Huzar appeal

batman44

The dutch case in question,-

Preliminary rulings are essentially a way of maintaining the uniform application of Community law within states. Preliminary rulings are cases which begin and end in national courts. Article 234 lays down a procedure which enables national courts to refer to the ECJ questions of community law which are known as a ‘reference’. National courts can ask for clarification on what exactly should be understood by a particular Treaty or act of an institution. The prelimary ruling procedure is only needed if there is doubt over the outcome and if it cannot be resolved at a lower court level. Although the case is brought to the ECJ, the final outcome of the case is decided by the national courts.

Jet2.com v Huzar has been decided at UK National Level. In fact if anything they should be accepting the UK case in question (Huzar) and put it before the dutch court as a decision relevent to the dutch case.

Do you really think the dutch courts will be taking UK law decisions and put case's on hold pending our cases? No and visa versa, simples.

In other words this has already been clarified in Wallentin by the ECJ and has no bearing on UK law or decisions. They will get the same answer back from the ECJ that the question has been answered in Wallentin/Sturgeon etc.

[FONT=&quot]Protest against any request for further stays and mention Jet2.com are behaving unreasonably.
[/FONT]

NoviceAngel

Ok, very DRAFT but here it is so far......

All criticisms and help welcome......

- and -

JET2.COM LIMITED Defendant

__________________________________________________________________

OBJECTION TO APPLICATION NOTICE BY THE DEFENDANT

__________________________________________________________________

I the claimant make the following objection to my case being further stayed for the following reasons:

1. It is accepted that the Defendant is denying compensation due to the fact that the Defendant is claiming an ‘extraordinary circumstance’ lead to the delay of flight ****.
2. It is accepted that an appeal was heard in the Manchester County Court before His Honour District Judge Platts (Case number: 2YN76991, Appeal ref: M13X134) between Ronald Huzar the Claimant and Appellant and Jet2.com the Defendant and the Respondent.
3. The Learned Judge, His Honour Judge Platts was very clear, concise and considered when making his judgement. He stated the following:

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.
4. The Defendant states that ‘the Court of Appeal can be expected to bring much-needed clarification to the proper interpretation of Article 5(3) of the Regulation.
5. The Court of Appeal has now heard the case and the airline was formally denied leave to appeal. Lord Justice Elias made the following comments:

46. In my judgement, therefore, for all these reasons the appeal fails even on the assumption that the concept of extraordinary circumstances should be defined by reference to a single composite test and not two distinct conditions. If the appellant is right about there being a single composite test, then in my judgement it is essentially as the respondent described it. The second limb will take its meaning from the first rather than vice versa. The event causing the technical problem will be within the control of the carrier if it is part of the normal everyday activity which is being carried on and will be beyond the carrier's control if it is not..
50. Accordingly, in my view HH Judge Platts was right to say that the extraordinary circumstances defence did not apply, albeit that I respectfully disagree with his reasoning. I would dismiss the appeal.
Lady Justice Gloster:
I agree.
Lord Justice Laws:
I also agree.
6. The Defendant refused to accept the decision of the Court of Appeal and subsequently appealed to the Supreme Court for permission to Appeal the Court of Appeals decision. This application was formerly denied on the 31st October 2014 for the following reason :’ The substantive text of the Supreme Court's Order reads as follows:
‘The Court ordered that permission to appeal be refused in Thomson because the application does not raise an arguable point of law; [and] permission to appeal be refused in Jet2.com because the application does not raise a point of law of general public importance and, in relation to the point of European Union law said to be raised by or in response to the application, it is not necessary to request the Court of Justice to give any ruling, because the Court's existing jurisprudence already provides sufficient answer.
7. It is my submission that the Defendant has now found a local Court case in Amsterdam, which in my opinion has no relevance whatsoever in UK Law, The Supreme Court has ruled on the decision, the Supreme Courts decision should be final and be upheld as such.

8. It is also my submission that The EU directive 261/2004 is for member states to decide via the law of the land of that state, and to be interpreted as such, no other country, cannot be overruled by any other pending case in some other country, if that was the case then the whole justice system would be halted with every lawyer or barrister putting case's on hold pending other cases pending in another EC state.

Like other final courts, the UK Supreme Court is, in the areas of European law in which the United Kingdom has accepted the jurisdiction of the Court of Justice of the European Union (CJEU), under the duty imposed by Article 267 of the Treaty on the Functioning of the European Union to ask the CJEU to give preliminary rulings concerning:

1. the interpretation of the Treaties; and
2. the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised in proceedings before it and it considers that a decision on the question is necessary to enable it to give judgment.
Where an application for permission to appeal raises such a question, the UK Supreme Court does not, when considering whether in the light of that question to grant permission or to make a reference to the CJEU, apply a test of whether the question is of general public importance.
The Supreme Court of the United Kingdom is a member of the Network of the Presidents of the Supreme Judicial Courts of the European Union.
Preliminary rulings are cases which begin and end in national courts. Article 234 lays down a procedure which enables national courts to refer to the ECJ questions of community law which are known as a ‘reference’. National courts can ask for clarification on what exactly should be understood by a particular Treaty or act of an institution. The preliminary ruling procedure is only needed if there is doubt over the outcome and if it cannot be resolved at a lower court level. Although the case is brought to the ECJ, the final outcome of the case is decided by the national courts.


9. The UK Civil Aviation Authority issued this press release on the 31st October 2014.
Andrew Haines, Chief Executive of the CAA, said:
“We acknowledge airlines’ concerns about the proportionality of the flight delay regulations and recognise that airfares may increase as a result. However, the court’s decisions in these cases bring legal clarity to this issue and we now expect airlines to abide by them when considering claims.”

This is also important information for anyone who has made a claim for flight delay compensation but is waiting for a decision pending the outcome from Supreme Court. Following the decisions in these two cases, airlines should not continue to put claims on hold. Where airlines have already put claims on hold, the CAA expects airlines to revisit them and pay compensation for any eligible claims.
10. I believe that the Defendant is acting entirely unreasonably and should now accept the decision of the Spanish AESA who ruled in my case on the 4th July 2013, subsequently the Court Of Appeal that ruled on the Huzar case, the Supreme Court and the UK Civil Aviation Authority.

For all the above reasons I do not believe that my case should be stayed in the Court system and wish for the Defendants application to be refused.

******* I appreciate the formatting is incorrect as above this is just a copy & paste issue into the forums software - it looks better in Word format. *******

JPears

"4. The Defendant states that ‘the Court of Appeal can be expected to bring much-needed clarification to the proper interpretation of Article 5(3) of the Regulation.
Perhaps add "on record as stating" and cite/reference the quote with date and place?
State more clearly that the Dutch case has no bearing on your particular claim? (obviousley only if it doesn't )

NoviceAngel

JPears wrote: »

"4. The Defendant states that ‘the Court of Appeal can be expected to bring much-needed clarification to the proper interpretation of Article 5(3) of the Regulation.
Perhaps add "on record as stating" and cite/reference the quote with date and place?

Ironically it was Jet2s own solicitors that stated that in their application to the Court in my case to have my case 'stayed' way back last year, obviously before the CoA decision, I'll look back and add further information - Thanks JP

batman44

Where such a question is raised in proceedings before it and it considers that a decision on the question is necessary to enable it to give judgment.
Where an application for permission to appeal raises such a question, the UK Supreme Court does not, when considering whether in the light of that question to grant permission or to make a reference to the CJEU, apply a test of whether the question is of general public importance.

I would take this out and replace with the decision wording of the Supreme court

batman44

Supreme court

"Permission to appeal be refused in Jet2.com because the application does not raise a point of law of general public importance and, in relation to the point of European Union law said to be raised by or in response to the application, it is not necessary to request the Court of Justice to give any ruling, because the Court's existing jurisprudence already provides sufficient answer."

No UK court will go against this decision, request the judge to refuse the stay.

batman44

Basically what they are trying to do is bypass uk law, this has been through the courts and they lost, this in my opinion is almost contempt of court.

Mark2spark

NoviceAngel wrote: »

Ok, very DRAFT but here it is so far......

All criticisms and help welcome......

- and -

JET2.COM LIMITED Defendant

__________________________________________________________________

OBJECTION TO APPLICATION NOTICE BY THE DEFENDANT

IMO it's far far too long. A judge won't read that. Keep it short and sweet, focus on the CoA decision and the refusal to appeal to SC, use wording to show that in the UK it's done and dusted.
Deffo get rid of all the Judge Platt stuff as that summing up was disagreed with by the CoA.

NoviceAngel

Mark2spark wrote: »

IMO it's far far too long. A judge won't read that. Keep it short and sweet, focus on the CoA Deffo get rid of all the Judge Platt stuff as that summing up was disagreed with by the CoA.

Yeah I really wanted to include all the Judge Platt comments, even though the CoA disagreed- I guess I disagree with the CoA still think DJ Platts was spot on! But accept the CoA didn't agree with his summing up!

I'll play with it in the morning- thanks Mark2spark

Mark2spark

dxc_chappie wrote: »

Oh dear, years of more delays ahead?

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2014.303.01.0012.02.ENG

I've read through that.
IMO most of it is answered by Wallentin, especially the bit where it says about aircraft have a degree of technical sophistication, and that breakdowns/tech issues are to be regarded as normal and commonplace.
The other stuff... there's no answer the ECJ can give, it's down to interpretation of *that* individual flight's circumstances as to whether *the event* is an EC or not, and the ECJ has already said that it's for local courts to decide.
There isn't a 'cover all aspects' way of wording the regulation.