Those familiar with the legal landscape around flight compensation claims (and let’s be honest, if you’re not why would you read beyond that comment) will be familiar with the case of Huzar v Jet2.com. Details of the judgment can be read here, but it’s worth remembering the facts once again.
Mr Huzar commenced proceedings as a litigant in person at Stockport County Court in relation to flight number LS810 on 26th of October 2011 from Malaga to Manchester. This flight was subject to a delay of in excess of 24 hours and the air carrier defended on the basis that a problem with the fuel shut-off valve amounted to an extraordinary circumstance. They were successful in the first instance before District Judge Dignan at Stockport County Court on 10th of June 2013.
Mr Huzar instructed Bott and Co to pursue an appeal on his behalf. This was heard before His Honour Judge Platts on 8th of October 2013. His Honour Judge Platts reserved his judgment to consider the issues before handing down his decision on the 24th of October 2013, confirming the appeal was successful. Paragraph 27 and 28 of the judgment confirmed:
“Against that background I am persuaded that in this case the cause of delay or cancellation was the need to resolve the technical problem which had been identified. That being the case, in my judgment it does not matter how the technical problem was identified. Whether it was identified by routine maintenance (as was the case in Wallentin) or as a result of a warning light during flight (as in the present case) seems to me to be irrelevant. Equally and for that very reason the fact that it was unexpected and unforeseeable is also irrelevant. The reality is that once a technical problem is identified it is inherent in the normal activity of the air carrier to have to resolve that technical problem. Further, the resolution of the problem, as was demonstrated in this case, is entirely within the control of the carrier.
“On such an analysis the delay caused by the resolution of an unexpected, unforeseen and unforeseeable technical problem cannot be said to be an extraordinary circumstance given the Wallentin test. Air carriers have to encounter and deal with such circumstances as part of running an airline just as the owner of a car has to encounter and deal with unexpected and unforeseen breakdowns of his car.”
The “Wallentin” case referred to is Wallentin-Hermann v Alitalia, a European Court of Justice case heard on 22nd of December 2008. This case is binding on all courts within the United Kingdom and sets the tests the airline has to meet in relation to technical defects:
i. That they must show that it “stemmed from events which are not inherent in the normal exercise of the activity of the air carrier concerned” i.e. the inherency test.
ii. The air carrier “must establish that, even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able – unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time – to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight” i.e. the reasonable measures test.
The air carrier must meet both these tests in order to be successful. If they fail on one then compensation must follow.
The order made in Huzar by His Honour Judge Platts is not binding in the same way as Wallentin-Hermann is, but it is certainly very persuasive coming as it does from a Circuit Judge at appeal rather than by a District Judge or Deputy District Judge who usually hear small claims matters. It is also “our law”, in that it is a case heard within our legal system, drafted in plain language and clearly sets out the position without ambiguity.
This judgment, in accordance with Wallentin, presents a significant problem for air carriers. Data suggests that “technical defects” amounts to 80% of the arguments in litigated cases and we now had affirmation of Wallentin that this was not a valid defence. Given the conclusive nature of the judgment and the impact it would have on them it is perhaps unsurprising that they requested leave to appeal.
As it stands the application for leave to appeal will be heard at the Court of Appeal between 9th and 29th of January 2014. If they are refused leave to appeal then passengers will be able to rely on not only Wallentin (binding) but also Huzar (persuasive) in their efforts to pursue compensation. It does not mean that the fight has been fought and won, that airlines cannot defend these cases any further and that you simply need to turn up at court with the judgments for victory – but it is certainly a powerful tool in making your argument.
If they are granted leave to appeal then the matter will be listed for hearing, likely sometime in 2014, where the Court of Appeal will hand their judgment down in relation to this argument.
If this were to happen then we are in good news/bad news territory. The good news is that if the Court of Appeal upholds Huzar, or hands down a judgment of a similar nature, then this will be binding on all UK courts and the Judiciary hearing these small claims will be obliged to follow it. The bad news is that to reach that point, each and every case will be stayed pending the outcome.
A stay means that the case is placed on hold pending the outcome of the lead case – Huzar in this instance. Bott and Co have issued over 1,000 sets of proceedings on behalf of passengers, 80% of which would likely be stayed if leave to appeal is granted. If you are a litigant in person and your case is on technical defects then it’s likely your case will be stayed too.
Frustrating as this may appear, particularly given that the appeal has no relevance on Wallentin which is still binding on our courts, we ultimately believe this is a good thing. Consistency of thought, a better understanding of the regulations and proper enforcement of the passenger rights are incredibly important issues for the flight delay compensation Department at Bott and Co and something we have strived towards since we went live as a department on 21st of February 2013. There are two schools of thought when it comes to these regulations; those who know about them, understand them and can apply them and those who have never heard of them and have no knowledge of them.
The Judiciary, particularly those who hear small claims cases, have incredibly difficult jobs because they have to have a knowledge and understanding of so many different issues and apply the law to them and we simply cannot expect them to understand complex European Regulations which they may never have heard of before, and where they have a limited amount of time to digest the regulations, listen to the arguments and provide a judgment. The reality is that in value terms these are small claims cases, but the complexity of the argument lends itself to the Fast or Multi-Track where the Judiciary have the proper time afforded to them to familiarise themselves with the regulations and issues in question. It really is a poisoned chalice for them and anything which can ultimately provide clarification for them has to be good news for passengers.
We are already beginning to see cases stayed en masse at a number of courts pending the outcome of appeals. Our message would be that if you are a litigant in person, if you have a hearing prior to the Huzar application being heard and if you have a technical problem directly linked to your flight then you may want to consider whether a stay is appropriate in your case, assuming the court doesn’t stay the matter of its own accord. The same applies if you issued proceedings in relation to a flight two years after the date of departure; we have a second case due to be heard at the Court of Appeal in May 2014 called Dawson v Thomson Airways Ltd where Limitation will be clarified for passengers. In summary we say you have six years to commence your claim in accordance with the Limitation Act 1980 whereas the air carrier says that you have two years in accordance with the Montreal Convention.
It is difficult to talk about timescales because we are at the behest of court waiting times. The quickest outcome will be if leave to appeal is denied we could see a conclusion in January 2014. If leave to appeal is granted it may be that we do not have the second hearing until the end of 2014 which appears unpalatable, but is ultimately for the greater good as further clarification is provided for passengers.