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Lipton v BA City Flyer Ltd: “extraordinary circumstances” and a guide to applying retained EU law


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Imogen Egan looks back at the recent Court of Appeal decision in Lipton & Anor v BA City Flyer Ltd, considering the interrelation of “extraordinary circumstances” and Regulation (EC) 261/2004. She also considers the approach to be adopted following Brexit.

In this case, the Claimants were booked on a flight, operated by the Defendant airline, due to depart Milan to London City Airport at 17:05 (local time). However, the captain reported feeling unwell at 16:05 (local time), when he was off duty and not at his place of work. He was determined unfit to fly.

Under Regulation (EC) 261/2004 (“the Regulation”), the Claimants sought compensation for a flight which was cancelled because the captain became ill, whilst off duty. The Defendants argued that they should not be ordered to pay compensation because the non-attendance of the captain amounted to “extraordinary circumstances”.

There were very few cases which dealt with staff absence which caused the cancellation of or significant delay to a flight and no authority at all dealing with staff illness.

Both Deputy District and Circuit Judges accepted the Defendant’s argument that because the captain had fallen ill whilst off duty, this amounted to “extraordinary circumstances” and no compensation was due.

The Claimants appealed to the Court of Appeal on the basis that the captain’s non-attendance did not amount to an extraordinary circumstance, and it should make no difference whether illness occurs on or off duty.

The Decision in the Court of Appeal

The non-attendance of the captain due to illness was an inherent part of the Defendant air carrier’s activity and operations and could in no way be categorised as extraordinary. The appeal was upheld for six interlinked reasons set out in the judgment of Coulson LJ:

i) The ordinary meaning of the words “extraordinary circumstances” in Article 5(3) of the Regulation is something out of the ordinary. Staff illness and the need to accommodate it on a daily basis is commonplace for any business.

ii) The interpretation is consistent with the authorities re: staff absence, which is not one of the factors listed in Recital 14 as indicative of “exceptional circumstances”.

iii) It is further consistent with the authorities re: technical defects in the aircraft, in particular mechanical “wear and tear” is not an extraordinary circumstance. The operation of the Regulation must be seen through the eyes of the consumer; the precise reason for the flight cancellation was of “supreme indifference” to the Claimants.

iv) It is further consistent with the authorities re: external or one-off events. Siewert is authority for the proposition than an event can be external but still be inherent to the airline’s operation; even if it could be said that the captain’s illness was external (happening whilst off duty) that would not mean it is not inherent to the operation of the business.

v) Off duty events are relevant. A captain drinking alcohol in the 24 hours before they are due to fly, in contravention of criminal law, would not be an extraordinary circumstance. The Court rejected the Defendant’s submission that this would be an extraordinary circumstance because the pilot would have been on “a frolic of his own”. Flight crew also have obligations to ensure that they are properly rested during stopovers; these obligations are inherent in the carrier’s activity and operations.

vi) An investigation into when and how a staff member falls ill is too granular and contrary to the scheme of the Regulation. “…the consumer’s right to compensation under the Regulation cannot depend on when and where the member of staff ate the suspect prawn sandwich”.

The approach to be adopted following Brexit

It is not clear why, as this claim commenced in 2019 (before the end of the Transition Period), but the Court also considered the status of the Regulation, as an EU regulation, following the United Kingdom’s withdrawal from the European Union. It was held to form domestic law by virtue of the European Union (Withdrawal) Act 2018 (“the Withdrawal Act”).

Though the reasons for the Appeal succeeding in this case are of interest to travel lawyers, of broader interest and application are the obiter comments in judgment of Green LJ, which provide a helpful guide to interpreting and applying Retained EU law. He set out nine basic principles:

i) Start by considering whether “old” EU law is Retained EU Law with reference to the Withdrawal Act.

ii) Consider whether the EU law has been incorporated into domestic law, or revoked.

iii) Give the EU law a purposive construction, taking into account the recital and other principles referred to in the body of the regulation and in the recitals.

iv) When interpreting the EU law, include any provision of international law that has been incorporated into the EU law by reference.

v) The meaning and effect of the EU law should be determined by reference only to case law of the CJEU before 11pm on 31 December 2020 (the date and time of the UK’s withdrawal). Case law made since is not relevant

vi) General principles of EU Law from case law, derived from the Charter of Fundamental Rights, and the Treaty on the Functioning of the European Union are relevant to its interpretation.

vii) The Court is not bound by any retained CJEU case law or retained general principles and may depart from them if it considers it right to do so.

viii) The provisions of the Trade and Cooperation Agreement (“the Agreement”) and the European Union (Future Relationship) Act 2020 (“the Relationship Act”) may be relevant to the effect of domestic law where the subject matter of that law overlaps with the subject matter of the Agreement and the Relationship Act, insofar as domestic law does not already cover the subject matter of the Agreement.

ix) If domestic law does not already reflect the substance of the Agreement then domestic law takes effect in the terms of the Agreement. This may require transposition in order to achieve the required effect. (This reflects the terms of s29 of the Relationship Act).

This judgment is currently the best guide for advocates and judges in applying Retained EU law and will likely direct the structure of submissions on this point for the foreseeable future.

The judgment

Read the full judgment in Lipton & Anor v BA City Flyer Ltd here.

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Imogen Egan has a growing personal injury practice and is experienced in travel injury, holiday illness claims and of challenging expert evidence on causation issues. She has experience of a wide range of hearings in the County Court and regularly drafts pleadings and provides advice on merits.

She also specialises in employment, public, and clinical negligence disputes.

If you would like to discuss any of the issues covered in this article please contact Imogen directly or via her practice management team; Paul Barton or Mark Gardner on +44 (0)20 7353 6381 who would be happy to have a discussion in the strictest of confidence.


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