Claim for a delayed flight not boarded referred to the CJEU

Budget airline Easyjet is facing yet another legal challenge from disgruntled passengers fed up with the company's interpretation of when compensation is due in flight delay claims.

Earlier this year Easyjet lost an important test case when a judge at Liverpool County Court ruled that successful claimants must be paid in pounds sterling rather than Euros, as had been the company's policy.

However, that is not the only policy from the low-cost airline which lawyers claim is unlawful. While Easyjet accepts that passengers are entitled to compensation for delay over three hours on arrival at final destination, it does not recognise the delay if the aircraft was not boarded by the claimant.

Solicitors at Hughes Walker Solicitors - who brought the successful sterling claim against Easyjet - say that had their clients boarded the delayed flight in question, they would have arrived well over three hours late.

Instead, the Easyjet passenger waited between three to five hours at Luton Airport for their flight to Barcelona but, as they were going for such a short trip, instead decided not to take the flight.

Lawyers for the claimants say this is a not uncommon scenario as passengers who travel to meetings, conferences, or weddings may not want to continue with their journey if a departure delay means the purpose of the journey has been frustrated.

HHJ Hildyard QC, sitting in Luton County Court, has ordered the case of Alan Joseph v EasyJet to be referred to the European Court of Justice (CJEU) for clarification of the Denied Boarding Regulation EC 261/2004 (DBR). It is believed this is only the third time a UK judge has referred a case to Europe under the regulation.

The case asks whether a passenger whose flight suffers a lengthy departure delay and who accepts an offer by the airline to refund the ticket and therefore does not take the flight in question, should still nevertheless be entitled to compensation of €250 under article 7 of the regulation.

EasyJet are relying on a literal interpretation of the law and argues that, beyond the cost of a ticket refund, there is no entitlement to compensation in such cases because the passenger does not experience a delay arriving at the final destination in excess of three hours.

By contrast, Hughes Walker Solicitors are arguing that the courts must apply the EU principle of 'equal treatment' and that the purpose of the regulation is to prevent inconvenience to passengers.

In an upcoming exclusive article for SJ, Mark Walker of Hughes Walker Solicitors, notes: 'It's a curious fact that the German and Dutch courts appear to have much greater propensity to refer cases to Europe under the regulation which possibly reflects a cultural preference in English courts to resolve disputed issues of European law within the English court system.

'Given the frequency of claims under the DBR, it is to be hoped that the regulation may yet be something of an educational opportunity for many district judges at a time when European law increasingly impinges on the court's workload generally.'

Image copyright of Giovanni G / Shutterstock

John van der Luit-Drummond is legal reporter for Solicitors Journal
john.vanderluit@solicitorsjournal.co.uk | @JvdLD