The ECJ ruling in the case of van der Lans v KLM has confirmed that airlines are required to pay compensation when flights are delayed due to unforeseen technical problems.
Because of our victory, passengers in England and Wales have six years to take a flight delay compensation claim to court. So you see, we don’t just fight for passenger rights; we shape the very laws upon which they are built.
What Was The Dawson V Thomson Airways Case About?
The Dawson v Thomson Airways case surrounded the issue of how long a passenger has to take a flight delay claim to court.
Flight Delay Regulation EU 261/2004 stipulates that the period of limitation for flight delay claims should relate to the limitation period in the country where the claim is lodged.
At the time of the case many airlines were arguing that passengers in the UK only had two years to issue court proceedings, as per the Montreal Convention’s limitation period which deals with other types of claims such as lost baggage and injuries.
However, Bott and Co’s Flight Delay Compensation solicitors were firmly of the belief that passengers actually had six years to take a claim to court, as provided by S9 of the Limitation Act 1980.
What happened to Mr Dawson and why did he claim?
Mr Dawson’s delay occurred on Christmas Day 2006, on the BY5143 flight from London Gatwick to Puerto Plata in the Dominican Republic.
The flight was due to depart at 11:30am but the Thomson Airways flight was subject to a delay of 6 hours and 26 minutes.
Mr Dawson filed his claim in court just two days before the six year limitation period was due to expire.
Mr Dawson’S Legal Journey
Mr Dawson filed a claim against Thomson Airways Ltd in December 2012 for the sum of €600 – which is the maximum compensation for the distance of flight and length of delay. The airline appointed Robert Lawson QC of Quadrant Chambers while Mr Dawson represented himself in Court.
The airline initially defended the claim on the grounds of ‘extraordinary circumstances’ but dropped that defence in favour of the limitation point on the day of the hearing, arguing that although Mr Dawson did have a valid claim, he was not eligible for compensation because he had not taken his claim to Court in time.
Thomson Airways said that passengers only had two years to claim, and so the limitation period had expired.
The matter was allocated to the multi-track system due to the complexity of the argument after originally being listed at the Small Claims court in Cambridge. His Honour Judge Yelton heard the case on 15th July 2013 and said:
“The issue in this case can be simply stated. It is whether the limitation period for a claim of this nature is (a) two years, as provided by the Montreal Convention of 1999 or (b) six years, as provided by S9 of the Limitation Act 1980. If it is for two years the claim fails, if it is six years the claim succeeds.”
His Honour Judge Yelton found in favour of Mr Dawson explaining that compensation under Article 7 of the Regulation was not within the scope of the Montreal Convention and therefore the two year limitation of the Convention did not apply.
Realising the potential significance of the decision, His Honour Judge Yelton gave Thomson Airways permission to appeal.
Mr Dawson instructed Bott and Co to represent him at the Court of Appeal on Tuesday 13th and Wednesday 14th May 2014 before Lord Justice Moore-Brick, Lord Justice Kitchin, and Lord Justice Ryder who handed down their decision on 19th June 2014 rejecting the airline’s appeal.
Unwilling to accept the Court’s decision, the airline requested permission to appeal from the Supreme Court. The Supreme Court refused permission on 31st October 2014 – meaning the earlier Court of Appeal ruling was upheld – allowing passengers bringing their flight delay claims in England and Wales to claim for delays as far back as six years.
Why Does Dawson V Thomson Airways Affect My Claim?
Dawson v Thomson Airways was a test case, which means that the Supreme Court’s decision is binding on all other Courts in England and Wales.
The landmark ruling meant that UK residents can claim up to €600 compensation for delays as far back as six years.
Why Was The Dawson V Thomson Airways Case So Important?
Figures from the Civil Aviation Authority (CAA) show on average 221.1 million terminal passengers per year use UK airports. According to statistics released by the European Commission an average of 1.5% of flights to/from British airports each year are delayed be three hours or more and so could be potentially claimable.
This is equivalent to approximately 3.27 million passengers per year for an additional four years (total 13.08 million passengers). According to the final European Commission report ‘Evaluation of Regulation 261/2004’, an estimated 13% of flight delays are caused by extraordinary circumstances and therefore under the terms of the regulation would be exempt from paying compensation. This still left an estimated total of 11.4 million passengers who stood to be affected by this case.
The average claim amount is €430 which means that £3.89billion in flight delay compensation was unlocked by the Court victory.
Summary of The Judgment in Dawson v Thomson Airways Ltd
On the 19th June 2014 the Court of Appeal handed down its Judgment in the case of Dawson v Thomson Airways Ltd.
The Court upheld the decision of HHJ Yelton of Cambridge County Court and in so doing they dismissed the airline’s appeal and confirmed that the time limit for bringing a claim for compensation under EC Regulation 261/2004 is indeed 6 years as per Section 9 of the Limitation Act.
In this case the airline accepted the ruling in Joan Cuadrench Moré v Koninklijke Luchtvaart Maatschappij NV (Case C‑139/11). In that case the European Court of Justice was asked the following simple question:-
Is [Regulation No 261/2004] to be interpreted as meaning that, as regards time‑limits for bringing proceedings, Article 35 of the Montreal Convention, establishing a two-year period, is applicable, or must some other [European Union] provision or domestic law be regarded as applicable?
In other words is a claim brought under the Regulation subject to a time-limit of 2 years or some other period.
The Court held that the time-limit for bringing a claim for compensation must be determined in accordance with the rules of each individual country. Furthermore the Court specifically says at Paragraph 28, “The compensation measure laid down in Articles 5 and 7 of Regulation No 261/2004 falls outside the scope of the Warsaw and Montreal Conventions.”
The ECJ therefore made it quite clear that:-
a) The time-limit must be determined by each individual country; and
b) The Regulation falls outside of the scope of the Montreal Convention.
The airline argued that the law of England of Wales, in particular the case of Sidhu v British Airways Plc held that all claims made against an airline which arise out of carriage by air must be subject to the terms of the Montreal Convention.
There was therefore an irreconcilable conflict between the decision of the House of Lords in Sidhu and the decision of the ECJ in Moré.
Mr Dawson argued that the relationship between the Regulation and the Montreal Convention is a matter of European law and as such the Court is bound to follow the rulings of the ECJ in Moré, Nelson, IATA etc.
The Court of Appeal held that this was indeed a question of European law and as such they were bound to follow those cases, which have each held that the Regulation falls outside of the Montreal Convention.
Since the time-limit must not be determined in accordance with the Montreal Convention it falls to be determined by Section 9 of the Limitation Act 1980 which in England and Wales is 6 years for this type of claim.
When Can I Make A Flight Delay Claim?
To work out whether you have a valid claim, first ask yourself the following questions:
- Did I arrive at my destination three or more hours later than scheduled?
- Did my delay happen within the last six years?
- Did my flight depart an EU country OR arrive in an EU country on-board an EU airline?
According to Regulation EC 261/2004, if you answered ‘Yes’ to all three questions you could be entitled to make a claim as long as your delay was not caused by ‘extraordinary circumstances’.
The term ‘extraordinary circumstances’ applies to a number of scenarios where the delay or cancellation was caused by something out of the ordinary; things like:
- Acts of terrorism or sabotage
- Security risks
- Extreme weather conditions (like volcanic ash clouds)
- Political or civil unrest
- Hidden manufacturing defects
- Industrial action (strikes unrelated to the airline e.g. baggage handlers or air traffic control)
How Much Compensation Can I Claim?
Passengers that want to claim for a delayed flight or have a cancelled flight compensation claim are entitled to between €250 and €600 flight compensation each.
The exact amount of compensation is fixed and is calculated according to how long your delay was and how far your flight was. How much you paid for your ticket does not affect the amount of compensation you can claim. This is because the law is there to compensate passengers for the time they lose and the inconvenience of a flight delay, not the price of their airfare.
If you think you may have a flight delay claim, you can use our free flight delay compensation calculator to find out if you have a valid case.
Timeline of events
December 2012 – Mr Dawson brings his claim against Thomson Airways
July 15th 2013 – The matter was heard before His Honour Judge Yelton. The Judge found in favour of Mr Dawson but gave Thomson Airways the right to take the case to the Court of Appeal
May 13th and 14th 2014 – The appeal took place at the Royal Courts of Justice
June 19th 2014 – Lord Justice Moore-Brick, Lord Justice Kitchin, and Lord Justice Ryder handed down their decision, rejecting the airline’s appeal
October 31st 2014 – The Supreme Court refused Thomson Airways permission to appeal the case, upholding the Court of Appeal ruling and creating binding case law.
Read the Judgment in full by viewing it here
A member of The Law Society, Coby helped establish the flight delay compensation sector in the UK.
His work has been recognised throughout the industry, winning numerous awards, including The Manchester Law Society Associate of the Year. Coby has been a key speaker on Flight Compensation, appearing on Sky News, BBC Radio and national newspapers as a flight delay expert.