£17.6million court case stands to benefit 54,000 delayed passengers in the UK.
- Judge rules that lightning strikes are NOT one of the ‘extraordinary circumstances’ that excuse airlines from paying flight delay compensation
- European Flight Delay Regulation EC 261/2004 says that passengers delayed by three hours or more in the last six years may be able to claim up to €600 compensation, as long as the delay was not caused by extraordinary circumstances
- But the Regulation does not provide a specific list of extraordinary circumstances, leading to long court battles between airlines and delayed passengers
- Bott and Co Solicitors, who acted on behalf of Michael Evans say the ruling could benefit 54,000 delayed passengers across the different airlines, totalling £17.6million in flight delay compensation [See notes to editor]
A Judge has ruled that lightning strikes are NOT a valid excuse for airlines to avoid paying flight delay compensation.
Her Honour Judge Melissa Clarke ruled in favour of passengers Michael Evans and Julie Lee today (14/01/16) in the appeal case of Evans v Monarch Airlines Ltd at Reading County Court. The Judge awarded the passengers €600 (£450) each for a five hour flight delay.
Although the decision is not legally binding on other courts, it follows an appeal hearing at Luton County Court (where a large amount of flight delay cases are heard) and is the lead case on the issue of lightning strikes. As such the decision will be highly persuasive in flight delay cases involving lightning in English and Welsh courts.
Planes are designed in such a way that when they are struck by lightning mid-air it is not considered a danger to passengers on-board. The vast majority of aircrafts that are struck by lightning arrive safely and on time.
However, delays occur when the plane lands and is subject to mandatory safety checks and the airline does not have relief aircraft in place to ensure passengers on any subsequent flights are not delayed.
In this case Monarch did not have spare aircraft available at Gatwick or Hurghada so passengers had to wait for the plane that had been struck by lightning to go through safety procedures in Gatwick. [See notes to editor for more information about the flight in question]
Michael Evans from Northamptonshire, who was on his way home from a two week holiday with his partner Julie Lee when he suffered the five hour delay said:
“When we got to the airport to check in we must have been standing queuing for an hour or so, before staff told us to get out of the line. We were stuck in the departure lounge for hours.
“When we finally got back to England five hours late, waiting for our bags took over an hour and a half. That was the final straw.
“Now every time we talk about this holiday all we mention is the delay so it’s kind of taken the shine off it. At least the compensation we’re finally getting will go some way to make up for that.”
Although the Regulation does not give specific examples of extraordinary circumstances, case law says that an event must be something that is not ‘inherent in the normal exercise of the carrier’s activity’ in order to be considered extraordinary.
Bott and Co Solicitors successfully argued that lightning strikes cannot be considered extraordinary because they are they are part of the day to day running of any airline:
“Aircraft fly through the skies. On occasion they are struck by lightning. They are designed to withstand such lightning strikes, continue flying, reach their destination and then be investigated and repaired according to the manufacturer’s instructions.
“This is not extraordinary. It is entirely inherent in the normal exercise of the carrier’s activity and that is exactly what happened in this case.”
Bad weather is not the airline’s fault, but the law says it is their responsibility. If airlines are not willing to put measures in place to deal with delays caused by weather – something which is a daily concern for them – they must be prepared to compensate passengers for their loss of time.
Monarch attempted to argue that when a plane has to undergo mandatory checks after a lightning strike, this should be considered an ‘unexpected flight safety shortcoming’, which is one of the events that Regulation EC 261/2004 states MAY be an extraordinary circumstance.
But Her Honour Judge Melissa Clarke ruled:
“Damage caused by a lightning strike may well be an unexpected flight safety shortcoming, but that does not make it an exceptional circumstance […]an unexpected flight safety shortcoming is only an exceptional circumstance if it is not inherent within the normal exercise of the carrier’s activity”
Following today’s ruling, Bott and Co flight delay lawyer Coby Benson said:
“This case is about the airline industry having absolutely no measures in place to deal with issues which occur on a day to day basis.
“Bad weather is not the airline’s fault, but the law says it is their responsibility. If airlines are not willing to put measures in place to deal with delays caused by weather – something which is a daily concern for them – they must be prepared to compensate passengers for their loss of time.”
The Civil Aviation Authority includes lightning strikes in its list of extraordinary circumstances but as Judge Clarke said in today’s ruling, the list is not legally binding and has been proven wrong in court a number of times as evidenced.
Judge Clarke said:
“I give no weight to it [the CAA’s list]. It is not legally binding. It is clear from its long list of deletions and amendments, arising from changes enforced upon it by decided cases, that the Civil Aviation Authority’s view on what should be considered extraordinary circumstances for the purposes of Article 5(3) has often been at odds with that of the courts. I cannot see that it helps me at all.”
Notes To Editor
Flight ZB771 from Hurgada to London Gatwick (4th July 2014)
The flight delay in question occurred when a plane due to depart Hurghada Airport (Egypt) at 8:05pm was struck by lightning on an earlier 10:25am flight from Nice to London Gatwick.
The plane landed in Gatwick safely, but temporary repairs needed to be made to the wingtip before the flight could take off again.
Monarch then used the same aircraft to fly from London Gatwick to Hurghada. Evans and Lee’s flight was due to depart Hurghada for London Gatwick at 8:05pm but was delayed by five hours due to the disruption affecting the flight earlier in the day.
Working out for the £17.6million figure
Based on the Civil Aviation Authorities statistics on airport traffic and delays, as well as Bott and Co data on cases accepted and concluded.
1,350,000,000 passengers travelled through UK airports in the last 6 years. (CAA Airport Traffic Report)
1% of flights cancelled or delayed for longer than 3 hours. (CAA punctuality statistics)
80% of those flights are claimable. (Based on our data)
0.5% of those flights are lightning strike cases. (Based on our data)
Average compensation amount is €434 per passenger. (Based on 43,000 successful passenger claims)
Exchange rate of €1.33 to the pound (Bank of England)
1,350,000,000 divided by 100 means 13,500,000 passengers delayed for more than 3 hours or cancelled in the last 6 years.
80% of those passengers are entitled to compensation – 10,800,000 passengers in the last 6 years.
0.5% of those flights are related to lightning strikes = 54,000 passengers in the last 6 years.
54,000 X 434 = €23,436,000
€23,436,000 divided by 1.33 = £17.6 million
Bott And Co And Flight Delay Compensation
To date (14/01/2016), Bott and Co has recovered over £13.5million in flight delay compensation for more than 43,000 passengers, since the department launched in 2013.
Bott and Co took the landmark case of Dawson v Thomson Airways to the Supreme Court and won in 2014. The ruling meant that passengers in England and Wales have six years to take a flight delay claim to court. The decision unlocked £3.89billion in compensation. Find out more here.
Bott and Co took the landmark case of Huzar v Jet2 to the Supreme Court and won in 2014. The ruling meant that airlines can no longer claim that ‘technical issues’ are extraordinary circumstances. The decision unlocked £750million in compensation. Find out more here.