Lauren Day

Partner, Solicitor & Head of Dispute Resolution

DATE PUBLISHED: 10 Mar 2016 LAST UPDATED: 12 May 2022

Compensation gates fly open for passengers of delayed or cancelled flights

Many airline passengers will be pleased to know that they will now be able to claim compensation when their flight is delayed or cancelled, following the recent decision in the case of Limited v Ronald Huzar [2014]. As many frustrated passengers will be aware, prior to this decision, airlines were able to rely on technical exceptions to avoid paying out compensation when flights are delayed or cancelled even though those affected were severely out of pocket.

Within the relevant EC regulation, the exception applies where the delay or cancellation is caused by ‘extraordinary circumstances’. A test was devised in the case of Wallentin-Hermann v Alitalia, to assist with establishing what that really means. The presiding Judge decided that a technical problem in an aircraft was only an ‘extraordinary circumstance’ when the problem is not inherent in the normal exercise of the activity of the air carrier concerned and it is beyond the actual control of that carrier on account of its nature or origin.

In the Jet2 case, Mr Huzar’s flight from Manchester to Malaga was delayed for 27 hours, following the discovery of a wiring defect. The airline provider asserted that this technical defect was an extraordinary circumstance as it was unexpected, unforeseen and unforeseeable.

However, the Judge found in favour of the passenger, who asserted that the technical defect was an inherent part of the normal exercise of the activity of the air carrier concerned and it was not beyond the actual control of that carrier – it is part of the air carrier’s wear and tear. Further, it was irrelevant that the problem was unforeseeable, as once the problem was identified, it was part of the normal activity of the air carrier to resolve it and was within their control to do so. Therefore, it follows that the defect was not an extraordinary circumstance and was not an expectation. Thus, compensation was awarded to Mr Huzar.

It is worth noting that the airliner went to great lengths to defend this (£350) claim. Over the course of the case, they instructed no less than four barristers and two firms of solicitors, demonstrating how important it was to the airliner that this precedent was not established, as it exposes them to a vast amount of claims going forward.

In summary, airline providers will no longer be able to avoid paying compensation when delays and cancellations are caused by technical faults (or other defects), which stem from the air craft itself. Extraordinary circumstances, in this respect, will now (predominantly) arise when they result from a third party influence, such as strikes, bad weather or air traffic control problems (etc.).

Airline passengers who suffer such delays or cancellations should immediately seek an explanation from the airliner as to the cause. If the airliner sights a defect with the air craft as the cause, passengers should request the compensation that they are legally due. Failing that, they should seek legal advice on their position.

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