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Fancy a bit of winter sun?

Coming after the driest September since 1910, the weather in October has been changeable and you would be forgiven for shunning the British weather and jetting off to somewhat more stable climes during the winter period. Delayed flights are not nice and we have now seen landmark cases which have clarified consumer rights for airline delays.

Two consumer rights cases recently which may interest you, could now leave airlines open to claims for billions in compensation for delayed flights. These cases have been heard at the Court of Appeal. Dawson and Huzar had their respective cases against Thomson Airways and heard at the Royal Courts of Justice in May 2014. It was hoped that the Court of Appeal decisions would follow the European Court of Justice and airlines would stop obfuscating and coming up with reasons with no foundation to deny passengers what they are entitled to.

The two cases, the first of which was Dawson v Thomson Airways which dealt with issues surrounding the limitation period of claims  for flight delay claims under Regulation EC 261/2004. Dawson used section 9 of the Limitation Act 1980 to argue that UK law states he had six years to bring a claim for flight-delay compensation. Thomson Airways disputed this, citing the Montreal Convention 1999, which they said only provided air passengers with two years to bring such a claim. Dawson originally issued court proceedings against Thomson Airways in 2012 following a delayed flight from London Gatwick to the Dominican Republic in December 2006. While the claimant won at first instance, the airline applied for leave to appeal the decision.

In the second case, Huzar v the claimant sought compensation from the airline pursuant to article 7(1)(b) of Regulation EC 261/2004 for a delay caused by a technical defect relating to wiring that needed replacing. insisted the technical defect that caused the delay was an extraordinary circumstance within the meaning of article 5(3) of the regulations and as such, no compensation was due. Huzar issued proceedings against following a 27-hour delay on his return from Malaga to Manchester in October 2011. The claimant, who represented himself, lost in the first instance but appealed and the airline challenged against this. 
The judgment was handed down in Dawson v Thomson Airways and it has been estimated that this ruling will affect over 11 million passengers and is worth in excess of £4bn to consumers. Lord Justices Moore-Brick, Kitchin and Ryder dismissed the airline's appeal and found in favour of the claimant, ruling that consumers have six years to bring a flight delay claim in England and Wales under EU regulation 261/2004, in accordance with Section 9 of the Limitation Act 1980. The judgment opens up an additional four years' worth of claimable flights for scrutiny. The long awaited decision of the Court of Appeal in Dawson is a resounding victory for UK consumers and brings clarity to one long-running point of dispute between some airlines and passengers seeking compensation for delayed flights under EU 261/2004. Dawson was the culmination of a national challenge to the CJEU case of Joan Cuadrench Moré v KLM (C-139/11). Previously, it had been thought that the two year limitation period in the Montreal Convention which governs carriers of international flights would apply.

The case of Huzar clarified that a technical problem is not considered an extraordinary circumstance. Airlines must now pay compensation pursuant to article 7(1) (b) of Regulation 261/2004 when delays or cancellations are caused by technical defects.

The question is, will the Dawson and Huzar decisions affect air travel ticket prices. “The European Commission says that even if 100 per cent of passengers eligible to claim under EU261 were paid, it is the equivalent of a maximum €3 on the cost of a ticket. The airlines concentration should be to look to improve punctuality, in order to avoid having to pass on costs in the first place."

The phrase 'opening the floodgates' is perhaps a bit overused these days but when Moré was decided in 2011, that was the net effect on UK airlines. Suddenly they unexpectedly faced a backlog of claims relating to delays up to six years previously. Although many airlines decided to simply accept Moré and deal with claims on their individual merits, it is perhaps not surprising that not all airlines felt that way, which leads us back to Thomson's challenge in Dawson.

As it turned out, the Court of Appeal rejected Thomson's arguments and was unequivocal in finding that EU 261/2004 lies outside the scope of the Convention and as such the two year limitation prior will not apply. Lord Justice Moore-Bick, giving the lead Judgment, did however acknowledge that criticisms could be made of the Moré case and so there is a bit of light at the end of the tunnel for Thomson as they now seek leave to appeal the matter to the Supreme Court.

Posted in: Law

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