Huzar appeal

batman44

Here is Aviation law's thinking on the Huzar appeal, a little arrogant if you ask me. lets hope Bott & Co can do thousands justice. They should pay up in the first place or the there should be a deffinative on EC's. There is also an article by another law firm about the NEB's Guidelines, again the thinking is this is some kind of legal thing that should be taken into concideration.

AV Law

Introduction
Low cost carrier Jet2.com Limited is set to appeal a decision from the Manchester County Court which purports to redefine the defence available to airlines pursuant to Article 5(3) of EC Regulation 261/2004[URL="file:///C:/Users/Danielle/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/KYHHYOXQ/Ronald%20Huzar%20v%20Jet2%20com%20Limited%20-%20Appeal.doc#_ftn1"][1][/URL]. The appeal concerns a single issue of law important to the availability of the “extraordinary circumstances” defence provided by article 5(3) of Regulation 261, namely whether delay due to an unexpected, unforeseen and unforeseeable technical problem can amount to an “extraordinary circumstance” for the purposes of the defence provided by that article.
Article 5(3) of Regulation 261/2004 provides that:

“An operating 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“.

The interpretation of Article 5(3) has been the subject of a number of cases such as Wallentin-Hermann v Alitalia[URL="file:///C:/Users/Danielle/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/KYHHYOXQ/Ronald%20Huzar%20v%20Jet2%20com%20Limited%20-%20Appeal.doc#_ftn2"][2][/URL] and Eglitis v Air Baltic[URL="file:///C:/Users/Danielle/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/KYHHYOXQ/Ronald%20Huzar%20v%20Jet2%20com%20Limited%20-%20Appeal.doc#_ftn3"][3][/URL] which have attempted to clarify the language of the Regulation. Following the ECJ’s decisions in these cases, it was established that the article 5(3) defence has two limbs, namely: (1) cancellation (or qualifying long delay) caused by extraordinary circumstances (2) which could not have been avoided even if all reasonable measures had been taken. Article 5(3) is the only defence available to a carrier in respect of a claim for compensation pursuant to article 7 of Regulation 261 in the case of a cancellation or a qualifying long delay.
Background
Mr Huzar’s claim was based on a flight from Malaga – Costa del Sol Airport (AGP) to Manchester Airport (MAN) on 26 October 2011. Flight LS810 was scheduled to depart Malaga at 18.25 hrs (local time) and arrive at Manchester Airport at 20.25 hrs (local time) the same day. While the Aircraft was in-flight en-route to Malaga on 26 October 2011, the flight crew reported that the left engine fuel valve ‘closed’ advisor light became illuminated, recording a discrepancy between the selected state of the valve and its actual state indicating a defect in the fuel shutoff valve. Valves are installed in the fuel system to provide a means for shutting off the fuel flow for tank and engine selection, cross- feed and for fuel transfer.
On this basis, Jet2.com arranged for a replacement part to be ready at AGP when the flight landed. However, on arrival, and once the replacement part fitted, it was discovered that this did not rectify the issue. Further investigation confirmed that there was a wiring defect in the fuel valve circuit and the wiring between the fuselage pressure seal and the valve needed to be replaced. Given that there was no available spare wiring at AGP, replacement wiring along with a specialist engineer were dispatched from the Leeds Bradford hanger. Following rectification of the issue, and once functionality checks had been performed the aircraft was declared serviceable at 18.10 hrs (UTC) on 27 October 2011. As a result the flight suffered an arrival delay of circa 27 hours. The random failure of wiring to the fuel valve was both unforeseeable and unexpected. Further, as the technical defect only became evident in-flight en-route to AGP, it was something entirely outside Jet2.com’s control.
The Appeal
The claim made by Mr Huzar was dismissed by District Judge Dignan on 10th June 2013 on the basis that Jet2.com was held to have made out a defence under article 5(3) of the Regulation. Mr Huzar appealed against that decision, however, the only point proceeded with by Mr Huzar concerned the satisfaction of the “extraordinary circumstances” limb. At the hearing, His Honour Judge Platts held that “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”. Accordingly, he allowed the appeal and entered judgement for Mr Huzar. The Court effectively classified the “extraordinary circumstance” as being the resolution of the technical problem rather than the technical fault itself. It was held that once a technical problem is identified it is inherent in the normal activity of the air carrier to have to resolve such technical problems and that the resolution of the problem is within the control of the carrier.
It is also disappointing that the appellant Court dismissed the relevance of the EU National Enforcement Bodies’ (NEBs) guidance as to those circumstances which could be considered as extraordinary. The list was collaboratively published by the NEBs in April 2013. The Court justified its approach based on the unclear provenance of the NEB list and the status of the NEBs not being part of the legislature.
The effect of the ruling is that a carrier can never invoke a defence under article 5(3) of Regulation 261 in a case of a qualifying long delay or cancellation caused by a technical problem. It is obvious that the interpretation adopted by the Court in this case is different to that established in the ECJ cases of Wallentin v Alitalia and Eglitis v Air Baltic. If this rationale is followed by the airlines when assessing claims of this nature the vast majority of technical faults would be excluded from the remit of Article 5(3) of the Regulation.
Jet2.com considers that the learned Judge erred in law in holding that a delay caused by the resolution of an unexpected, unforeseen and unforeseeable technical problem cannot amount to an “extraordinary circumstance” for the purposes of article 5(3) of the Regulation. Also, the learned Judge erred in holding that it is the consequences (i.e. resolution) of a technical problem and not the problem itself that must be considered in determining whether a delay or cancellation is caused by “extraordinary circumstances”. Further, the interpretation that it is irrelevant how the technical problem was identified or that it was unexpected and unforeseeable is also incorrect.
The ruling in Wallentin-Hermann supports the conclusion that Regulation 261 must be taken to have intended that an “extraordinary circumstances” defence can be available in some cases of technical problems:

“Article 5(3)…must be interpreted as meaning that 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“.

The corollary of this ruling is that a technical problem that does stem 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 is covered by the concept of “extraordinary circumstances”. In Sturgeon[URL="file:///C:/Users/Danielle/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/KYHHYOXQ/Ronald%20Huzar%20v%20Jet2%20com%20Limited%20-%20Appeal.doc#_ftn4"][4][/URL]it was accepted that this ruling applied equally to cases of a technical problem which leads to a qualifying long delay.
It further follows from the ruling in Wallentin-Hermann that the determining factor for the availability of the “extraordinary circumstances” defence hinges upon consideration of the cause of the specific technical problem experienced, i.e. the events from which it stems, not on its resolution.
For the above reasons Jet2.com considers that the learned Judge was wrong to hold that under article 5(3) the focus should be on the consequences of the technical problem, rather than the cause of that problem. This is contrary to the binding ruling in Wallentin-Hermann.
Since this is a second appeal it can only be brought with permission of the Court of Appeal and it will not give permission unless it considers that the appeal raises an important point of principle or practice that has not yet been determined. Jet2.com considers that this requirement is met in the current context as the appeal raises an important point of principle that has not yet been determined concerning the defence provided by article 5(3) of Regulation 261. Further, there is no English jurisprudence of precedential value on this point and it is not answered directly by any decision of the Court of Justice of the European Union.
The practical significance of this issue to carriers is also confirmed by the fact that it is one which affects a number of small claims which are pending in a number of County Courts. Also, due to the wide application of Regulation 261 and the considerable potential reach of its article 7 compensation obligation, the matter is of major importance to carriers.
It is clear that the Court’s interpretation in Mr Huzar’s case differs significantly to that established in previous cases, such as Wallentin-Hermann and Eglitis. It is anticipated that Jet2.com will be granted permission to bring this second appeal. If Jet2.com’s appeal is allowed this will mean that the District Judge’s dismissal of Mr Huzar’s claim will be restored. The Court of Appeal’s decision, which is binding on English Courts, will bring clarity to the availability of the “extraordinary circumstances” defence provided by article 5(3) of the Regulation.


[URL="file:///C:/Users/Danielle/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/KYHHYOXQ/Ronald%20Huzar%20v%20Jet2%20com%20Limited%20-%20Appeal.doc#_ftnref1"][1][/URL] Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, OJ L46/1 of 17-2-2004.

[URL="file:///C:/Users/Danielle/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/KYHHYOXQ/Ronald%20Huzar%20v%20Jet2%20com%20Limited%20-%20Appeal.doc#_ftnref2"][2][/URL] Case C-549/07 Frederike Wallentin -Hermann v Alitalia – Linee Aeree Italiane SpA – ECJ’s judgment of 22 December 2008.

[URL="file:///C:/Users/Danielle/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/KYHHYOXQ/Ronald%20Huzar%20v%20Jet2%20com%20Limited%20-%20Appeal.doc#_ftnref3"][3][/URL] Case C-294/10 Andrejs Eglitis and Edvards Ratnieks v Latvijas Republikas Ekonomikas ministrija – ECJ’s judgement of 12 May 2011.

[URL="file:///C:/Users/Danielle/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/KYHHYOXQ/Ronald%20Huzar%20v%20Jet2%20com%20Limited%20-%20Appeal.doc#_ftnref4"][4][/URL] Joined Cases C-402/07 and C-432/07 Christopher Sturgeon and Others v Condor Flugdienst GmbH and Stefan Böck and Cornelia Lepuschitz v Air France SA CJEU’s judgementof 19 November 2009.

Kennedys law

In the Jet2 case, the appellant judge adopted a new interpretation of Article 5(3).
The learned judge quite rightly identified that the consequences of the
extraordinary circumstance were a key factor. But, the court went further and
completely disregarded the causative event (being the defective fuel valve circuit).
The court effectively classified the causative event (the extraordinary
circumstance) as being the resolution of the technical problem, rather than the
technical fault itself. With this in mind, the court went on to dismiss the relevance
of expectation and foreseeability of the fault. The court held that once a technical
problem is identified, it is inherent in the normal activity of the air carrier to have
to resolve such technical problems and that the resolution of the problem is
entirely within the control of the carrier.
Clearly, the interpretation proffered in this case differs somewhat to that
established in Wallentin and Eglitis. If carriers adopt this rationale when assessing
claims of this nature, most, if not all, technical faults would be excluded from the
umbrella of Article 5(3).
Aside from this proposition not sitting well with the previous decisions of the ECJ,
it is clearly not a view shared by the EU National Enforcement Bodies tasked with
enforcing the Regulation. In April 2013, the NEBs collaboratively published
guidance as to those circumstances which could be considered as extraordinary.
This guidance has, broadly speaking, been well received by stakeholders, offering
some clarity to an otherwise muddy pool. The NEB guidance had been considered,
against these same facts, in two other cases and deemed to be persuasive.
Many carriers will find it disappointing that the appellant court dismissed the
relevance of the guidance, particularly given the emphasis placed upon the
guidance, by the NEBs, when dealing with consumer complaints. The court justified
its approach based on the unclear provenance of the guidance and the status of the
NEBs, not being part of the legislature.
In the days following this judgment, claims companies and pro-consumer groups
have gone to great lengths to publicise the decision. In assessing the impact of this
judgment, we are reminded that this was a County Court decision, which is not
afforded the status of binding precedent. That said, many county courts, in
subsequent cases, have shown a willingness to respect the findings of a Circuit
Judge and follow this judgment.
This case represents a clear departure from previous schools of thought. Whilst it
is not a case binding on the county courts, where most of these types of cases are
heard, it does present a significant hurdle to be overcome. Absent any clear
intention to appeal the decision, it would appear that a skilled navigation through
the Wallentin and Eglitis judgments will be needed to highlight the flaws in the
reasoning of this court and persuade a future county court judge to depart from
this decision.

batman44

I think they forgot to mention that the NEB Guidelines had NO input from passenger groups, or that out of 30 instances only 5 actually helped the passengers and that the Guidelines were revised after a complaint from one of out friends on here, whoo it makes me mad.:mad:

Aside from this proposition not sitting well with the previous decisions of the ECJ,it is clearly not a view shared by the EU National Enforcement Bodies tasked with
enforcing the Regulation. In April 2013, the NEBs collaboratively published
guidance as to those circumstances which could be considered as extraordinary.
This guidance has, broadly speaking, been well received by stakeholders, offering
some clarity to an otherwise muddy pool. The NEB guidance had been considered,
against these same facts, in two other cases and deemed to be persuasive.
Many carriers will find it disappointing that the appellant court dismissed the
relevance of the guidance, particularly given the emphasis placed upon the
guidance, by the NEBs, when dealing with consumer complaints. The court justified
its approach based on the unclear provenance of the guidance and the status of the
NEBs, not being part of the legislature.

David_e

batman44 wrote: »

... a little arrogant if you ask me.

A little? Full on brass neck, if you ask me!


"If carriers adopt this rationale when assessing claims of this nature, most, if not all, technical faults would be excluded from the umbrella of Article 5(3)."

... which the BATA already knew, per their letter of December 2009 to the then Transport Minister.


" ... NEBs collaboratively published guidance ...."

They say collaboration; some might regard it more as conspiracy! Did any consumer groups join the collaboration?


" ... the court went further and completely disregarded the causative event (being the defective fuel valve circuit)."

Quite correctly so. As well all know very well, Wallentin requires the court to determine whether the problem " ... stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned ...". The "causitive event" in the Huzar case was entirely "inherent ...".


“It is clear that the Court’s interpretation in Mr Huzar’s case differs significantly to that established in previous cases, such as Wallentin-Hermann …”.

I don’t agree.


"If Jet2.com’s appeal is allowed …. The Court of Appeal’s decision, which is binding on English Courts, will bring clarity to the availability of the ‘extraordinary circumstances’ defence provided by article 5(3) of the Regulation.”

If that happens it will almost completely subvert the clearly stated intention of the Regulation.


“The court justified its approach based on the unclear provenance of the guidance and the status of the NEBs, not being part of the legislature.”

Which the CAA Chief Executive’s recent letter basically echoes: “ultimately, only the courts can decide definitively on the correct interpretation of the extraordinary circumstances exemption …”.

batman44

David_e wrote: »

A little? Full on brass neck, if you ask me!


"If carriers adopt this rationale when assessing claims of this nature, most, if not all, technical faults would be excluded from the umbrella of Article 5(3)."

... which the BATA already knew, per their letter of December 2009 to the then Transport Minister.


" ... NEBs collaboratively published guidance ...."

They say collaboration; some might regard it more as conspiracy! Did any consumer groups join the collaboration?


" ... the court went further and completely disregarded the causative event (being the defective fuel valve circuit)."

Quite correctly so. As well all know very well, Wallentin requires the court to determine whether the problem " ... stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned ...". The "causitive event" in the Huzar case was entirely "inherent ...".


“It is clear that the Court’s interpretation in Mr Huzar’s case differs significantly to that established in previous cases, such as Wallentin-Hermann …”.

I don’t agree.


"If Jet2.com’s appeal is allowed …. The Court of Appeal’s decision, which is binding on English Courts, will bring clarity to the availability of the ‘extraordinary circumstances’ defence provided by article 5(3) of the Regulation.”

If that happens it will almost completely subvert the clearly stated intention of the Regulation.

I fully concur with all you sentiments...:T

111KAB

Ombudsman will determine soon.


http://www.ombudsman.europa.eu/en/cases/caseopened.faces/en/51767/html.bookmark


Too late to 'like' now and a little disappointing only 22 people 'liked'.

David_e

" ... NEBs collaboratively published guidance ...."

Actually, the CAA Chief Executive’s recent letter says :“The list of extraordinary circumstances agreed by the 7 NEBs was presented to all NEBs …”.

So it doesn't even appear that this was the work of all, or possibly even a majority of, NEBs!

What price democracy and transparency?!

Vauban

batman44 wrote: »

Kennedys law

The court effectively classified the causative event (the extraordinary circumstance) as being the resolution of the technical problem, rather than the technical fault itself. With this in mind, the court went on to dismiss the relevance of expectation and foreseeability of the fault. The court held that once a technical
problem is identified, it is inherent in the normal activity of the air carrier to have to resolve such technical problems and that the resolution of the problem is entirely within the control of the carrier.

There is a legal argument to be made over whether the resolution of the technical fault or the occurrence of it is the causative event of the delay. However, Kennedy's appear to be tying the concepts of "expectation and foreseeability" to "inherence" (the key Wallentin test) - which is not really right, IMHO.

To borrow the tired car analogy, the risk of mechanical breakdowns are inherent in running a car. I can anticipate that the car may one day break - which is why I submit it to regular maintenance. But if the car breaks despite my best efforts, this is still a phenomenon inherent in the business of running a car. The fact that I did not predict or anticipate the specific failure on a specific day is immaterial. The parallels with aircraft are obvious.

Am I making sense, or have I just muddied the waters?

CobyBenson

Vauban wrote: »

There is a legal argument to be made over whether the resolution of the technical fault or the occurrence of it is the causative event of the delay. However, Kennedy's appear to be tying the concepts of "expectation and foreseeability" to "inherence" (the key Wallentin test) - which is not really right, IMHO.

To borrow the tired car analogy, the risk of mechanical breakdowns are inherent in running a car. I can anticipate that the car may one day break - which is why I submit it to regular maintenance. But if the car breaks despite my best efforts, this is still a phenomenon inherent in the business of running a car. The fact that I did not predict or anticipate the specific failure on a specific day is immaterial. The parallels with aircraft are obvious.

Am I making sense, or have I just muddied the waters?

I couldn't agree more.

Single best explanation of the Wallentin test that I have ever read, go Vauban!

David_e

Vauban wrote: »

Am I making sense, or have I just muddied the waters?

I think you are making sense - but then that may be my problem!

I agree 100% with your analogy. The more I have read Wallenin, the more I realise how relatively straightforward the basic principle is: "If the problem arose from the normal business of operating an aircraft, it's not EC."

As you say introducing "expectation and foreseeability" is just wrong.

batman44

It fits perfect Vauban, the overview given by the mentioned travel law solicitors is mainly aimed at the airline defence companies and not at the likes of us mear individuals, this goes to show how things can be wisted to fit as you might say. I reccon this is what the denfence will be when the appeal is concidered. Introducing something else into the melting pot in the hope it gets lost and away from the wallentin test, thus confusing the judge and then finding in favor, lets hope not and it's good to know Coby is following this very carefully. Why not take our saviour with a nice hat Vauban with you Coby? lol

I think I can use this in my bundle

There is a legal argument to be made over whether the resolution of the technical fault or the occurrence of it is the causative event of the delay. However, Kennedy's appear to be tying the concepts of "expectation and foreseeability" to "inherence" (the key Wallentin test) - which is not really right, IMHO.

To borrow the tired car analogy, the risk of mechanical breakdowns are inherent in running a car. I can anticipate that the car may one day break - which is why I submit it to regular maintenance. But if the car breaks despite my best efforts, this is still a phenomenon inherent in the business of running a car. The fact that I did not predict or anticipate the specific failure on a specific day is immaterial. The parallels with aircraft are obvious.

Once again vauban comes up with the goods, thank god!