1. The Court of Appeal confirms that compensation under Regulation 261/2004 is not payable by carriers when delays/cancellations caused by air traffic control 1. On 6 February 2019, the Court of Appeal (“CoA”) handed down judgment in the case of Daniel Blanche v easyJet Airline Company Limited [2019] EWCA Civ 69 (“Blanche”).
2. The case concerned whether a court, in determining a claim for flight delay/cancellation compensation pursuant to EU Regulation (EC) No. 261/2004 (“the Regulation”), needed to examine the underlying reasons behind a decision made by air traffic control (“ATC”).

Facts of the case

3. The appellant/claimant was booked to travel with the respondent/defendant from Brussels (“BRU”) to London Gatwick (“LGW”) on 10 October 2014 (“the flight”). The flight departed late and arrived into Brussels 5 hours and 42 minutes after its scheduled time of arrival.
4. The aircraft scheduled to provide the flight was to first operate the outbound sector from LGW to BRU, leaving a 30-minute turnaround before the flight was scheduled to depart BRU.
5. However, there were thunderstorms at LGW and ATC at LGW suspended all eastbound departures from LGW, known as an air traffic management decision (“ATMD”). The aircraft eventually arrived into BRU to operate the flight back to LGW. The delay to the flight in question was therefore a knock-on delay from the delay to the outbound LGW-BRU flight.
6. At the County Court at Luton, at first instance DJ Richard Clarke dismissed the claim for delay compensation on the basis that easyJet had demonstrated that the delay was due to extraordinary circumstances within the meaning of Article 5(3) of the Regulation.
7. On appeal, HHJ Melissa Clarke dismissed the claimant’s appeal, holding that the district judge had adopted the correct approach to Recital 15 and Article 5(3) of the Regulation on the evidence.

CoA decision

8. On appeal from HHJ Melissa Clarke’s decision, Coulson LJ, giving the only reasoned judgment (with which King LJ and Sir Ernest Ryder agreed), resoundingly rejected the arguments put forward by the appellant.

Examining the underlying reason for the ATMD?

9. Coulson LJ gave three reasons for rejecting the appellant’s primary ground of appeal that what mattered was not the ATMD to suspend all eastbound flights from LGW but the underlying reason for that ATMD, namely the thunderstorms.
10. Firstly, this ground of appeal was rejected as it flew in the face of how Recital 15 of the Regulation was to be interpreted. Coulson LJ held that Recital 15 was prescriptive, stating at paragraph 15:

‘In my view, Recital 15 could not be clearer.  It states that, for the purposes of the Regulation, “extraordinary circumstances should be deemed to exist” where an ATMD has (amongst other things) caused a delay to a particular aircraft on a particular day.  The use of the expression “should be deemed to exist” is critical, because it leaves no room for doubt or argument: an ATMD which causes a long delay to a particular flight on a particular day should be deemed to be an extraordinary circumstance.  That clear guidance is not qualified in any way.’

11. Secondly, this ground of appeal was rejected as no case law (either domestically or from the Court of Justice for the European Union) supported the appellant’s interpretation of Recital 15. No case referred to by the appellant addressed the meaning of Recital 15, save for McDonagh v Ryanair Limited [2013] 1 Lloyd’s LR 440 in which it was confirmed that the ATMD to close Irish airspace (as a result of volcanic ash) was an extraordinary circumstance.
12. Thirdly, the ground of appeal was rejected as the interpretation put forward ran contrary to the various policy considerations involved. Coulson LJ explained the different wording between Recitals 14 and 15 as being down to the fact that carriers ‘generally had no control’ over delays caused by ATMDs. He continued at paragraph 31:

‘It would be impractical and time-consuming if carriers felt obliged routinely to challenge every ATMD at the time that it was made, because they knew that they would need subsequently to justify that decision in answer to any claims for delay.  It would also be impractical for the courts to allow a debate about the merits of a particular ATMD long after the event, and in circumstances where ATC would not be party to the litigation.  Such an approach would be disproportionate to the typical value of compensation awarded in cases of this kind.’

13. Coulson LJ further held that, based on the language of Recital 1 – to ensure ‘a high level of protection’ for passengers – that protection ‘starts with the need to ensure their safety’. He continued at paragraph 32 thus:

‘The paramount importance of safety considerations explains the significance that Recital 15 ascribes to ATMDS: it is there, as a separate and stand-alone Recital, in order to emphasise that any issue of safety, which would in turn require an ATMD, takes the situation out of the ordinary.’

14. In response to the concern that Recital 15 constitutes a sort of “get out of jail free” card, the judge emphasised that carriers still needed to satisfy the second limb of Recital 15 (and Article 5(3)) that all reasonable measures had been taken to avoid the delay due to the impact of the ATMD1.
15. Coulson LJ noted in passing that his conclusions on the primary ground of appeal were consistent with a number of decisions of the lower courts, namely in Horstink & Snapper v British Airways (Liverpool County Court) and Dunbar v easyJet (Scottish Sheriff Court).

The inapplicability of the inherency and control test to Recital 15 cases

16. The learned judge then turned to consider whether the first limb of the test set out in Wallentin-Hermann v Alitalia-Linee Aeree Italiane SpA (C-549/07) – whether an event is ‘inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin’ – applied to a Recital 15 case. In holding that the test was not applicable, Coulson LJ explained that neither in Wallentin-Hermann or Huzar v Jet2.com [2014] EWCA Civ 791, was Recital 15 mentioned. There was therefore no reason for the inherency and control test to apply when Recital 15 deals with ‘the binding decision of a third party (namely the ATC) which should be deemed to be an extraordinary circumstance’2.

Cause of the delay was the ATMD which passed the inherency and control test

17. Coulson LJ held that if he was wrong, and the inherency and control test did apply, then the ATMD ‘was not inherent in the respondent’s normal activity of making/organising such flights; it was the independent decision of a third party, over which the respondent had no control, and it formed no part of the respondent’s own activities’3.

1 Paragraph 34.  2 Paragraph 39.  3 Paragraph 47.

ATMD relating to a particular aircraft on a particular day?

18. The last submission raised on appeal was that the ATMD did not relate to a particular aircraft on a particular day, as required by the language found in Article 15, as over 20 flights were affected by the ATMD in question.
19. Coulson LJ gave this submission short shift, holding that it would ‘make no sense if an ATMD affecting one flight was covered by Recital 15, but that an ATMD (made for precisely the same reason), which affected two or more flights, fell outside Recital 15’4. Provided the carrier demonstrated ‘the necessary causal link between the ATMD and the particular delay’5 then the first limb of Recital 15 was made out.
20. In concluding, Coulson LJ held that a series of ATMDs, issued as ‘part of a developing or ongoing situation, particularly when the cause of the problem is the weather’6 could not undermine a defence based on Recital 15.

What impact?

21. Prior to this judgment there was some debate as to the status of Recital 15, whether it was guidance only to be taken into consideration or whether it amounted effectively to a deeming provision. Coulson LJ described Recital 15 to be ‘a much more prescriptive provision [than Recital 14] which, all other things being equal, equates an ATMD with extraordinary circumstances, and thereby allows the Article 5(3) defence to run’7. It is clear now that Recital 15 is in fact a deeming provision in light of this judgment.
22. The repeated reference in the judgment to safety being the “paramount” concern, in the same vein at the CJEU in Marcela Pešková, Jirí Peška v Travel

4 Paragraph 53.  5 Paragraph 55.  6 Paragraph 57.  7 Paragraph 43.

Service A.S. (C-315/15, 4 May 2017)8, will be of some comfort to carriers who regularly face claimants and courts who either ignore this important factor or give it little deference.

23. The judgment will also be of welcome to carriers for clarifying the causality of ATMDs. Provided a carried can establish a causal link between the ATMD and the particular delay then Recital 15 will be made out.
24. Carriers should similarly be grateful for the gloss added by Coulson LJ to the inherency and control test. It would appear that if a particular circumstance in is an independent decision of a third party, over which the carrier has no control, and it forms no part of the carrier’s activities9, then it will amount to an extraordinary circumstance.
25. What is less clear from the judgment is the CoA’s response to the issue of when one needs to apply the inherency and control test when a circumstance that is not extraordinary leads to an ATMD. The example given was when an aircraft is taxiing towards the runway when ATC spots smoke which was due to an ‘ordinary technical defect’ which thus leads to an ATMD. Perhaps unhelpfully it was not suggested what the ATMD would be, whether for the return of that aircraft or a wider restriction of the closure of the runway for example.
26. The issue did not arise for determination on the facts of the case as Coulson LJ held that the cause of the delay was not the thunderstorms. He held that the aircraft had not taken off on time as it had been prevented by ATC at Gatwick – ‘it would have bene unlawful and unsafe for G-EZIN to ignore that prohibition and endeavour to take off in any event’10. Nonetheless, Coulson LJ suggested that in 8 At paragraph 25.  9 Paragraph 47.  10 Paragraph 46.

A scenario where there are ‘two competing causes of the delay’, it is for the court ‘to decide which was the operative cause in accordance with the test in Pešková’11.

27. Interestingly, Coulson LJ went on to state the following12 on a finding that the delay in the hypothetical scenario was found to be due to an ATMD:

‘…I am not persuaded that there would be any unfairness or illogicality in any event.  For the reasons which I have already given, safety considerations must be paramount.  If in his example the ATC acted because of the smoking engine then, whatever the ultimate cause of that problem, it was of the upmost importance to ensure that the flight was aborted.  Everything else was secondary.  So, although hypothetical examples can be found of circumstances where an ATMD might, on analysis, “hide” a more mundane reason for the delay, it seems to me that that would be a small price to pay to ensure that the safety of all air passengers remained paramount.  Indeed, I am confident that this requirement was precisely what the draughtman had in mind when he or she made Recital 15 a separate and stand-alone provision deeming ATMDs to be “extraordinary circumstances”.’

28. The judgment appears to, on the one hand, state that in a scenario such as the one proposed by appellant, the Pešková “subtraction test” needs to take place (if one is left with three hours or more of a delay caused by non-extraordinary circumstances then compensation is payable). On the other hand, Coulson LJ appear to state that this exercise need not take place if a non-extraordinary circumstance ultimately leads to an ATMD (or possibly other extraordinary circumstance). Whilst carriers may feel inclined to follow the latter remarks made by Coulson LJ, this flies in the face of the CJEU’s decision in Pešková.
29. For now (subject to what happens in a post-Brexit world), carriers are advised to continue to evidence and argue that all the causes of a delay are extraordinary, unless it can be clearly proved that the only cause of the delay was an ATMD.

11 Paragraph 41.  12 At paragraph 42.

30. Carriers will, of course, still have to provide that they took all reasonable measures to avoid the delay, whether caused by a ATMD and/or some other circumstance.

Lawrence Power ©

10 February 2019

cl@whitestonechambers.com

www.whitestonechambers.com