Decision in favour of passengers follows last year’s similar ruling by the Supreme Court
The European Court of Justice (ECJ) this morning ruled that airline passengers can claim compensation for delays caused by technical faults. You could be forgiven for thinking that this rule has already been passed last year. It was in fact the Supreme Court in the UK.
In October 2014 the Supreme Court ruled that consumers had 6 years to claim compensation for delays and upheld the ruling regarding that technical difficulties are not “extraordinary circumstances” for the purposes of a compensation claim . The Dutch airline KLM had tried to argue that spontaneous technical issues are “extraordinary circumstances” and many cases have been on hold whilst the case was appealed at the ECJ.
The ruling demonstrates how poor the regulation is: so many claim cases around the EU have had to go to court, to the Supreme Court in the UK and now the European Court of Justice. Well-written regulation should shape the minimum standards and compensation rules but they have not been clear enough which has led to confusion and legal cases. Reform of the regulation is underway in Brussels, but progress has stalled due to disagreements between member states.
An increase in the already large number of compensation claims is now inevitable.
“In some cases the compensation will be higher than the price of the ticket which is ridiculous and will result in only one thing, an increase in prices.” She also warns of the increase in number of no-win no-fee organisations claiming on behalf of people who have been delayed. “There is nothing that an organisation or lawyer can do regarding delayed or denied boarding that a consumer cannot do themselves and get 100% of the compensation figure (which varies on length of flight and delay).” (For details on what you need to know to claim compensation see here.)
Notes to editors:
 The decisions made in the Huzar v Jet2 and Dawson v Thomson cases confirmed that routine technical difficulties are not extraordinary circumstances. Ron Huzar was delayed for 27 hours on a Malaga to Manchester flight. The delay had been caused by faulty wiring and Jet2 had claimed that this was unforeseen and categorised as an ‘extraordinary circumstance’. In the Dawson v Thomson case, James Dawson was claiming for an eight-hour delay on a flight to the Dominican Republic in 2006; his claim was made in 2012. The airline refused to pay, citing the Montreal Convention, which limits claims to two years after an incident. On October 31st 2014 the Supreme Court upheld the rulings at appeal. Delays caused by technical problems cannot be categorised as ‘extraordinary’ circumstances and not liable for compensation and consumers have up to six years after the flight to make qualifying compensation claims. A judge in Liverpool county court threw out applications on the 25th February 2015 by Jet2, Ryanair, Flybe and Wizz Air to keep claims on hold until a case in Holland about technical delays (Van dear Kans v KLM) was decided. He stated that cases should be settled in line with existing passenger-rights rules.
How to complain about your delayed or cancelled flight.
Denied Boarding Regulations criteria
The Denied Boarding Regulation applies to passengers departing from an airport within the EU, whatever the airline is, and also applies to passengers departing from an airport outside the EU for an airport within the EU, if the operating air carrier is a Community carrier. (I.e. a carrier with a valid operating license granted by an EU state).
Your rights when your flight is delayed, cancelled or you are denied boarding
Under European regulations (EC261), passengers have significant rights if their flight is delayed, cancelled or they are denied boarding. These rights have been in place across Europe since February 2005 and the CAA is the national enforcement body for them here in the UK. The rights cover the following:
Flight cancelled or delayed for several hours – the airline must look after passengers. It must provide food, drinks, and some communications. You are entitled to this if you are delayed more than 2 hours on short haul, 3 hours on medium and 4 on long haul.
If passengers are delayed overnight, this also means providing them with a hotel and travel to and from it. (All these must still be provided even if the delay was out of the airline’s control).
Flight is cancelled – the airline must offer an alternative flight or a full refund. The passengers may also be entitled to compensation if the flight was cancelled less than 14 days before the scheduled departure.
Denied boarding or “bumped” from a flight – the airline must offer an alternative flight or a refund. Passengers are entitled to compensation.
If a passenger’s flight is delayed by more than 5 hours and they no longer want to travel they are entitled to a full refund.
The Civil Aviation Authority says “Sometimes airlines may advise you to make alternative travel arrangements, then claim back the cost later. If you do this, try to keep costs down as much as you can, keep receipts and record the name of the person giving this advice. Book with the same airline if at all possible.”
If you accept a refund you cannot additionally claim compensation. It does seem a bit unfair, but the compensation can only be claimed if you experienced the delay as part of your journey not sitting in your departure airport. If you didn’t travel, then you are not entitled to compensation.
Regulation (EC) 261/2004 applies to all flights wholly within the EU/EEA or Swiss region, or departing an EU/EEA or Swiss airport, or arriving in the region and with an EU/EEA or Swiss airline. Under EU rules, airlines must pay compensation for cancelled or heavily delayed flights, however, they can escape this under some ‘extraordinary circumstances’. This can include sudden severe weather events for example. Pilots turning up late, cancelled booking due to under booking etc. are examples of the airline at fault and so passengers can complain and get compensation.
The decisions made in the Huzar v Jet2 and Dawson v Thomson cases confirmed that routine technical difficulties are not extraordinary circumstances. Ron Huzar was delayed for 27 hours on a Malaga to Manchester flight. The delay had been caused by faulty wiring and Jet2 had claimed that this was unforeseen and categorised as an ‘extraordinary circumstance’. In the Dawson v Thomson case, James Dawson was claiming for an eight-hour delay on a flight to the Dominican Republic in 2006; his claim was made in 2012. The airline refused to pay, citing the Montreal Convention, which limits claims to two years after an incident.
On October 31st 2014 the Supreme Court upheld the rulings at appeal. Delays caused by technical problems cannot be categorised as ‘extraordinary’ circumstances and not liable for compensation and consumers have up to six years after the flight to make qualifying compensation claims. A judge in Liverpool county court threw out applications on the 25th February 2015 by Jet2, Ryanair, Flybe and Wizz Air to keep claims on hold until a case in Holland about technical delays (Van dear Kans v KLM) was decided. He stated that cases should be settled in line with existing passenger-rights rules.
Where a strike involves employees of another organisations, eg. air traffic controllers, an airline cannot be expected to pay compensation for a delay that realistically is outside of their control. However, if delays occur as a result of a strike by an airline’s own employees, then passengers should be entitled to compensation.
If, due to a delay of less than 3 hours, you miss your connecting flight and so arrived at the final destination more than 3 hours late, you are entitled to compensation of between €125 and €600. However, this is only the case if you book both flights together.
Airlines will really fight this one! But! The Air France SA v Heinz-Gerke Folkerts& Luz-Tereza Folkerts 26/02/13 case the Judge ruled that “Article 7 of 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 must be interpreted as meaning that compensation is payable, on the basis of that article, 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 the final destination at least three hours later than the scheduled arrival time, given that the compensation in question is not conditional upon there having been a delay at departure and, thus, upon the conditions set out in Article 6 having been met.” So quote that!
Update – In March 2018 the Supreme Court ruled that airlines must pay compensation when passengers miss a connecting flight and arrive more than 3 hours late at a destination outside of the EU. Claudia Wegener v Royal Air Maroc SA 31 May 2018.
Consequential losses and your entitlement to redress
If you have booked a hotel and other things, you should try to claim.
The EU laws don’t cover consequential losses. However domestic law may,
Consumer Rights Act 2015 came into force to cover airlines October 1st 2016 but it is such a new law that it’s largely untested and will be until we get a definitive judge-lead ruling.
The UK EU Consumer Centres says “Consumers may be able to pursue the airlines under the Consumer Rights Act 2015 (CRA) as the company should perform a service with reasonable care and skill. Also, another instrument that passengers may be able to use is the Montreal Convention.” The CAA has been looking at how the CRA will work with the Montreal Convention as it is very complicated regarding what and when you are covered as the MC applies once in the sky and over rules anything else. It is far from clear cut!
Compensation for delays is only due on flights arriving over three hours or more late. (2 hours for flights 1,500km and under). How much you are entitled to depends on how long the delay and how long the flight. It changes again if the flight is cancelled before/after seven days before you are due to depart. It does not reflect the price of the flight and is straight out compensation. Personally I don’t like this, it buys into the “compensation culture”. Genuine redress and goodwill gestures reflect time and amount spent on matters but these regulations do not take this into account and therefore there is a risk that the low cost airlines will be hardest hit and consequently have to put up their fares. I feel compensation should be reflective, but while it isn’t, this is what we have, set amounts set in Euros so depends on where we are with exchange rates! When I wrote How to Complain: The Essential Consumer Guide to Getting Refunds, Redress and Results! which includes more details about how to claim for what, the exchange rate meant you would be getting £200 for a flight up to 1,500km as of 29th June 2015 and the new edition you’ll be getting £178!
Landing in court with Ryanair describes the situation with strikes in 2018 and the position of using ADR and AviationADR for Ryanair in particular.
Look East interviews Ryanair CCO and Helen Dewdney
LookEast Evening and Late News 23/08/18. Two interviews with me regarding the current situation and one with the Ryanair Chief Commercial Officer David O’Brien. Looks at strikes, rights, bounced cheques and baggage issues.
Look East interviews Ryanair CCO and Helen Dewdney
Claiming from an airline for delayed/cancelled flights
Don’t feel like you need a no win no fee solicitor or a similar firm. They cannot and will not do anything that you cannot do for yourself and keep the whole amount! More here.
Refused compensation or not getting paid out after ADR decision?
Consumers who have had compensation claims rejected for any of the reasons rejected by the courts can now re-submit the claims to the airlines as long as the delay was less than six years ago.
If you have had a claim refused write again citing the relevant legal case above and follow the tips for complaining. You can also go to the relevant ADR scheme but see Landing in court with Ryanair for issues regarding AviationADR in particular.
The airlines do not have to respond to complaints within an official time limit, so set them a date by which you expect to receive a response. At the very least a “holding letter” of investigation should be sent.
If the airline is not a member of an ADR scheme you can contact the CAA. Write to the CAA CEO.
You can complain to an airline in the EU but if you having difficulty or need further help contact the UK European Consumer Centre which helps with cross border disputes.
BBC Breakfast discussing flight delays
With apologies for the scary face (although that’s normal you should see me when I’m angry) at the beginning, didn’t realise the camera was on me! D’oh! It’s called resting bitch face.