With an ever growing number of delayed flight claims being raised against airlines as a consequence of the decision in Jet2.com v Huzar, airlines have scrambled to reduce their liabilities by defending claims on the basis that the claims have been brought out of time.
EU Regulation 261/2004 came into force in 2005 providing a right to compensation for passengers who suffer cancellations or flight delays of more than 3 hours unless the delay or cancellation was caused by “extraordinary circumstances” which could not have been avoided even if all reasonable measures had been taken.
A huge number of claims by passengers under EU Regulation 261/2004 had been rejected by airlines by claiming that a “technical issue” had been the reason for the delay and that a “technical issue” would be classed as an extraordinary circumstance for which the airline could escape paying compensation under Article 5(3).
Jet2.com v Huzar EWCA Civ 791
Eventually, the determination of whether a technical issue could fall under the definition of an “extraordinary circumstance” was given in the Court of Appeal case of Jet2.com v Huzar. The English Court of Appeal found that such a technical problem would not be considered as an extraordinary circumstance. Jet2.com did apply to the Supreme Court for permission to appeal the decision but the Supreme Court refused permission.
In light of this decision, any claim previously rejected by airlines for extraordinary circumstances caused by a technical issue can now be pursued as long as the period in which to bring a claim has not expired.
It is the time issue to which defendant airlines have now turned their attention. They do so by two different approaches. The first was to claim that a delayed or cancelled flight claim was subject to a 2 year time period because of the Montreal Convention and whether its provision took precedence over the Limitation Act 1980 of England and Wales. The second was to argue that the parties to the contract had agreed to reduce the time period to make a claim to 2 years by way of contract.
This first issue was examined in the case of Dawson v Thomson Airways Limited EWCA Civ 845.
Dawson v Thomson Airways Limited EWCA Civ 845
Mr Dawson’s Thomson Airways flight to the Dominican Republic was delayed due to crew shortages caused by sickness and was therefore delayed by over six hours and Mr Dawson exercised his right to claim compensation from the airline in the amount of 600 Euros.
The flight had been delayed nearly 6 years before Mr Dawson filed his claim at court as 6 years is the time period set by the Limitation Act 1980 of England and Wales (it is 5 years in Scotland).
Thomson argued that the claim should have been brought within 2 years as per the Montreal Convention. The matter eventually reached the Court of Appeal.
At the Court of Appeal it was found that EU Regulation 261/2004 does not provide for a time limit to make a claim. However the European case of More v KLM (Joan Cuadrench Moré v Koninklijke Luchtvaart Maatschappij NV) had found that the time limit for bringing a claim was a matter for national law and is independent of the Montreal Convention.
Therefore, the time period for bringing such a claim will be in line with the national law. In England and Wales, this is a 6 year time period as prescribed by the Limitation Act 1980.
The parties had agreed to reduce the time period to 2 years by way of Contract Agreement. However, a rising trend amongst defendant airlines such as Jet2.com and Ryanair, is to argue that the Limitation Act 1980 has been contractually reduced to 2 years by agreement between the parties to the contact when the airlines’ terms and conditions are signed.
In Clissold v. RyanAir (Colchester County Court) and Pickard v. RyanAir (Lincoln County Court) in which this issue was considered, the Claimants’ claims were dismissed by the respective Courts as the claims had not been commenced within the adjudged “fairly imposed” two year limitation period in accordance with the airline’s terms and conditions.
For example, Ryanair’s Article 15.2 of their General Conditions of Carriage for Passengers and Baggage provided:
“Any right to damages shall be extinguished if an action is not brought within two years of the date of arrival at destination, or the date on which the aircraft was scheduled to arrive or the date on which the carriage stopped. The method of calculating the period of limitation shall be determined by the court of law where the case is heard.”
Article 2.3.1. provides:
“These Conditions of Carriage are applicable unless they are inconsistent with applicable law in which event such law shall prevail.”
This position where an airline is defending a claim based on the agreed reduction of a 6 year time period to 2 years in the terms and conditions was sent, on appeal to Ayr Sheriff Court to be determined by the Sheriff Principal in Vegara v Ryanair Limited S.L.T. (Sh Ct) 119.
In this case, Mrs Vegara brought a claim on behalf of herself and her son for a delayed flight some 3 and a half years previously. This was still under the national law time period of 5 years for Scotland under the Scottish Prescription and Limitation (Scotland) Act 1973.
At first instance, the Sheriff Court found in favour of Ryanair but allowed points of appeal to the Sheriff Principal. These points included:
- Whether the term “damages” in Ryanair’s General Conditions of Carriage for Passengers and Baggage be interpreted to be equivalent to “compensation” in Articles 5 and 7 of the EU Regulation 261/2004.
- Whether Ryanair’s own terms and conditions could not apply as Article 2.3.1. states that “These Conditions of Carriage are applicable unless they are inconsistent with applicable law in which event such law shall prevail” and the conditions were therefore inconsistent with the applicable EU Regulation.
The Sheriff Principal on Appeal found that:
- A claim for compensation under the Regulation is not a claim for damages. It is not contingent on proof by the passenger of negligence or breach of contract on the part of the carrier. Accordingly a payment under the regulation is not affected by article 15.2 of the defenders condition of carriage as it is not a right to damages. The right under the regulation is an entitlement to compensation, without proving loss to the passenger against the carrier regardless of whether there was any fault on the part of the carrier.
- It followed that Article 15.2 of the in Ryanair’s General Conditions of Carriage for Passengers and Baggage does not limit a claim for compensation and is thus subject to the national law on time limitation, this being 5 years in Scotland.
Conclusion
The arguments surrounding time limitations in flight claims is likely to be a crucial part in the success of delayed and/or cancelled flight claims. What is clear is that courts are following the European Court of Justice case of More v KLM where it was found that the correct period of time for making a delayed/cancelled flight claim will be determined by each Member State’s domestic laws on limitation in spite of the Montreal Convention.
Ryanair have now amended their General Conditions of Carriage for Passengers and Baggage to now say that “any right to damages and/or compensation shall be extinguished.” to cover the distinction between damages and compensation.
That being said, there will be many delayed/cancelled flight claims that were contracted between the parties up to 2014 under the older version of the General Conditions of Carriage for Passengers and Baggage and claimants should get in touch with us to find out if they could make a claim if their flight delay was less than 6 years ago.
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