In Lipton & Another v BA City Flyer Limited  EWCA Civ 454, Michael Rawlinson QC and Max Archer, both of 12 King’s Bench Walk and instructed by Hayward Baker Solicitors, were successful in the Court of Appeal in the first case to consider the impact of an EU Regulation post-Brexit.
The appellants successfully argued that airline staff absences should not be considered to be ‘extraordinary circumstances’ for the purposes of Regulation (EC) 261/2004 (“the Regulation”).
In this blog post, Samuel Cuthbert considers the implications of the judgment.
Passengers have a right to recover compensation for significantly delayed flights under Article 5 of the Regulation, except where the air carrier can demonstrate that the delay was a result of ‘extraordinary circumstances’. The appellants’ flight was cancelled because the captain had not attended work having developed gastroenteritis. The argument centred on whether staff non-attendance due to illness constituted ‘extraordinary circumstances’.
At first instance, Deputy District Judge Printer found that, because the captain’s illness had been caused by a matter unrelated to his work, the illness could not be said to be intrinsically linked to the operating system of the aircraft. On appeal, HHJ Iain Hughes QC dismissed the appellants’ arguments on the grounds that the material question was what brought about the captain’s illness, rather than the illness itself.
Prior to the hearing, the parties had jointly prepared a memorandum for the Court of Appeal in respect of the position of EU law after the end of the transition period. It was common ground between the parties that the Regulation formed part of domestic law through the European Union (Withdrawal) Act 2018 (“EU(W)A 2018”). Notwithstanding consideration of the trade agreements, the agreed position between the parties was accepted by the Court of Appeal within its judgment.
Green LJ provided an exposition of the legislative structure following the end of the transition period, the status of an EU Regulation, the relevance of judgments of the CJEU, the significance of domestic legislation in relation to passenger compensation, and the Trade and Cooperation Agreement (“the TCA”). This judgment narrowly follows the end of the transition period and nothing of relevance in the case law of the CJEU has changed. In the future, as the CJEU case law evolves, the gap may grow between the current state of EU law and case law to which UK courts will have regard. In line with Green LJ’s helpful summary at –, the basic principles of relevance in this case can be summarised as follows:
- Regulation 261/04 is direct EU legislation. Section 3(1) EU(W)A 2018 has the effect of retaining direct EU legislation.
- It takes effect in domestic law as amended by the Air Passenger Rights and Air Travel Organisers’ Licencing (Amendment) (EU Exit) Regulations 2019, which came into force on 31 December 2020.
- It should be given a purposive construction which takes into account its recital and other principles referred to in the body of the Regulation and in the Recitals. This purposive construction is necessary to achieve the requisite degree of consumer protection.
- To the extent necessary this process of interpretation would include any provision of international law that has been incorporated into the Regulation by reference. This includes the Montreal Convention for the Unification of Certain Rules for International Carriage by Air.
- The meaning and effect of the measure should be determined by reference to case law of the CJEU made prior to 11 pm 31st December 2020. Under Section 6(1) EU(W)A 2018, English Courts are not bound by any principles laid down, or any decisions made by the CJEU, on or after IP completion day and may not refer any matter to the European Court.
- General principles of EU Law from case law and as derived from the Charter of Fundamental Rights and the TFEU, are relevant to interpretation. Schedule 1 paragraph (2) of EU(W)A 2018 makes general principles part of domestic law provided they were recognised in relevant case law prior to IP completion day.
- In construing and applying such a Regulation, the Court of Appeal (or Supreme Court) can depart from any retained CJEU case law if it considers it right to depart from it. Green LJ also said that the Court of Appeal could depart from any “retained general principles” of EU law – though it is not clear what provision the Court was relying on in coming to the view that it also had the power to depart from such “general principles” of EU law.
- The provisions of the TCA and the European Union (Future Relationship) Agreement 2020 may be relevant to the effect of domestic law insofar as the subject matter of the domestic law in issue overlaps with the subject matter of the TCA and/or EU(FR)A 2020 and in so far as domestic law does not already cover the subject matter of the TCA.
- If domestic law does not already reflect the substance of the TCA then domestic law takes effect in the terms of the TCA. In this case domestic law already implements the relevant provisions of the TCA and there is no ned for any further transposition in order to achieve the requisite effect.
The test for the interpretation of ‘extraordinary circumstances’ is derived from Recitals 14 and 15 of the Regulation, as applied in Wallentin-Hermann v Alitalia (Case C-549/07). Wallentin elucidates two limbs: inherency and control. Jet2.com Limited v Huzar  EWCAciv 791 makes clear that this test nonetheless centres on the question of inherency.
Coulson LJ provided an exhaustive list of the key authorities on the interpretation of ‘extraordinary circumstances’ of which there are many. In sum, these authorities concern mechanical defects in the aircraft, external or one-off events, and staff absence. There are no reported cases in which an air carrier successfully argued that a mechanical defect amounted to an extraordinary circumstance.
As regards external or one-off events, the authorities create a less categorical picture. In Siewart v Flugdienst GmbH (Case C-394/14) delays caused by mobile boarding steps damaging the aircraft were not caused by extraordinary circumstances despite those steps being operated by the airport. Conversely, in Peskova & Anr v Travel Service (Case C-315/15, EU:C:2017:342), a bird strike did amount to extraordinary circumstances. So too did all cases concerned with unusual weather events and air traffic control decisions.
As regards staff absence, no prior authority concerned staff illness though there is authority on the issue of non-attendance due to strike actions. Krusemann and others v TUIfly GmbH EU:C:2018:258  Bus LR 1191 concerned a wildcat strike action after the announcement of a corporate restructuring process. The court determined that such strikes were inherent in the normal carrying out of the activity of the air carrier.
The respondent argued that the discovery of the pilot’s non-attendance due to illness should be supplemented with an enquiry into when, why and how the pilot became ill. It was argued that the critical factor was that the pilot became ill when off-duty, and accepted that if he had become ill whilst on-duty then reliance on Article 5(3) would be much more difficult.
The appellants submitted that the court was neither obliged nor equipped to undertake the analysis of causation which was presupposed by the respondents’ argument. The scope of enquiry, on the appellants’ submission, should go no further than isolating illness as the cause of the flight delay and that making provision for staff non-attendance was an inherent part of the respondent’s operations.
Coulson LJ enumerated 6 interlinking reasons for the respondent’s arguments failing to make out extraordinary circumstances on the facts:
- Ordinary Meaning of the Words
A straightforward reading of the Regulation is called for. Staff illness is a commonplace issue for any business and so too is the need to accommodate that illness on a daily basis. It is a “mundane fact of commercial life: it is in not way out of the ordinary”. This reading of the Regulation was said to account for its purposes of consumer protection.
- Consistent with the Authorities in respect of Staff Absence
Absence is not a factor identified in Recital 14 of the Regulation and whilst staff absence due to strike action is so identified, this was significantly more likely to be out of the ordinary than a staff member with gastroenteritis.
The court rejected the respondent’s argument that Krusemann should be distinguished on the basis that the wildcat strike was due to the air carrier’s own corporate reorganisation, and that this showed the level of causation analysis which was required. Coulson LJ gave two reasons for this. One, the nature of the strike made no difference to the outcome. Two, strikes are identified in Recital 14 as an indicator of extraordinary circumstances and so investigation by the court was necessary.
- Consistent with the Authorities in respect of Technical Defects
An air carrier’s operation depends on its people and its aircraft. Wear and tear to the aircraft is not extraordinary in line with Jet2 and so neither should the wear and tear of people be considered to be. This reflects the dependency of an air carrier on its human resources, and the inherency of both the people and the aircraft to its operation.
Moreover, as in Sturgeon & Anr v Condor Flugdienst GmbH (Case C-402/07),  2 All ER (Comm) 983, the Regulation must be seen through the eyes of the consumer. The consumer would not have differentiated between cancellation by virtue of wear and tear of the aircraft, or the captain’s illness.
- Consistent with the Authorities in respect of External or One-Off Events
The mundane circumstances of staff illness is very different to one-off or external events. Frequency will sometimes be relevant to whether or not the event in question could be categorised as being out of the ordinary. Just as air carriers were regularly faced with situations arising from the use of mobile stairs which are indispensable to air passenger transport, so too are captains indispensable and their non-attendance is regularly an issue for air-carriers to deal with.
- Inherency and the Relevance of Off Duty Events
The pilot is critical to an air carrier’s activity. It is irrelevant when the captain falls ill, and it is unrealistic to suggest that he or she is an inherent part of the air carrier’s operation only when he or she is clocked on. A pilot may not drink alcohol in the 24 hours preceding flying by an obligation imposed by his/her employer. Breach of that obligation and the subsequent cancellation of the flight is inherent to the air carrier’s activity. The cabin crew’s obligation to ensure they are properly rested during stopovers is similarly an obligation inherent to the air carrier’s activity. Non-attendance for either reason is not an extraordinary circumstance.
- Too Granular an Investigation
The detail of the circumstances in which a staff member fell ill is irrelevant to Article 5 of the Regulation. It is contrary to the scheme of the Regulation for the carrier to provide a complex analysis of the detail of a staff illness, especially given claims under the Regulation are typically assigned to the Small Claims Track and should be capable of determination on the papers. In any event, isolating when, why and how someone falls ill is difficult. Medical records would be required, and a consumer cannot be expected to address arguments based on the representation of third parties. The consumer’s right to compensation under the Regulation cannot depend on when and where the member of staff ate a suspect prawn sandwich.
This judgment is significant for two main reasons. First, it is a vindication of the rights of the consumer. It re-establishes that, having been transposed into UK domestic law, the Regulation continues to provide a mechanism for consumer rights protection. Future litigation arising from the Regulation will now need setting against the position set out by Coulson LJ at  that the factual matters the consumer can be expected realistically to address (in this case, the issue of when and how the crew-member fell ill) is a primary concern for the court in determining issues in dispute.
The decision clearly articulates the legislative position following the end of the transition period and confirms that the Regulation should be construed purposively so as to achieve the requisite level of consumer protection set out in the TCA. This represents a clear statement that where domestic law does not already reflect the substance of the TCA, then domestic law takes effect in the terms of the TCA. The TCA is concerned with consumer protection in flight delay situations in both substance and spirit, and this decision identifies its use as a consumer protection backstop where domestic legislation does not meet its standard.
Second, this decision provides a detailed insight into the scope of enquiry for examining extraordinary circumstances. In respect of staff illness, the Regulation is not concerned with the cause of the circumstances, rather it is concerned with extent to which the effect is inherent to the air carrier’s activities. More broadly, the issue of inherency is to be interpreted in a straightforward manner and any court confronted with interpreting extraordinary circumstances should be questioning whether the circumstances are a mundane fact of commercial life, and whether their frequency is demonstrative of there being ordinary or extraordinary. This is perfectly encapsulated in the analogy of the suspect prawn sandwich. Where, when, and how the prawn sandwich was bought, made, and consumed are irrelevant for the purposes of the Regulation. All that is important is the effect on the staff member having consumed it, and the fact that its effect is an ordinary and everyday feature of an air carrier’s activities.