Fountain Court Chambers

London & Singapore

Court of Appeal decides air passenger compensation test case

The Court of Appeal has handed down judgment in Blanche v easyJet, determining that an air traffic management decision (or “ATMD”) which causes the cancellation or long delay of a flight is an “extraordinary circumstance” for the purposes of Regulation (EC) 261/2004, also known as the Flight Compensation Regulation. The effect of the Court of Appeal’s judgment is that air carriers will have a defence to claims brought under the Regulation where the impact of an ATMD gives rise to a long delay or cancellation, so long as they can show that the cancellation or delay could not have been avoided even if all reasonable measures had been taken.

Lord Justice Coulson (with whom Lady Justice King and the Senior President of Tribunals, Sir Ernest Ryder, agreed) recognised that the policy behind the Regulation is the enhancement of the rights of air passengers, but held that “the need to ensure ‘a high level of protection’ for those passengers…starts with the need to ensure their safety. The paramount importance of safety considerations explains the significance that Recital 15 [to the Regulation] 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.”

The appeal raises potentially important issues as to the rights of passengers and the liability of carriers where the flight delay is due to the impact of an ATMD. It is estimated that over 1,000 County Court cases had been stayed pending the judgment of the Court of Appeal.

Both sides were represented by all-Fountain Court counsel teams. Mr Blanche was represented by John Taylor QC and Ben Lynch, instructed by Bott & Co Solicitors. easyJet was represented by Akhil Shah QC and Max Kasriel, instructed by Norton Rose Fulbright.

A copy of the judgment is available [here].