Up in the air: Flight delay claim queries return to Europe

In what may prove to be the first of several similar decisions, Her Honour Judge Hildyard QC, sitting in Luton County Court, 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). This is believed to be only the third time that any UK judge has referred a case to Europe under the regulation.

The case asks whether a passenger whose flight suffers or is expected to suffer a lengthy departure delay and who, as a result, 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, in addition to a refund of the cost of the ticket.

This is a not uncommon scenario, because passengers who travel to a meeting or to attend specific events such as conferences, weddings etc., may not want to continue with their journey if a departure delay means the purpose of the journey has been frustrated. This is what happened to Mr Joseph and his wife on 15 February 2014, when they were delayed over three hours waiting at Luton Airport for their flight to Barcelona.

The couple eventually accepted a refund when it became apparent there was no point continuing with the journey because they would arrive too late for the purpose of the trip, which was to attend a birthday party. The flight eventually arrived at Barcelona, minus Mr and Mrs Joseph, over five hours late.

EasyJet argue there is no entitlement to compensation in such circumstances (beyond the cost of any ticket refund offered by the airline) because the passenger does not experience a ‘delay’, ‘arriving’ at the ‘final destination’ in excess of three hours (the test applied in Sturgeon v Condor C–402/07 and confirmed in Nelson v Lufthansa C–581/10). In Alan Joseph v EasyJet, HHJ Hildyard QC held that, although the claim was novel, it deserved to be aired before the CJEU. This may be the first of several UK cases to find its way to Luxembourg under the regulation.

Keeping it in the family

It is a curious fact that the highest German and Dutch courts appear to have much greater propensity to refer cases to the CJEU under the regulation, which possibly reflects a cultural preference in English courts to resolve disputed issues of European law within the English
court system.

Witness, for example, Huzar v Jet2.Com 2014 EWCA Civ 791 [2014], when Lord Justice Elias, giving the Court of Appeal’s judgment in favour of the passenger, freely admitted he could not determine the full meaning of ‘control’ as set out in the second limb of the CJEU’s definition of the concept of ‘extraordinary circumstances’, as provided for by Wallentin-Hermann v Alitalia C–597/07. Elias LJ was nevertheless able to decide that the technical fault, which had grounded Jet2’s aircraft, did not constitute an extraordinary circumstance for the purpose of the regulation.

Contrast this with Van Der Lans v KLM C–257/14, another technical fault case, in which the Dutch court did not hesitate to refer the Wallentin test back to the CJEU, a bandwagon the Supreme Court refused to allow Jet2 to climb on when it rejected Jet2’s application for permission to further appeal the Huzar judgment.

It is, therefore, perhaps useful to remind oneself as to the law applicable when the court has to consider whether or not to refer a preliminary question to the CJEU.

Article 267 of the Treaty Rome states: ‘Where… a question is raised before any court or tribunal of a member state, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the [CJEU] to give a ruling thereon.’

Article 267 has been considered several times by the English courts, starting with Lord Denning’s judgment in Bulmer Ltd v J Bollinger SA [1974] 1 Ch 401, but the effect of it was perhaps most succinctly summarised in R v International Stock Exchange ex parte Else [1993] 1 All ER 420 (CA) which held: ‘The English Court must only retain the interpretative issue of EU law for resolution if it (the English Court) can say that it can do so with “complete confidence resolve the issue itself”, being “mindful of the pitfalls venturing into community law, and of the great advantage” enjoyed by the ECJ in construing instruments and..the need for uniform interpretation”, furthermore “if the national court is in any doubt it should ordinarily refer”.’

There is also residual ability to refer cases to the CJEU where it is required to do justice. There is, thus, a presumption that cases should be referred to the CJEU, where to do so is necessary in order to give a judgment when there is any real doubt about the correct interpretation of the point of European law in dispute; but, on many occasion, this ‘Any Real Doubt Test’ seems to be honoured more in the breach than the observance.

When it comes to the DBR there is often plenty of scope for real doubt for two reasons. First, the DBR is most commonly being applied to claims for compensation for flight delays, which was never provided for by the draftsman of the regulation, but only came about as a result of the judicial extension of the regulation by the CJEU in the Sturgeon case, which, as a result, left many loose ends untied.

Second, when interpreting the regulation, as Sturgeon exemplifies, the court must apply the ‘principle of equal treatment’ (Swedish Match v UK C–210/03), as well as principles expressed in first and second recitals of the regulation (‘… ensuring a high level of protection for passengers’ etc.), which affords much creative opportunity for disputing the correct interpretation of the regulation in many circumstances.

Cross-border delays

One such common scenario is that of connecting flights. Emirates, for example, has been very successful in a slew of cases in the small claims court, arguing that delayed connecting flights out of Emirates's main hub in Dubai must be treated as separate and distinct flights, which are not covered by the regulation, even if the passenger starts his or her booked journey within the EU.

The basis of Emirates's argument is a judgment by Mrs Justice Proudman in the High Court case Sanghvi v Cathay Pacific [2011] EWCH 1684, which held, relying on an earlier CJEU case (Schenkel v Emirates C-173/07), that Emirates's connecting flights which leave a non-EU airport are territorially 'outside the scope of the regulation' (article 3).

Most district judges will, under the principle of stare decisis, defer to the Sanghvi judgment, even though it contradicts the CJEU's later decision in Folkerts v Air France, which held that: 'The concept of "final destination" is… in the case of directly connecting flights, the destination of the last flight… compensation is payable… to a passenger on directly connecting flights, who has been delayed at departure for a period below the limits specified in article 6 of that regulation, but has arrived at his final destination at least three hours later than the scheduled arrival time… '.

The problem with the Schenkel case (2008) is that it pre-dates both Sturgeon (2009) and Folkerts (2013), and addresses a completely different question, which is, namely, whether a flight inbound to Europe should be treated as an extension of the earlier outbound flight which originally departed the EU, thus rendering both the inbound and outbound flights of a return ticket subject to the regulation. This is an obviously strained interpretation of the regulation, which the CJEU had no difficulty rejecting because the regulation expressly provides that, in the case of non-community carriers like Emirates, it is only the flights outbound from Europe, not inbound, which are within the scope of the regulation.

Emirates’s solicitors tell us that passengers have apparently lost this Folkerts versus Schenkel/Sanghvi argument at least nine times before different district judges up and down the country; yet it appears not one of these district judges has paused to consider whether the contradiction between Folkerts on the one hand and Sanghvi/Schenkel on the other might require referral to the CJEU.

Given the frequency of claims under the DBR, it is to be hoped 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.

Whether it will ultimately prove to be a good thing for more cases to be referred to the CJEU is open to question as the wheels of justice turn notoriously slowly in Luxembourg, which is despite article 267 of the Treaty of Rome wishfully providing otherwise: ‘... the Court of Justice of the European Union shall act with the minimum of delay’.

Presumably, this irony merely illustrates that all things are relative, at least when it comes to deciding what amounts to an unreasonable delay on a flight versus what amounts to an unreasonable delay in the wheels of Eurocracy and European justice. SJ

Mark Walker is the director of Hughes Walker Solicitors Ltd and will represent Joseph in Alan Joseph v EasyJet