Supreme Court rules airlines cannot rely on crew illness to avoid compensation for delayed travellers: Lipton v BA Cityflyer [2024] UKSC 24

The Respondents had been represented within the Supreme Court docket by Michael Rawlinson KC and Corinne Novell of 12KBW, Max Archer (previously of 12KBW) and Daniel Isenberg of 11KBW instructed by Irwin Mitchell. This put up is written by Michael Rawlinson KC and Corinne Novell.

The Supreme Court docket has now handed down Judgment in Lipton v BA Cityflyer [2024] UKSC 24. This small declare has been thought of by each tier of the civil Judiciary (DDJ Printer 28.06.19; first enchantment by HHJ Iain Hughes KC on 11.02.20; the Court docket of Attraction (Coulson, Inexperienced and Haddon-Cave LJJ) who handed down Judgment on 30.03.21 and now the Supreme Court docket (Lords Lloyd-Jones; Gross sales; Burrows and Girls Rose and Simler JJSC). That’s 10 Judges in complete!

The declare arose out of a flight cancelled on the night of 30.01.18 (the date will change into vital). Mr and Mrs Lipton had been travelling from Milan to London Metropolis Airport however owing to the cancellation they arrived some 2 ½ hours later than they need to have finished. The flight was cancelled owing to the unspecified sickness of the pilot. The Liptons every claimed the fastened sum of 250 Euros they mentioned that they had been entitled to arising from the delay as stipulated by the straight efficient EU Regulation, (EC) No 261/2004. BA demurred by counting on the provisions of Article 5(3) inside that Regulation, which relieved the airline of its obligation to pay the place it (that’s the airline)  may present that

“cancellation is attributable to extraordinary circumstances which couldn’t have been averted even when all affordable measures had been taken”.

Their argument was that unexpected quick discover sickness was a unprecedented circumstance except it might be proven by the passenger (thus reversing the burden relevant beneath the Regulation) that the crew sickness had arisen from a trigger for which the airline itself was accountable. An instance could be the place it had provided contaminated meals in its personal canteen and many others.

Their argument succeeded earlier than the DDJ and earlier than HHJ Iain Hughes KC. It failed earlier than the Court docket of Attraction who held that there was little conceptual distinction between sudden and unexpected mechanical disrepair in an plane (which each the Court docket of Justice of the European Union (“CJEU”) and UK home courts had lengthy held couldn’t quantity to extraordinary circumstances) and the sudden indisposition of pilots and aircrew. BA rapidly appealed to the SC and anecdotally they, and different airways, have averted offering compensation thereafter to passengers who discover their journeys interrupted by vital delay/cancellation owing to flight sickness.

Nevertheless, this was not the one, and certainly on one view, not even the key significance of this case. This different significance arose due to the timings:

Each on the time of the delay and when the matter had come earlier than the DDJ and HHJ Iain Hughes KC, the UK was a member state of the EU or was present process the (then) uncompleted technique of withdrawal throughout which EU derived legislation was deemed to stay in drive as if we weren’t in search of to withdraw.

The declare, being introduced pursuant to Regulation EU 261/2004, was one to which s2(1) European Communities Act 1972 utilized. With a view to grasp the completely elementary nature of the talk earlier than the SC, it’s obligatory for a second to think about that Part. For my objective which is solely to summarise elements of the SC’s Judgment, it is sufficient to recite the next elements of s2(1): “2(1) All such rights, powers, liabilities, obligations and restrictions now and again created or arising by or beneath the [Accession] Treaties…are with out additional enactment to be given authorized impact or utilized in the UK shall be recognised and obtainable in legislation, and be enforced, allowed and adopted accordingly…”

Thus as much as and together with the listening to earlier than HHJ Iain Hughes KC, the place was easy: the Liptons sued relying upon straight efficient EU laws, the that means and extent of which was decided solely by the Court docket of Justice of the European Union (“CJEU”) within the gentle of the TFEU[1], as a result of s2(1) of the 1972 Act permitted them to take action in UK legislation (albeit the exact impact of s2(1) itself grew to become a dwell subject within the enchantment – see under.)

Nevertheless, by the point the matter got here earlier than the Court docket of Attraction, the UK had simply reached and gone previous 31.12.20 ie the date when the Brexit Implementation Interval was accomplished (“IP completion day”) for the aim of Brexit. This was the primary enchantment on any subject due to this fact through which straight efficient European Laws had come to be thought of after IP completion day.

The query due to this fact grew to become: what occurred to the basis of their reason for motion, particularly the fastened stage of compensation arising from the alleged breach of the straight efficient Regulation as soon as we had been not Member States of the EU and had handed out of the transitional phases of the implementation of Brexit, or as Girl Rose was to pithily state the difficulty [50] of the SC Judgment:

“50. It is not uncommon floor, and rightly so, that the delay attributable to the matter [ie the Lipton’s claim] turning into contentious and needing to be resolved by litigation can’t deprive the Liptons of no matter reason for motion they’d on the time of the related occasions which gave rise to it. The query is: what’s it that prevented their pre-Brexit accrued reason for motion being extinguished by the UK’s exit from the EU and the repeal of part 2(1) of the ECA 1972?”

The events had been alive to this subject earlier than the listening to of the Court docket of Attraction and first at our instigation and latterly on the direct invitation of the Court docket of Attraction itself, the events set out their interpretation. Broadly it was to this impact (as set out in [40] of the SC judgment:

EU Regulation 261 had, because of the UK home Brexit laws, change into included into UK home legislation by advantage of the EU (Withdrawal) Act 2018 (EU(W)A) as amended by the Withdrawal Settlement Act 2020.

The that means and impact of Regulation 261 ought to be decided by reference to CJEU case legislation made previous to 31 December 2020.

Basic rules of EU Legislation as derived from the Constitution of Elementary Rights and the Treaty on the Functioning of the EU (“TFEU”) are related to the interpretation of Regulation 261, however in any occasion the one precept engaged on this enchantment, particularly the necessity to present safety to customers, is expressed inside Regulation 261 itself.

The Court docket of Attraction was not sure by any retained CJEU case legislation or any retained basic rules, however may depart from them if it thought of it proper to take action.

Neither celebration contended that the courtroom ought to train that proper as they confined their dispute to the interpretation of Regulation 261 and the European jurisprudence.

Neither celebration believed that the Commerce and Cooperation Settlement (ie the treaty entered into between the UK and the EU as a part of Brexit) “TCA” affected the enchantment.

Inexperienced LJ in his Judgment approached issues in another way and made the next findings:

He discovered that the exact model of the EU Rules which utilized was not the one in drive on the time of the delay however the subsequently amended UK model; (This isn’t central to the story however set out for completeness);

He went on to seek out that the TCA did in truth impact the place of the UK put up Brexit. He discovered that, when learn together with s29 of the Future Relationship Act 2020 which, he held, included the TCA into UK legislation,  any piece of subsisting UK home laws needed to be learn in such a method that that such laws ought to be held subordinate to the phrases of the TCA the place it was at variance with the TCA. It will likely be recalled that the TCA was a bitterly fought over negotiation at some extent the place it was typically thought that the UK was the weaker negotiating companion. Specifically, on his studying, the next provisions of the TCA would trump UK home laws:“AIRTRN 22. [The UK  and EU “share the objective of achieving a high level of consumer protection and shall co-operate to that effect” [ensuring that] “efficient and non-discriminatory measures” [were taken to protect the interests of consumers]”

To proceed the image of the state of the argument earlier than and in the course of the listening to earlier than the SC, it’s obligatory to show to the arguments raised.

BA had obtained permission to enchantment to the SC having argued in writing that while the EU(W)A 2018 was the instrument by which EU legislation (Rules/Directives/CJEU rules/treaty obligations and many others) had been translated into UK legislation, the causes of motion arising out of them weren’t so translated as a result of the 2018 Act didn’t expressly discuss with them.

How then did they, that’s BA, think about that the Liptons may nonetheless preserve their motion after Brexit (the truth that they may so proceed with the declare was not one thing which anybody doubted)? They did so by an ingenious methodology. They additional argued:

UK home laws already made provision for what occurred because of the repeal of laws – it was contained inside part 16 Interpretation Act 1978 which said:

The impact of the Brexit laws was to repeal the impact of part 2 ECA 72: “16(1)….the place an Act repeals an enactment, the repeal doesn’t, except the opposite intention seems….(c) have an effect on any proper, privilege…acquired beneath that enactment…(e) have an effect on any authorized continuing or treatment in respect of any such proper, privilege….and any such ….authorized continuing or treatment could also be …continued…as if the repealing Act had not been handed”.

Thus BA said the state of affairs was this:

As for the time being of IP completion day the Liptons had of their possession one thing which BA described as an ‘accrued EU legislation proper’;

That proper consisted of the flexibility to deliver proceedings based mostly on a breach of the straight efficient Regulation 261/2004 (ie the fitting to compensation for delayed or cancelled flights);

The UK foundation for that proper was s2 ECA 72;

The Brexit laws repealed s2 ECA 72;

However the prior ‘accrued EU legislation proper’ possessed by the Liptons was maintained by operation of s16 of the Interpretation Act 1978

This strategy was styled by the bulk within the SC because the ‘Interpretation Act’ evaluation.

On behalf of the Liptons we respectfully demurred from this evaluation by arguing the next:

The intention of Parliament, clearly expressed by way of Acts such because the EU(W)A 2018, was to create an entire code whereby preparations had been made for the interpretation of then present EU legislation rights into UK home legislation in order to make sure a continuity obligatory for the sleek persevering with operation of UK authorized life and particular person’s persevering with rights;

That this code was embodied in ss2-6 of the 2018 Act;

That while it’s true there was no categorical reference made to causes of motion because of EU Rules Parliament:

Clearly supposed that reference to ‘Rules’ expressly contained in s3 of the 2018 Act additionally included reference to causes of motion arising thereunder and/or;

Causes of motion so arising had been caught up within the ‘miscellaneous’ provisions of s4 of the 2018 Act

However that both method the intention of the laws was that these rights could be translated into UK legislation, to be topic to sovereign management by Parliament, and applied and proceed to have impact in that method.

In brief, there was no such factor as BA’s alleged ‘accrued EU legislation proper’ standing exterior the framework of the 2018 Act; the width and results of which had been essentially wholly undefined and, by Parliament itself, wholly unrecognised.

That had been it in any other case there would come up plenty of odd outcomes as set out under.

First, it might require a conclusion that in deciding who and which EU rights had been to be translated into home UK legislation, Parliament had wholly neglected the one most vital side to the citizen, particularly how such rights had been exercised as a matter of practicality (ie the causes of motion arising from such rights);

Second, if BA had been proper, it might imply that there was an amorphous physique of rights which had been awaiting identification and discovery presumably by way of elucidation within the widespread legislation;

Third, because the 2018 was utterly silent on the existence of those supposed ‘Accrued EU legislation rights’ it adopted that such rights stood wholly exterior all elements of the Act. Included inside the Act had been the provisions which Parliament had handed eradicating the binding impact of the CJEU on UK legislation. We argued that except the Act did apply to the supposed ‘accrued EU legislation rights’ then such rights fell outwith the scheme whereby the binding impact of the CJEU was faraway from them ie the CJEU would nonetheless bind the UK Courts as far as the causes of motion arising out of them had been involved. In flip, because the existence of the reason for motion trusted the width and that means of the fitting itself, this could give the CJEU a seamless management over the rights of UK residents for some interval to return. But additional, given the declaratory nature of CJEU rulings (like these of the widespread legislation, the legislation as said on day X is deemed to be the legislation because it has all the time been) the UK would stay managed by CJEU legislation not simply because it occurred to face as at IP completion day however because it subsequently developed.

No matter one considered the political deserves of Brexit, this clearly was not the intention of the Parliament which handed the 2018 and subsequent laws;

Individually we argued that BA’s strategy required part 2 ECA 72 to have been repealed. We argued that the 2018 Act’s strategy to s2 didn’t quantity to a repeal as envisaged by s16 Interpretation Act 1978. A repeal, we argued, occurred when a substantive proper created in laws was eliminated by subsequent instrument. Part 2 didn’t create a proper, it merely created the structure by which the supply of legislation emanating from the unicameral EU processes entered into the UK’s bicameral system. It was not more than a conduit pipe and to say that part 2 had been repealed within the sense wanted by BA for its argument to work, was to confuse the stoppering up of the conduit pipe with the reversal of the move of the pipe’s contents.

Our strategy was referred to by the bulk within the Supreme Court docket as ‘the entire code’ evaluation.

To finish the image:

It ought to be borne in thoughts that given the UK equal of EU 261/2004 was broadly similar, BA had been by no means ready – regardless of our requests that they need to accomplish that – to establish what sensible distinction any of this made to the Lipton’s declare ought to BA’s defence on ‘extraordinary circumstances’ fail. However in equity to them, it was additionally acknowledged by us all, and the Court docket, that there may effectively be conditions sooner or later the place variations between the unique EU and amended UK texts which rendered the evaluation essential.

While BA positively attacked Lord Inexperienced’s reliance on the TCA we remained impartial on it;

We additionally remained impartial as to which model of the Regulation ought to be used ie as between the EU model in place on the time of the incident or the following model as handed by the UK Parliament as a part of its Brexit course of

In brief, with respect to the second side of this enchantment, the 2 sources of asserted management on the UK’s energy to regulate its personal laws raised on this enchantment had been:

Lord Inexperienced’s studying of the TCA into s29 of the Future Relationship Act 2020; and

What we recognized because the ramifications of BA’s case ought to or not it’s accepted, particularly that in respect of causes of motion, the CJEU would nonetheless bind UK courts of their interpretation of the identical on an ongoing foundation (ie together with any put up Brexit developments.

The SC’s Judgment

This can be a lengthy and sophisticated Judgment and what follows is just not supposed as something aside from a basic information to the Judgments of the bulk given constraints of house.

They decided that the ratio prolonged to the narrower level alone: did delays/cancellations quantity to ‘extraordinary circumstances’ the place they arose from short-notice ailing well being by aircrew/workers thus relieving the airline the responsibility present compensation? This the Court docket answered unanimously within the Lipton’s favour. They did so for the explanations expressed within the Judgment of Coulson LJ under and, in doing so, drew help from the following judgment of the CJEU in TAP Portugal C-156/22, as a labored instance. Thus compensation is equivocally now obtainable the place qualifying durations of delay have been skilled from this trigger.

In respect of the broader, constitutional level, the Court docket cut up 4-1 in favour of the Liptons’ arguments (Lord Lloyd-Jones dissenting). The principle Judgment was offered by Girl Rose and Lord Gross sales (with whom Girl Simler agreed) with Lord Burrows offering his personal judgment on this level which concurred with the primary Judgment. All of this was obiter however clearly of the best persuasive weight since, in deciding as they did, the Court docket was self-consciously offering steering to Courts under confronted with the next questions, particularly:“60….(a) What’s the model of the related EU instrument that applies to the willpower of their declare (b) In contemplating their declare, is the courtroom sure to use rulings of the CJEU that are handed down post-Brexit or might the Court docket have regard to such rulings, being free to determine to not observe them? (c) If the declare makes its approach to the Court docket of Attraction or to this Court docket …..may this Court docket or the opposite related courtroom determine to depart from a pre-Brexit ruling of the CJEU if the check specified within the statute is glad?”

The vast majority of the Court docket adopted the ‘Full Code’ evaluation put ahead by the Liptons and in doing so adopted the reasoning underpinning the evaluation (see for instance [83]; [90-127]). Nevertheless it additionally emphasised in each making these findings and making use of inferential reasoning the truth that construed intention of Parliament was to sever ties with the EU as a supply of legislation and to supply a complete code for incorporating into UK home legislation the fruits of that prior supply. Specifically it rejected Inexperienced LJ’s evaluation relating to the TCA (see [79-80]).  

The bulk answered their very own questions within the following method [132]:

The suitable Regulation textual content to think about is the EU one in drive on the time of Implementation Day and never any subsequent UK model;

That Regulation is deemed to have been included into UK legislation (in order to have change into retained UK legislation[2]) by s3 of the 2018 Act;

Subsequently s6 of the 2018 Act (which offers with the connection between UK Courts and the CJEU applies:

The Court docket is just not sure by any put up Brexit CJEU case legislation in figuring out their declare however might have regard to it (s6(1) and (2) of the 2018 Act;

The SC, CA and plenty of different prescribed Courts, if the statutory check is met, are entitled to depart from any CJEU judgment (even these previous to the completion of IP).

The place does this take us? The SC have recognized the construed intention of Parliament and have left no actual scope for arguing that by way of any supposed or unintended consequence of the Brexit laws of the final authorities, any wider ties of binding precedent or management, aside from these which we already understood to exist, stay between the UK and the EU. This recognized Parliamentary intention was solely enhanced by the consequences of the even-more Brexit oriented and subsequent Retained EU Legislation Act 2023. Thus any future political strikes to create such nearer or extra ties of legislation between the UK and the EU might want to proceed on the

[1] Constitution of Elementary Rights and the Treaty on the Functioning of the EU

[2] The additional impact of ‘assimilation’ created by the REUL Act 2023 was not thought of by the Court docket since on any view it didn’t have an effect on this enchantment.