Regulation 261/2004: English CA on “extraordinary circumstances” and time bar to claims

The England and Wales Court of Appeal delivered two judgments on the interpretation of “extraordinary circumstances” and the time bar to compensation claims under Regulation (EC) Nr. 261/2004 on passenger rights in the event of flight long delay, cancellation and denied boarding. The judgments are in line with previous case law of the Court of Justice of the EU (CJEU) on these issues.

The first judgment, on the case Jet2.com v. Huzar, interpreted the meaning of the “extraordinary circumstances” defense, which precludes passenger compensation under the Regulation 261/2004. The case concerned a 27-hour delay caused by a wiring defect in fuel valve circuit that could not have been prevented by prior maintenance or prior visual inspection. The CA took into account mainly the CJEU’s judgment in the case C-549/07 Wallentin-Hermann and found that technical defects fall under “extraordinary circumstances” when two conditions are cumulatively satisfied: (a) the defect is not inherent in the normal exercise of the air carrier’s activity and (b) the defect is beyond the carrier’s actual control. In the case at hand the first condition was not fulfilled; therefore the airline had to provide compensation for the delay.

The second judgment, on the case Dawson v. Thomson Airways, clarified that the time bar to pursue a compensation claim under Regulation 261/2004 is set by domestic law and not by the 1999 Montreal Convention on air carrier liability. The Court based its judgment on the CJEU’s case law, according to which Regulation 261/2004 and the 1999 Montreal Convention have a distinct scope of application and regulate different cases. Since Regulation 261/2004 contains no provisions on time bar of claims, domestic law is applicable. Therefore, the time bar for claims in that particular case is defined by the applicable English law, which is six years. Note here that this issue had been already resolved by the CJEU in the case C-139/11 Cuadrench Moré, whose judgment was cited by the CA.