English Court of Appeal finds non-EU airlines liable for missed connections

18th December 2017 by Sue Barham

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The issue has been a thorny one for airlines since the CJEU judgment in Air France SA v Folkerts (Case C-11/11, 2013) first extended the principle of EU 261 compensation being payable for flight delays resulting from missed connections.

Whilst there has been a degree of consensus in the courts of many EU Member States in favour of claimants, the English county courts (the usual forum for EU 261 claims) have been split on the question. Some have decided for the passengers, but others have rejected claims and held that liability does not attach where the missed connection concerns a flight of a non-EU carrier departing from an airport outside the EU. Those judgments have been based upon analysis as to the correct scope of EU 261, previous English High Court case law, and principles of extra-territoriality. The Gahan and Buckley appeals, each of which concerned flights by Emirates and missed connections in Dubai, were pursued largely with the aim of obtaining some certainty for airlines and passengers alike as to how claims of this type should be dealt with.

The Court of Appeal has come down firmly on the side of the passengers in this legal debate – perhaps not a great surprise given the broad consensus which already exists in courts in other EU Member States on this issue, and bearing in mind the raison d’etre of EU 261 as consumer protection legislation which is, as the Court of Appeal referred to up front in its analysis of the law “to afford a high level of protection for passengers, including against the inconvenience caused by delay to flights”. However, although the actual result is not particularly startling, there is an unease about the consequences of some of the Court’s analysis.

In brief, the Court of Appeal dismissed arguments as to scope of EU 261 and extra-territoriality and confirmed liability for airlines. The following are the key points from the judgment:

The Court of Appeal judgment will require careful review in light of the many missed connections claims currently stayed by the courts in England. At the time of writing this article it is not known whether the Gahan v Emirates and Buckley v Emirates cases will be appealed further to the Supreme Court.

Sue Barham is a Consultant in Holman Fenwick Willan’s aerospace team. She can be contacted at sue.barham@hfw.com

About the Author

Sue Barham is a partner in the aerospace team at Barlow Lyde and Gilbert and handles a wide range of regulatory and dispute resolution work for the aerospace sector.

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