CAA and exceptional circumstances 29 May 2013 at 9:46PM in Flight delay compensation 2 replies 1.5K views

zacchaeus_2

I thought some of the regulars may be interested in the substantive response I received today from the CAA to a submission I made to them in January this year, regarding an airline's exceptional circumstances defence. The claim relates to the cancellation of a UK domestic flight last year.

Sorry for the length of the post but, in short, the CAA believes that the airline "has a strong case not to pay compensation".

The only information I have received from the airline regarding the reason for the cancellation was that "the aircraft scheduled to operate this service had an unexpected fault with the aircrafts [sic] engine temperature gauge and unfortunately in the interests of safety there was no option but to cancel this service".

The crux of my email to the CAA was as follows:

The airline has, to date, provided me with only very limited detail as to why they consider these circumstances to fall within Article 5(3). In particular, they have not provided with me with:
- confirmation of whether or not they agree with my comments on Article 5(3), nor details of their reasoning if they disagree,
- details of the circumstances that let to the cancellation, other than the sentence quoted above re the engine temperature gauge, which was in the airline's email,
- an explanation of why the company considers that these circumstances fall within Article 5(3), nor
- any evidence to support this contention.

I therefore do not believe that the airline has discharged its burden of proof in respect of Article 5(3) and, given the lack of information that has been made available to me, it is impossible for me to reach a conclusion on the legitimacy of their contention that this provision is applicable. I would therefore be grateful if you could provide an opinion on whether Article 7 applies in this case. I would also be grateful if you could advise of my options for obtaining evidence to test the airline's assertion that Article 5(3) is at issue should it be necessary for me to pursue this matter formally.

I had also noticed that the CAA website's information on exceptional circumstances appeared to be at odds with the legal authorities, particularly Wallentin-Herman. I therefore included a supplementary question in my email to the CAA:

CAA website commentary on "Extraordinary Circumstances"

I would be grateful if you could provide as much explanation as possible in your response. In particular, I note with interest your web page that discusses "Extraordinary Circumstances". My understanding of the regulation (as clarified by, for example, Advocate General Sharpston in her Opinion on the Kramme v SAS Sandinavian Airlines case) is that Article 5(3) imposes a two-part test (once the cause of the cancellation has been established), and requires the air carrier to demonstrate that:
- the circumstances that caused the cancellation were "extraordinary" and
- those circumstances "could not have been avoided even if all reasonable measures had been taken".
Your web page, however, seems to deal only with the second of these. Indeed, it includes the sentence "Despite the word extraordinary, it does not necessarily mean it is a rare event, it just has to be outside of the airline's control". This would seem to imply that the only test is whether the circumstances are outside of the airline's control, which appears to be at odds with both the Kramme opinion and the ECJ's judgements in the Wallentin-Hermann and Sturgeon cases.

Furthermore, I note your inclusion of the following sentence: "We have found that we consider the delay or cancellation to be outside of the airline's control in the majority of cases reviewed". This sentence again touches on my point in the previous paragraph because it appears to cover only one of the tests in Article 5(3), but I also find it surprising given more general comments made about this provision in the legal authorities (although "the majority" to which you refer may of course be a reflection of the nature of the cases that tend to be referred to you). In her Kramme opinion, for example, Advocate General Sharpston stated that it "seems particularly appropriate to interpret Article 5(3) narrowly" and that "as a derogation from the right to compensation, it should be interpreted restrictively". These comments are consistent with the ECJ's findings in Wallentin-Hermann and Sturgeon regarding the limited range of aircraft technical issues that constitute extraordinary circumstances.

Although I acknowledge that these may be somewhat subsidiary points, I would be grateful if you could explain how your statements on the above web page can be reconciled with the relevant legal authorities, particularly if you find in favour of the airline on the grounds that events were outside of its control.

The reply I received today from the CAA was as follows:

Thank you for your patience with us while we investigated your complaint about the cancellation of flight X on DATE. During our investigation we received information from the airline about the flight concerned, which we have considered in the light of guidance from technical aviation experts from our Safety Regulation Group, who have wide-ranging expertise in aircraft engineering and flight operations.

After considering all the evidence available to us, it is our view that the cancellation of flight X is of a type which means that the airline does not need to pay compensation. It appears from the documentation provided that there was a type of systems failure which means that, under these specific circumstances, the cancellation was beyond the control of the airline and could not have been avoided. It is our view therefore that this cancellation falls under the ‘extraordinary circumstances ’ exception of EC261/2004 (the Denied Boarding Regulations). As such, it is our view that you are not entitled to compensation in this case.

Unfortunately we are unable to take your case any further on the compensation part of your claim. Our view that, in this case, the cancellation was due to extraordinary circumstances is based on the evidence provided to us. It is not legally binding on the airline and only relates to the flight concerned. I understand that this may be disappointing for you. You do still have the option of going to county court but, in our view, we believe that the airline has a strong case not to pay compensation and, as such, it is for you to decide whether you wish to pursue this further. You can find information on how to take court action at www.hmcourts-service.gov.uk or you could contact your local library or Citizens’ Advice Bureau.

It is disappointing that they haven't even acknowledged my question about their interpretation of the meaning of exceptional circumstances. I hold out some hope that "we are unable to take your case any further on the compensation part of your claim" may mean that they are going to reply separately on that question, but I don't hold out much hope. I'll probably give them a call to check whether any further comment is going to be forthcoming. If none is, I'll think about whether to lodge a complaint for them having entirely disregarding half of my email and/or use Freedom of Information to try to establish their policy on this point of law.

I am also intrigued by the passage: "we received information ... which we have considered in the light of guidance from technical aviation experts from our Safety Regulation Group". My reading of this is that the Safety Regulation Group didn't look at my case (and presumably do not look at individual cases), but have at some point in the past produced generic guidance on this subject which the complaints handling people use. I wonder if it would be possible to get this guidance released under FOI (particularly given the CAA's response to point 4 of someone else's FOI request last month!).

Then I just need to make my mind up whether to take it to small claims, I suppose...

JPears

Interesting observations and points raised.
What the CAA are quite clearly missing is the WHOLE point of Reg EC 261/2004 - that being the attempt to reduce the unacceptable delays, cancellations and denied boardings suffered by the general travelling public, at the hands of the airlines. Clearly the compensation is, as a stick, aimed at encouraging the airlines to reduce delays/canc and DBs by improving their services. This regulation has been in effect for 8 years now and airlines have done nothing to improve their customer services in that time and continue to try to evade their responsibilties by fighting the majority of cases.
It is apparent that the CAA are not on the side of the consumer, why would they be when their pay (and senior staff) all come direct from the airlines themselves?

Mark2spark

The more I read, the more I'm convinced the CAA are a waste of time.
The Wallentin ruling was based on a fairly major engine fault, yet *that* wasn't counted as an EC?