18 May 2017

Flight Delay Compensation – The Connecting Flight Problem

busy airport
An airline sells you a ticket from, say, Heathrow to Sydney via Hong Kong. The first leg is delayed 2 hours and you miss your connection, arriving at your ticketed destination (Sydney) well over 3 hours late. Considering the delay length, compensation may be due (depending on other factors we won’t explore further here). The flight departed from the EU and arrived over 3 hours late – simple!

Unfortunately it is not so simple, and this is where matters get complicated when it comes to flight delay compensation. Some airlines rather selectively reason that this journey is in fact two separate flights, despite the fact that this was one ticket purchase. They contend that only the first leg departed from the EU, so only the delay to the first leg applies for the purposes of calculating compensation. In this example, as the delay on the first leg is only 2 hours, this selective reasoning allows the airline to deny paying compensation. The second leg departed from outside the EU and arrived outside the EU, so this leg – if taken alone – would not qualify for compensation.

As you can see, the crux of the issue here is whether the journey counts as one journey or two. Airlines will understandably interpret this situation in their favour, and classify the journey(s) however it suits them, often as two separate journeys so they do not have to pay compensation. But is this correct? What does the law say?

In an ideal world, the law in the UK would follow the legal precedent set in the Folkerts case (C-11/11) in the European Court of Justice (ECJ). In this case, the journey in question was Bremen to Paris, then via Sao Paulo to Asuncion. The Court ruled that the journey in question was to be considered as a whole, and that the delay needs to be calculated upon arrival at the final ticketed destination. But we don’t live in an ideal world, so airlines and their lawyers will take advantage of any ambiguity whatsoever that may exist in the law.

Before the ECJ ruled on the Folkerts case, a similar case had been through the UK High Court, setting its own legal precedent on this matter. This was the case of Sanghvi -v- Cathay Pacific, and in this case the judge ruled that the different legs of the journey must be considered as separate flights. This would obviously impact many flight delay claims where passengers had travelled on one ticket to their destination but via different legs. If these journeys were considered as separate flights, often the second leg will fall outside the scope of the Regulation, thus allowing the airlines to avoid paying in many of these cases or pay less due to the delay and distance being calculated differently.

The problem here is that under the UK legal system, lower Courts are bound to follow the ruling of the higher UK Court. Ultimately, the ECJ is the highest Court binding on lower UK Courts, so they should follow the Folkerts ruling nonetheless. But wily lawyers working for the airlines have successfully argued in many cases that the Folkerts case is not directly analogous, so the ECJ precedent does not apply, and therefore the Court are bound to follow the Sanghvi ruling of the UK High Court. They argue that the Folkerts case applies to flights where the connecting flight was within the scope of the Regulation, whereas the Sanghvi case is more relevant to cases where the connecting flight falls outside of the scope of the Regulation.

Thankfully all this may soon change. The Sanghvi ruling can only be reversed by a higher UK Court, such as the Court of Appeal, and there are two such cases due to be heard at the end of July 2017 in the Court of Appeal, Gahan -v- Emirates and The Buckleys -v- Emirates. In the Gahan case, the first leg arrived at the intermediate destination delayed over 3h but less than 4h, so the issue at stake is the same in principle; if the delay was only measured at this intermediate airport, not at the final destination, the amount of compensation would be less due to the length of delay and the distance. The key principle is whether the flights should be considered together or separately, and hopefully the Court will find that the journey should be taken as a whole, thus overturning Sanghvi and bringing this principle into UK law.

The Buckleys’ case is slightly different but deals with the same key principle, while varying very slightly in circumstance. In this case the delay of the first leg was not long enough to qualify for compensation, but at the final destination it was. It is hoped that a similar ruling in this case to the Gahan case will not just overturn the precedent of the Sanghvi case, but will also prevent airlines from arguing against the Gahan precedent (assuming there will be one) based on technical differences, as they have done with Sanghvi over Folkerts due to the slightly different circumstances. We look forward to the Court of Appeal’s findings on both cases!

The UK Aviation Regulator, the Civil Aviation Authority (CAA), has also been working to change the behaviour of certain airlines on exactly this issue. It is the position of the CAA that airlines claiming that different legs (booked as one journey) are separate journeys, and thus refusing to pay compensation on this basis, are in fact in breach of the law. Needless to say, Emirates is amongst these airlines. The CAA are now taking separate legal steps to force the airlines to change, details of which can be found here: http://www.caa.co.uk/News/Five-major-airlines-face-enforcement-action-for-denying-passengers-compensation-for-delayed-flights/

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Big thanks for the £304.70 transferred to my bank account today. My claim related to a three-leg flight from Norwich UK to Phoenix USA via Schiphol. The CAA suggested I had a good case but could do nothing because the delay occurred within Dutch jurisdiction. I twice did battle with KLM/Delta myself but they would not budge. Another claims firm tried but threw in the towel. So congratulations to Claim4Flights for taking it on and winning – and for getting the money transferred into my bank account within two days of notification. Very impressed!

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