Airlines run into Wall – Supreme Court Says No

At the beginning of September I published a piece on Huzar v about making claims against airlines for delays, under the EU Regulations (here) and reported that the airlines who had lost in the CA has applied to the Supreme Court for permission to appeal. The substance of the argument was whether a technical defect which caused a delay could amount to “extraordinary circumstances” and hence provide a defence to a claim by a passenger delayed by more than 3 hours.

Well the SC has decided the matter in double-quick time, by deciding NOT to decide the matter at all. They rejected the application for permission to appeal, saying in their rather terse way that

the application does not raise a point of law of general importance and, in relation to the point of European Union law said to be raised by or in response to the application, it is not necessary to request the Court of Justice to give any ruling, because the court’s existing jurisprudence already provides sufficient answer.

The SC also decided an appeal on another airline case – Thomson Airways v Dawson – which was about  whether the limitation period for bringing claims was the normal 6 years or the restricted 2 years imposed on most airline cases by the Montreal Convention. The CA said, not without some hesitation, that it was 6 years. The SC had a lot less difficulty – it refused permission and said merely that

the application does not raise an arguable point of law

So that is that.

The outcome is presumed to be an avalanche of claims against airlines as any delays that are not caused by (in effect) external forces (such as volcanoes, air traffic control problems, wars etc) and which result in a delay of more than 3 hours in arrival can net the passengers up to €800 each.

They are still of course pretty small claims, and so uneconomic for lawyers to bring unless they can do so in real volume, such as Bott & Co do. But hopefully this now means that more passengers will be able to bring them on their own, without having to face the airlines’ arguments that the CA and SC have now comprehensively demolished. Although the airlines may well continue to be difficult and inventive as they have been since the regulations were introduced 10 years ago in 2004.

Some commentators say that the total claims will amount to £10bn (or even £20bn). Who knows, with estimates so far apart?

The downside of course is a possible end to really cheap air fares. Because there is no such thing as a free lunch.


It now seems that the additional cost may be between €1 and €3 per one-way ticket according to a report by the EU Commission mentioned on the Bott & Co website here . So possibly not as bad as it seems.