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The fight back against delayed flights

Christopher Saunders - DAS Law

  1. 19 June 2014
  2. Travel
  3. 0 comments
Interior of a plane

As summer approaches, countless numbers of Brits will be spending their hard-earned cash and jetting off abroad in search of sun, relaxation and enjoyment. However, joyous thoughts of sipping cocktails, fine dining and pleasure can soon fade to misery when things go wrong. Fortunately, for most of us, this will not be the case. Nevertheless, this short article will focus on the distasteful subject of delayed flights and will highlight your legal rights, in line with recent legal developments from the Court of Appeal, and set out the steps that you can take in order to obtain redress when paradise turns into a torturous delay.

Your rights

Under European law, when you travel with an airline either based in the European Union or where your flight is flying to/from a destination within the European Union, you may be entitled to compensation if your travel is delayed.

The amount of compensation that you are entitled to will vary entirely dependent on the length of the delay endured and the anticipated flight distance of your trip. As a rule of thumb:

  • For delays over 2 hours but less than 3 hours: You may be entitled to the following benefits:

    • Free meals and refreshments
    • Free telephone/email use
    • Free accommodation/transport (if the delay is overnight).
  • For delays over 3 hours: In addition to the above, you may be entitled to compensation between £210-£500 per passenger.

  • For delays over 5 hours: In addition to the above, you may be entitled to the cost of the purchase price of your ticket.

Law on the Web handy tip

On occasion, you may decide that a 5 hour delay is too long to endure (understandably so). You may opt to take a refund and make a decision to go home or to take an alternative flight. However, you must remember that even though you have made a decision against “physically” travelling with the airline, you may still be entitled to financial compensation in addition to the refund, provided that the delay is long enough.

“I believe that I am entitled to compensation based on the above- how do I get my money?”

Before hastily marching to and pounding on the front door of your airline provider to recover the compensation that you believe rightly belongs to you, it is important that you can satisfy the following:

The length of the delay

This seems quite straightforward but it can and has caught out many of the unwary amongst us over the years. When calculating the delay it is important to bear in mind that the calculation is based on your arrival at the destination, and not when your flight departs.

By way of example, if you depart from London on a British Airways flight which takes off 5 hours late, yet arrives at the intended destination in under 3 hours of the original estimated arrival time, then you will not be entitled to compensation of between £210-£500 per passenger. However, you will be entitled to the other benefits set out above if your flight is delayed in line with the above.

The airline is responsible for the delay

“I am sorry Mr Evans but your flight is going to be delayed for approximately 5 hours.”

I am sure that we would all share Mr Evans’ frustration (and perhaps anger) when presented with this news. I am also confident that the vast majority of us would immediately point the finger of blame at the airline provider and feel entitled to some form of redress. This is of course a very natural feeling, but what does the law say?

The law tells us that we are only entitled to compensation if the delay was something within the airline’s control. For example, if a delay has been caused by understaffing or administrative errors on the part of the airline then it is likely that you would be able to show that the delay has been caused by “something within their control”. On the other hand, freak weather, war or political unrest may be something which the airline can rely on to avoid paying you compensation. If you have ever had the misfortune of dealing with a delayed flight then you may have heard the airline refer to these types of things as “extraordinary circumstances”.

As you may expect, airlines, when confronted with hundreds (or thousands) of angry customers requesting financial compensation, will do their utmost to reduce their liabilities. Up until recently, airlines would argue that a delay caused by a “technical fault” was an extraordinary circumstance which meant that the unfortunate amongst us would be denied compensation on that very same “technical point”. Fortunately, this position now seems to have changed following a recent legal judgement widely publicised on 12 June 2014.

The recent Court of Appeal case of Huzar v

You may have already heard about this case as it has generated huge media coverage and would have certainly appeared on your television screens over the last few days. If you have not yet had this benefit, then rest assured that Law on the Web will deliver the relevant points of the judgement to you, so please keep reading.

To start, it would be sensible to briefly set out the facts of the case.

Mr Ron Huzar’s flight from Manchester to Malaga was delayed for 27 hours following a wiring defect in the fuel valve being found in the aircraft. After learning of his legal rights, Mr Hazar took a legal claim for compensation of £350 against the airline in June 2013. Regrettably, Mr Hazar lost his claim at first instance.

Undeterred, Mr Huzar (and now with the assistance of a firm of solicitors) successfully appealed against this decision in the Manchester County Court in October 2013. The airline appealed. True to form, the airline argued that the technical fault that caused the delay was an ‘extraordinary circumstance’ and therefore Mr Huzar should not be entitled to any compensation.

In the last month, however, the Court of Appeal ruled in Mr Huzar’s favour once again. Lord Justice Elias tells us that for an event to be deemed to be extraordinary circumstance it must “stem from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned”.

So, that is what the Law Lord has said, but what does this mean for you, and more importantly, how does it affect your entitlement to compensation?

By way of summary, the key take-home points from this case are as follows:

  • It is now easier for you to claim compensation for delayed fights based on technical faults. The judgement is binding on all county courts in England & Wales.
  • A technical fault such as faulty wiring (defined as wear and tear in Mr Huzar’s case) is something which an airline would deal with on a routine basis so will not be deemed to be an ‘extraordinary circumstance’.
  • You may be entitled to compensation even if the fault arises outside of the airline’s inspection and maintenance programme. For example, you can look to claim compensation even if defects appear which could not have been identified by the airline at the time. It does not matter whether the defect(s) is foreseeable, provided that the airline would be expected to deal with such an issue from time to time.
    The reason for this, as the judge explained in the Court of Appeal, is because technical faults are ‘inherent in the running of an airline’ i.e. are dealt with regularly and are not therefore “extraordinary” in any sense of the word. We, here at Law on the Web, very much welcome this common sense approach and I am sure that if you are reading this, then you would tend to agree (unless of course you work for
  • However, an airline may still have a defence if they can show that the defect was caused by something outside of their control, such as sabotage or third party intervention etc.
Law on the Web handy tip

Given that 30% of all delays are down to technical faults, the judgment will have serious financial implications for all airlines. It will come as no shock to learn that Jet2 are already in the process of making an application to appeal the decision to the Supreme Court. If you believe you are entitled to compensation, it would be sensible to take independent legal advice on the merits of your case.

Moving the matter forward

If, after reading the above, you believe that you are entitled to compensation, you should write to the airline together with evidence of your losses.

If your complaint falls on deaf ears then you may gain assistance from the Civil Aviation Authority (CAA).

In the unlikely event that the CAA are unable to provide assistance, then you may wish to consider taking legal action against the airline. The limitation period for claims within England and Wales is six years, but any delay may be unhelpful for your case. It is therefore important to act quickly and to keep copies of any evidence that you have.

Law on the Web handy tip

If you booked your trip with a package holiday organiser then you may forward your complaint directly to that organisation. If they refuse or are unable to help, you may be able to obtain redress from the Association of British Travel Agents (ABTA) or the Association of Independent Tour Operators (AITO) if the package holiday provider is a member of that association.

“I did not fly with an EU based Airline” or “I was flying outside of the EU”. “What can I do in these circumstances?”

Unfortunately, you will not have the same legal rights. However, this does not mean that you are powerless. Some airline providers will offer compensation or other benefits as part of the agreement that they have with you. Law on the Web would suggest checking your terms and conditions and contacting the airline provider directly to understand your rights under the contract. Alternatively, you can use our legal advice helpline for any general help that you may need.

Law on the Web handy tip

If for some reason or another you are unable to claim compensation, it may be worthwhile to make contact with your travel insurer (if you have the benefit of this cover) to check if they can provide any help to you.

Disclaimer: Please note that this article is for general information purposes and should not be used as a substitute for legal advice. The law stated is correct as at the time of writing. Independent legal advice should be sought if you feel that any parts of this article are relevant to any issues that you are experiencing.

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