Flight delay compensation has received a great deal of media attention in recent months, with consumers becoming increasingly aware of their legal rights if they experience a flight delay or cancellation.

Guest article by flight dealy specialists Bott &Co.

Although EU261/2004 (the EU-wide Regulation that governs flight delays) was introduced back in 2005, there had previously been some ‘grey areas’ around when passengers can claim compensation.

2014 saw two landmark flight delay cases (Huzar v Jet2.com and Dawson v Thomson Airways) go all the way to the Supreme Court. The two cases were binding and covered:

  • How long you have to claim flight compensation (Dawson v Thomson Airways)
  • What is considered an extraordinary circumstance, where the airline does not have to pay delay compensation (Huzar v Jet2.com)

What does the law say about flight compensation?

The right to claim financial compensation is available when passengers are:

  • Delayed for three hours or more
  • Departing the EU or arriving in the EU on-board an EU airline
  • Delayed for a reason not considered an extraordinary circumstance

The law sets out fixed amounts of compensation according to how long you’re delayed and how far you are flying:

Flight distanceLength of delayCompensation
Up to 1,500 km3 hours or more€250
1,500 - 3,500 km3 hours or more€400
Over 3,500 kmBetween 2 EU member States & 3 hours or more€400
Over 3,500 km3 - 4 hours€300
Over 3,500 kmOver 4 hours€600

Six years to claim - Dawson v Thomson Airways

In Dawson v Thomson Airways the airline argued you only have two years to make a flight compensation claim but Mr Dawson’s legal representatives argued that passengers have a period of six years. This case finally went to the Supreme Court, which, on 31st October 2014, refused to give the airline permission to appeal the case again and Mr Dawson won his case.

Dawson v Thomson Airways was a binding case meaning consumers have six years from the date of their flight to make a claim for compensation in England and Wales.

So, what could this case mean for consumers?

  • 221.1 million passengers a year use UK airports (Civil Aviation Authority data)
  • 1.5% of planes flying to and from British airports are late by three hours or more each year, equivalent to 3.27 million passengers (European Commission statistics)
  • 13% of flight delays are caused by extraordinary circumstances, exempting the airlines from paying compensation (European Commission statistics)

Therefore 11.4 million passengers were affected by this case. With an average claim of £380, the case opened up £3.89 billion in compensation for consumers.

Extraordinary circumstances - Huzar v Jet2.com

Huzar v Jet2.com saw the airline argue that technical problems are an extraordinary circumstance and therefore no compensation should be payable for delays caused by such faults.

Mr Huzar’s legal team argued that technical problems are part and parcel of running an airline and therefore compensation should be paid when they are the cause of a delay: Whilst you cannot predict when a technical problem will arise, you can expect that they will happen at some point during the normal operation of an aircraft. The legal team argued that appropriate measures to prevent long delays in these circumstances could therefore be put in place.

On 31st October 2014, the Supreme Court refused the airline permission to appeal the case again and Mr Huzar won. Huzar v Jet2.com was a binding case: technical problems are not an extraordinary circumstance and flight compensation is due where a qualifying delay has been caused by an issue of this nature.

According to the Final European Commission report ‘Evaluation of Regulation 261/2004’, an estimated 80% of flight delays are due to technical problems. This means approximately 2.6 million passengers per year from the last six years were affected by this case, adding up to a total of 17.6 million consumers and potentially £750 million in flight delay compensation.

Surely the airlines are paying up now?

Sadly, it appears that consumers are still having to fight hard to secure the flight delay compensation that they are entitled to.

Just two weeks after the Supreme Court’s ruling that technical problems are not an extraordinary circumstance, the airline made a formal application to put other cases involving technical problems on hold until the outcome was known in a Dutch case (van der Lans v KLM). Other airlines soon followed Jet2’s lead, with Thomas Cook, Ryanair, FlyBe and Wizzair making similar applications in the following months.

Allen v Jet2.com was chosen as a test case to decide whether airlines could put outstanding cases on hold until the outcome of the van der Lans case. The Allen case was heard at Liverpool County Court in February 2015 and the judge ruled, quite emphatically, that the airline could NOT put it on hold.

Ryanair, who had a case joined to the Allen v Jet2.com case, has recently announced it will apply for permission to appeal the decision. If they succeed in getting permission to appeal, the process could take in excess of six more months to play out.

What to do if you might have a flight delay claim?

Click and check

There is a wealth of free resources to help delayed air passengers: Bott & Co’s instant FlightChecker is a good place to start. The free online tool uses the flight date and flight number and cross-checks it against a huge database of flight information to give an instant decision on whether or not you are entitled to claim flight compensation.

Print and post

Once you have established that you do have a potential claim, your next step should be to write to the airline – here is a template. Provide them with the flight date, the flight number and the length of your delay. You should reference EU261/2004 and cite any relevant case law, as well as the amount of compensation you are seeking.

Ask for answers

Claimants frequently find that an airline will respond stating that they are not liable to pay compensation because the delay was due to extraordinary circumstances.

If this happens, you should ask the airline to give you the exact cause of the delay. Request this information in writing, even if you were told the reason for the delay at the airport; it is not unusual for the cause of the delay to change a number of times throughout the claims process.

Keep on the case

Remember: if an airline responds saying your claim has been rejected or put on hold, this does not mean you do not have a claim. Frequently, people who successfully claim against an airline were told they did not have the right to claim in the first instance.

It is also useful to bear in mind that it is not uncommon for passengers to receive conflicting advice on the cause of the delay; for one passenger to be paid out but another person on the same flight to be refused; or for things to be dragged out for years.

Take further action

It may prove necessary to take the case to court. If a judgment is awarded but still not paid, then enforcement action may be needed. Whilst the average claim is for £380, once judgment interest and court fees are added, it can easily reach the £600 threshold for transfer up to the High Court for enforcement.

About Bott & Co’s Flight Delay Team

Bott & Co’s specialist Flight Delay Team was launched after one of the company’s solicitors himself experienced a long flight delay and had difficulty in recovering the compensation he was entitled to. In the two years since it opened, the department has recovered over £4.3 million in compensation for more than 11,000 passengers against around 70 airlines.

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