage of today’s hearing, that if Recital 14 is the relevant recital it can only apply to the flight in question, whereas Recital 15 also relates to knock-on delays.
…
[17] I am asked today to accept that just because it is an air traffic management decision either, if I accept the Defendant’s case, it is one that I should not go behind or, if I accept the Claimant’s case, it is one that I should then consider and if I am satisfied that it was as a result of a circumstance which would appear under Recital 14 then the caveats of Recital 14 should apply.”
23. He considered the decision of HHJ Graham Wood, QC in Horstink which he described as “not binding; it may be persuasive”. He went on to say, from paragraph 20 onwards:
“[20] …The judge considered the appeal and the reasoning of the first instance judge and decided, in brief, that it was not open to the court to go behind the air traffic control decision. That is only a very, very brief summary of the reasoning in that case.
[21]… I am of the view that the reasoning in the judgment of His Honour Judge Wood, QC, is an accurate and proper reasoning as to the law which applies in relation to this case. I adopt what he says in relation to his decision and his grounds for allowing the appeal against the first instance decision.
[22] I am satisfied that whilst Recital 15 is not binding, it is persuasive. It cannot be right that, irrespective of Recital 15, every time there is an air traffic control decision parties are entitled to seek to go behind the fundamental reasoning for that decision. The whole purpose of these regulations is to improve customer service. Customer service cannot be prioritised over safety of flights.
[23] Air traffic control decisions, in these circumstances, are decisions which are made as to the safe working circumstances for flights to depart from an airport. It is not something that is under the control of – and quite rightly not something that is under the control of – the airlines. Otherwise the airlines may be placed in a situation where they have to do a balancing act of safety against the costs of the consequences of their decision.
[24] In those circumstances, I am satisfied that extraordinary circumstances apply in relation to this case.”
Grounds
24. The Appellant appeals on two grounds:
Ground 1 that the District Judge wrongly interpreted the test for extraordinary circumstances by (i) focusing on the management of the problem as opposed to the source of the delay; and/or (ii) applying a single test of actual control; and
Ground 2 further or in the alternative, that the District Judge wrongly applied an unduly strict interpretation of Recital 15.
25. The Appellant also asks me to consider making a reference to the CJEU on the question of the proper interpretation of Recital 15, its purpose and how to apply it to Article 5(3). Miss Wilson-Theaker submits that there is a relative paucity of authorities on these points, and they involve complex questions of European law. I will deal with this request first.
26. This request was made initially within Miss Wilson-Theaker’s skeleton argument and then orally by her at trial. The Respondent resists it. I allowed Mr Kasriel for the Respondent to file short written submissions on the point after trial, as he had little warning that such a request was to be made. Mr Kasriel makes the following submissions:
(1) The Appellant has not made a Part 23 application as required by CPR 68.2(1)(b);
(2) The appropriate resolution of this matter is perfectly clear by reference to the wording of the Regulation and existing case law. Accordingly no reference is required because “the correct application of Community law [is] so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved” (per Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3417 at para.16). That may, in itself, explain the paucity of authorities;
(3) The Respondent seeks a reference in part because of the paucity of authorities, but a reference is only required where it is necessary to resolve the issues between the parties, which is not the case in this matter;
(4) A reference would be completely disproportionate to the sums in issue, which amount to £212.79. The Respondent is entitled to finality in litigation.
27. The compelling submissions, which I accept, are (2) and (3) above. I do not consider this matter requires reference to the CJEU because I do not consider there is any reasonable doubt as to the manner in which the questions raised in this case are to be resolved, as my judgment will make clear, and I do not consider it to be necessary in order to resolve the issues between the parties. If I did consider it to be necessary, the lack of a Part 23 application would not weigh with me. Nor would proportionality, as a reference in a claim for compensation under the Regulation will always be disproportionate to the sums in issue in a particular claim, which is only ever a few hundred euros. Set against that, however, is the value of an answer by the CJEU to a vexing question under the Regulation to the disposition of thousands of other similar claims across Europe.
Submissions
28. The following is a summary of the main submissions made by Miss Wilson-Theaker for the Appellant:
(1) When considering whether there are extraordinary circumstances enabling an air carrier to avail itself of a defence under Article 5(3), the starting point is to look at the source or origin of the problem causing the delay to the Appellant’s flight (per Huzar).
(2) It is the circumstances leading to the ATC decision being made (in this case, thunderstorms over LGW) which caused the delay to the Appellant’s flight, and not the ATC decision itself (in this case, the decision to suspend eastbound flights out of LGW). The ATC decision affecting the previous leg of the Appellant’s flight was simply an attempt to manage the cause of the delay, i.e. the thunderstorms, and was not the source or origin of the problem causing the delay.
(3) Support for that contention is found in Peskova at para.34, where it was held to be the bird which hit the plane which was the origin or source of the problem which caused the delay, and not the second inspection, which was the management of the problem and not the source of it.
(4) Accordingly, HHJ Graham Wood QC in Horstink was wrong when he interpreted Recital 15 as meaning that the source of the problem in a delay involving an ATC decision was the ATC decision itself, and not the circumstances leading to the ATC decision being made.
(5) Since the source or origin of the delay is the circumstances leading to the ATC decision, in order for the air carrier to avail itself of the Article 5(3) defence, it is necessary to ‘look behind’ the ATC decision and assess whether those circumstances themselves satisfy the test for extraordinary circumstances, applying the Wallentin-Hermann two stage test of inherency and control.
(6) Accordingly, HHJ Graham Wood QC in Horstink was also wrong to explicitly reject this argument and find that the court should not look behind the ATC decision.
(7) It must have been the intention of the draftsman of the Regulation that an airline carrier should only have the benefit of the Article 5(3) defence where the circumstances behind an ATC decision are themselves assessed as ‘extraordinary circumstances’ because:
a) It cannot have been intended that Recital 15 should undermine that principle and give air carriers a derogation from paying compensation in every case where an ATC decision is made which leads to a prima facie compensable delay or cancellation under the Regulation;
b) That would tensely contrast with the broad, consumer-focussed interpretation of the derogation to pay compensation under the Regulation adopted by the CJEU and Court of Appeal in the case law to date;
c) It cannot have been intended, or be a reasonable result of a strict interpretation of Recital 15, that a circumstance such as bad weather which is not sufficiently ‘freakish’ in nature to be considered extraordinary circumstances under Article 14, becomes extraordinary circumstances merely because an ATC decision is made to which Recital 15 applies.
(8) The District Judge was wrong to adopt the reasoning of, and follow the decision of HHJ Graham Wood QC in Horstink
(9) The District Judge was wrong not to specifically consider the question: What was the source or origin of the problem causing the delay to the Appellant’s flight?
(10) If he had turned his mind to that question, the only conclusion he could properly have reached would be that the thunderstorms over LGW caused the delay, and not the ATC decision to suspend eastbound flights out of LGW.
(11) The presence of thunderstorms would be insufficient to constitute an extraordinary circumstance, as there is no evidence to suggest that they constituted ‘freak weather conditions’ (per Huzar at para 48). The evidence of the Respondent’s witness Mr Nicholas was merely that there were thunderstorms around LGW.
(12) Even if the thunderstorms around LGW were sufficient to constitute ‘freak weather conditions’, it is common ground that they did not directly delay the Appellant’s flight (there being no thunderstorms over BRU), but had a knock–on effect on it. The unchallenged finding of the District Judge at first instance that Recital 14 does not apply to knock-on delays, means the defence not should have succeeded
(13) Finally, the District Judge erred in making numerous references to ‘control’ in his judgment, applying undue weight to the ‘control’ limb of the two-limb test of inherency and control, in which inherency is the factor to which greater weight should be given.
29. Miss Wilson-Theaker acknowledged in her oral submissions that if she failed to convince me that the source or origin of the problem causing the delay in this case was the thunderstorms around LGW, and not the ATC decision, the appeal would not succeed.
Discussion and Decision
30. Mr Kasriel’s primary submission is that Willard v Joyce (No 2) provides a full answer. The decision of HHJ Graham Wood QC in Horstink considers and rejects the two main planks of the Appellant’s arguments before me, by his interpretation of Recital 15. As a decision of a judge of co-ordinate jurisdiction to my own, although not technically binding, I should follow it unless there is a powerful reason not to.
31. Mr Kasriel accepts that a powerful reason not to follow it would be if the decision was wrong. He submits that it is not, and I respectfully agree, for the following reasons.
32. In my judgment the wording of Recital 15 gives clear guidance to the interpretation of Article 5(3) that:
(1) it is a matter of fact for the court to determine whether ‘the impact of an air traffic management decision’ in relation to a particular aircraft on a particular day ‘gives rise to’ a long delay;
(2) if it does, then extraordinary circumstances should be deemed to exist, so long as all reasonable measures had been taken by the air carrier to avoid the delay.
33. Taking the natural meaning of the words of the Recital, it must, in my judgment, be interpreted to mean that where an ATC decision gives rise to a delay, the source or origin of the problem causing the delay is the ATC decision itself. It is the ‘impact’ of that decision which ‘gives rise to’ the delay. I find myself unable to stretch or strain the natural meaning of those words to reach an interpretation which supports the Appellant’s contention that the source of the delay is instead the underlying circumstances leading to the ATC decision.
34. I do not find support in Peskova for the Appellant’s argument that the ATC decision is merely management of the source of the problem and not the source of the problem itself. In Peskova the discussions at para 34 related to management by the air carrier of the consequences of the source of the problem (namely a bird strike) by means of arranging for a second safety check after a first one had been completed satisfactorily. The management by the ATC of the airspace for which it is responsible is a matter of an entirely different nature which cannot, in my view, be brought within the ratio of Peskova. In addition, in Peskova, this discussion centred on whether all reasonable measures had been taken by the carrier. In this case, the District Judge found that the Appellant had taken all reasonable measures, and that finding has not been appealed.
35. I accept Mr Kasriel’s submission that if the Appellant’s contentions are correct - that the source of delay in an ATC case is the underlying circumstances leading to the ATC decision, which must themselves as be assessed ‘extraordinary circumstances’ pursuant to Recital 14 - then there would be no purpose to Recital 15 at all. There would be no reason to consider delays in which there was an intervening ATC decision any differently from delays caused by any other circumstance. The draftsman could have simply included ATC decisions within Recital 14. He did not do so. I cannot accept an interpretation of Recital 15 which strips it of purpose, particularly when the CJEU has considered Recital 15 together with Recital 14 in a number of cases, including Wallentin-Hermann, Sturgeon v Condor and Peskova, without suggesting that it had no purpose.
36. In my judgment, the fact that Recital 15 exists must mean that the draftsman of the Regulation intended that long delays arising from ATC decisions should be treated differently from those arising from other circumstances, to which the guidance in Recital 14 applies. That different treatment is found in the deeming provisions of Recital 15: extraordinary circumstances should be deemed to exist (so long as all reasonable measures had been taken by the air carrier to avoid the delay).
37. Both Counsel agree that this falls short of a statutory deeming provision, being found in a non-binding Recital, and I accept that is correct. However use of the word ‘should’, although not mandatory, is more prescriptive than ‘may’ for example, and it is the same word used in the closely followed guidance at the beginning of Recital 14: “obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”. In my judgment, that deeming provision is equally powerful guidance that in circumstances where Recital 15 applies, the ATC decision is itself deemed to be ‘extraordinary circumstances’ for the purposes of Article 5(3), without any need for further consideration of the two-limb Wallentin-Hermann test of inherency and control.
38. I do not accept the Appellant’s submissions that such an interpretation undermines the policy of the Regulation to compensate consumers. Those consumers are all passengers and passenger safety must be paramount. It ensures that ATC decisions remain beyond question by air carriers, who must follow them. It removes any tension between safety and the costs consequences of a long delay or cancellation arising from an ATC decision. It avoids an unbearably heavy burden on ATCs across Europe from having to explain and evidence the reasons for their decisions for the purposes of claims brought under the Regulation.
39. These are the conclusions also reached by HHJ Graham Wood, QC in Horstink. For those reasons I do not consider that Horstink is wrong. As there is no other powerful reason for me not to follow it, I do follow it. For that reason I do not go on to consider the other non-binding judgments of District Judges which each counsel rely on. The Scottish case of Dunbar is persuasive only and accords with Horstink.
40. The inevitable consequence is that I do not consider that District Judge Richard Clarke, who also agreed with and adopted the reasoning of HHJ Graham Wood, QC in Horstink, was wrong to do so. The other criticisms of the District Judge necessarily fall away. I dismiss the appeal.

The above case is going to be heard in the Court of Appeal early next year.

NoviceAngel

borax wrote: »

I traveled from Toulouse to UK on EZY5140 Friday 20th April which was delayed by about 8h45 minutes late.
Easyjet rejected my claim on the basis that an earlier flight had to divert due to fog. Whilst this contributed some of the delay. There was a second issue due to a problem with the first officers oxygen bottle which compounded the problem. The flight out to toulouse was 4 hours 9 minutes late when it landed. We then boarded the plane only for the pilot to decide that it was unservicable and everyone disembarked to wait for another aircraft (adding more than 4 hours to the delay)

Two questions- 1) would the problem with an aircraft be a cause for a claim
2) What do the regulations say about claims caused by multiple factors

Thanks

I think your post got missed , before we digress and discuss the above appeal

1 Depends - Normally it would be unless it was a 'hidden manufacturing defect.'

2 They don't really address this issue as long as you can prove that your flight was delayed by a non EC event then you can claim.

Start by reading Vaubans excellent guide, you'll understand better then, link in my signature.

JPears

Interesting (although I almost fell asleep going through the detail)
Botts clerly think they have a case for the CoA
And probably many many backlogged cases that could open up for them if found in favour.
The 261/2004 story unfolds further