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Court of Appeal to Settle the Question of Delay and Missed Connections

15-August-2016 18:55
in Aviation and Travel
by Timothy Salisbury

The Court of Appeal is due to hear the case of Gahan v Emirates on appeal from District Judge Benson sitting in the County Court at Liverpool, concerning a case of delay and a missed connecting flight between two non-EU member states. 

Miss Gahan booked a flight with Emirates to fly from Manchester to Dubai and then from Dubai to Bangkok. Her flight into Dubai was delayed by 3 hours 56 minutes, meaning that Miss Gahan missed her connecting flight and had to take a later flight, arriving 13 hours and 37 minutes later than scheduled.  Consequently, Miss Gahan brought a claim for delay compensation against Emirates under Article 7 of Regulation (EC) No. 261/2004 (“Regulation 261”).  District Judge Benson at first instance held that the claimant’s flights were to be considered as separate units and that since the claimant’s second flight fell outside the scope of Article 3 of Regulation 261, the claimant was only entitled to €300 EUR compensation in relation to the delay to her flight from Manchester to Dubai, rather than €600 EUR sought for the delay into Bangkok.  The claimant then sought, and was granted, permission for a ‘leapfrog’ appeal to the Court of Appeal.

Passengers’ entitlement to delay compensation under Regulation 261 was established in the ECJ decision in Sturgeon v Condor Flugdienst GmbH (Cases C-402/07 & C-432/07))[2010] Bus LR 1206.  The subsequent case of Emirates Airlines Direktion v Schenkel (Case C-173/07) [2013] 1 Lloyd’s Rep 1 (CJEU) confirmed that unlike cases under the Montreal Convention, Regulation 261 was concerned only with ‘flights’ and not ‘journeys’.  However, there still remains a question as to where delay should be measured in a case such as Miss Gahan’s where the second flight of a journey falls outside the scope of Regulation 261.  The main source of confusion has been the tension between the domestic and European courts’ approaches to the issue.

On the one hand, in Sanghvi v Cathay Pacific Airways [2012] 1 Lloyd’s Rep 46 (Ch), the High Court, following Schenkel, determined that Regulation 261 was only concerned with individual flight components of any journey, and that since the claimant’s second flight was outside the scope of Article 3 of Regulation 261, he was not entitled to compensation for denied boarding.  This approach has been held to be binding in cases of delay where the second flight was outside Regulation 261’s scope.  Thus, if a claimant’s connecting flight is between two non-Member States, their delay is measured at the intermediate airport, rather than at the final destination of their chosen journey. 

However, just under two years after the decision in Sanghvi, the CJEU appeared to hold in Air France SA v Folkerts (C-11/11) [2013] All ER (EC)  that for the purposes of calculating compensation, delay should be assessed at the claimant’s final destination.  This was on the basis that the inconvenience of the delay was felt here, rather than at the connecting airport.  There is some doubt about whether that was the intention of the CJEU in Folkerts, especially given the fact that the court in Folkerts was considering a separate issue from the referring court. 

In Gahan, District Judge Benson considered that the question that he needed to decide was whether the claimant’s outbound flights should be viewed as a single flight or two separate flights.  In this respect, he felt that he was bound by Sanghvi.  The learned judge distinguished Folkerts on the basis that the defendant was a Community Carrier, and that therefore there was no dispute that both flights fell within the scope of Regulation 261.

Attempts have been made in the County Court to resolve the conflict between the binding High Court authority and a later, contradictory view from the CJEU.  In the very recent case of Raymond v South African Airways (Guildford County Court, 8/6/16) Her Honour Judge Raeside distinguished Sanghvi in relation to delay claims and preferred the view in Folkerts, stating that where the first flight of a claimant’s journey was within the scope of Article 261, delay should be assessed at their final destination.  Although persuasive, the decision of the County Court is nonetheless not binding and provides no legal certainty to claimants or carriers faced with a similar situation.  Judgment in Raymond was delivered just over a month after the first instance decision in Gahan and is cited in the appellant’s notice in Gahan as evidence of a growing body of inconsistent County Court decisions on the subject.

A Court of Appeal decision is much-needed and will provide welcome clarity to this area of law.  A decision to overturn or formally distinguish Sanghvi for delay claims could expose airline carriers to a flood of Regulation 261 claims which the High Court decision had previously stemmed.  Undoubtedly, carriers who route their passengers through non-EU member states will be following proceedings very closely.

A copy of the judgment can be found here.


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