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UK Court of Appeal bulks up passenger rights on missed connecting flight outside the EU

Anyone who’s ever tried to file a claim for compensation following a delayed or cancelled flight knows the terrible amount of hassle it can be. The amount of excuses that airline companies seem to pull out their very expensive hats are infinite: a slight drizzle before take off? “Sorry Sir, there were unfavourable weather conditions...” A wayward goose decided to race the plane? “Bid strike!” One of the passengers made a ruckus after finding out her husband was cheating on her, forcing the captain to land the plane? Well, the jury’s still out on how they’ll spin that one…

That’s why the EU Regulation 261/2004 comes a as a kind of a godsend; apart from clearly setting out the circumstances which are deemed exonerating in the event of a flight disruption, passengers are assured adequate compensation for all foreseeable losses which they would have suffered.

A recent judicial development in the UK Court of Appeal further reinforces the protection which this Regulation affords to Passengers.

The facts

In Gahan v Emirates [2017] EWCA Civ 1530, the Claimant, Thea Gahan, was scheduled to travel with Emirates from Manchester to Dubai, to meet a connecting flight onwards to Bangkok. Ms Gahan’s flight from Manchester was delayed just less than four hours on arrival in Dubai, resulting in Ms Gahan missing her connecting flight to Bangkok. Ms Gahan arrived at Bangkok 14 hours later than scheduled.

She sought compensation on the basis that she had arrived at her final destination with a delay in excess of four hours.

Whilst Emirates accepted that Ms Gahan was prima facie entitled to compensation under Article 7 of the Regulation, Emirates argued, in accordance with the previous decisions in Emirates Airlines Direktion v Schenkel and Sanghvi v Cathay Pacific Airways that that Regulation only concerns itself with “flights” and not the overall journey.

As Ms Gahan’s connecting flight was not within the scope of the Regulation, Emirates submitted that the Court should only consider compensate her for the delay of her first flight (Manchester to Dubai). As the flight from Manchester was delayed less than 4 hours, Emirates argued that, as per the decision in Sturgeon v Condor Flugdienst GmbH and Air France SA v Folkerts, they were entitled to reduce the amount of compensation by 50%.

At first instance, the Liverpool County Court, a pioneer in the aviation law landscape, upheld this argument, dismissing the Claimant’s case.

But with fire in her belly, Ms. Ghan appealed the decision.

The appeal

The Court of Appeal dismissed both submissions made by Emirates. It held that the Folkerts decision clearly indicated that the entitlement to compensation is based on the delay on arrival at the final destination. As such, regardless of whether the carrier was a community carrier, and that the connecting flight operated outside of a Member State, the Court held that the right to compensation crystallises from the point that a delay to a flight departing from a Member State causes a qualifying delay to arise at the passenger’s final destination.

In a no-holds barred leading judgment by Lady Arden, it was held that “Regulation 261 applies to flights by non-Community carriers out of EU airspace even if flight 1 or flight 2 lands outside the EU. The necessary starting point here is that there is no requirement in Regulation 261 that they should land in the EU.”

The takeaway

So besides a whole heap of case law and legislation, what does this decision mean for you?

It basically represents a more liberal interpretation of the Folkerts case law, so that non-community carriers will now be liable to pay compensation pursuant to the EU Regulation for flights departing from an EU member state based on the time of arrival at a passenger’s final destination whether or not this final destination is in the EU. So if ever you miss a connection in a non-EU airport because your EU-departing flight left late, you are entitled to compensation. Just don’t expect them to put up any less of a fight, though!

You can find the full decision here.

by Frédéric PELOUZE, Weclaim Founder and Director

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