Court of Appeal confirms that air traffic management decisions are extraordinary
Blanche v EasyJet [06.02.19]
This week, the Court of Appeal handed down their decision as to an air carrier’s liability for compensation under Regulation EC261/2004 where a flight suffers a qualifying delay by reason of an air traffic management decision.
The claimant appealed the first instance dismissal of their claim for compensation pursuant to Regulation (EC) No 261/2004 (the Regulation) when their flight from Brussels to London Gatwick (LGW) was delayed in excess of five hours in October 2014.
The aircraft scheduled to operate the flight was also scheduled to operate a preceding flight from LGW to Brussels, however due to thunderstorms east of LGW, Air Traffic Control (ATC) had suspended departures from LGW. Approximately 50 minutes after the scheduled departure of the preceding flight, when it seemed that the suspension would be lifted, the aircraft taxied to the runway but ATC did not give permission for the flight to depart and it had to return to the stand while the ATC restrictions continued. The aircraft did not depart until 5½ hours later than scheduled, which caused the rotational delay to the claimant’s flight.
The defendant sought to rely on the "extraordinary circumstances" defence to a claim for compensation under the Regulation. Dismissing the appeal in the County Court, HHJ Melissa Clarke found that the wording of Recital 15 of the Regulation was clear: “Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay…”.
The claimant was given permission to appeal to the Court of Appeal, arguing that it was necessary to determine the reason behind an air traffic management decision (ATMD).
The claimant argued that the court should examine the circumstances behind every ATMD and, if they did so in this case, they would find that the underlying reason for the ATMD was thunderstorms, which were not extraordinary, and therefore that the airline could not rely on the defence under Article 5(3) of the Regulation.
Rejecting this argument, the Court of Appeal agreed with HHJ Melissa Clarke that Recital 15 could not be clearer: ATMD was an extraordinary circumstance by use of express words. Recital 15 distinguishes an ATMD as an extraordinary event, whereas Recital 14 provides a list of circumstances which “may” be extraordinary.
Further, the Court of Appeal whilst agreeing with the claimant that the intention of the Regulation was to enhance consumer rights, highlighted that passenger safety was of paramount importance and sensibly accepted that airlines cannot simply flout the instructions of ATC as to do so would be unlawful and unsafe.
The claimant also asserted that Recital 15 should not apply because the ATMD did not affect a particular aircraft on a particular day but it affected 20 flights. The Court explained that this was an irrational reading of Recital 15 for it would make no sense if an airline could apply the Recital 15 defence to one particular aircraft, but not to others that were delayed by the same ATMD.
The Court also dismissed the claimant’s oral submissions that there must be a one-off ATMD delaying a flight for Recital 15 to apply, since most ATMDs are issued in series arising from a continuing event.
Importantly, the Court clarified that the first limb test in Wallentin-Hermann  (whether the event was inherent in the activity of the carrier concerned) only applies to the circumstances listed in Recital 14, explaining that the Recitals address different factual circumstances and therefore have different consequences. Since Recital 15 is concerned with the obligatory decision of a third party which is deemed to be an extraordinary circumstance, the court need not look at the underlying cause of a delay.
Even if such an analysis was incorrect, applying the first limb test, the Court found the cause of Mr Blanche’s flight delay to be the ATMD and not thunderstorms; the aircraft, which had taxied to the runway, was prevented from taking off due to the ATMD, which was not inherent in the normal activity of the airline and was outside their control and, therefore, extraordinary.
This case is a welcome recognition by the courts that carriers should not be penalised for prioritising the health and safety of passengers. This fundamental principle seems to have been lost over recent years with a seeming desire by the courts to award compensation to delayed passengers, blinding the courts to the perverse incentives this creates and obvious risk for air safety.