the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Airlines adopt the brace position in TUI/Nelson (1/2)

European airlines are bracing themselves this morning for the ECJ's judgment in the joined cases of TUI and Nelson (Cases C-581/10 and C-629/10) – expected at 9.30am. This will confirm whether or not airlines are liable to compensate passengers of delayed flights in the same way as if the flight had been cancelled. Recap EC Regulation No 261/2004 (the so-called ‘Denied Boarding Regulations’) specifies the care and assistance and/or financial compensation airlines are required to provide to passengers whose flights are delayed or cancelled. Articles 5, 6 and 7 are, by any standard, unambiguous provisions. Together, they make clear that a right to compensation exists where a flight is cancelled, with the amount determined by the length of the flight. No such right to compensation exists in the case of delayed flights. Or so we thought… It came as something of a surprise when in the 2009 case of Sturgeon (Case C-402/07), the ECJ held that passengers whose flights are delayed by three hours or more are in fact entitled to the same compensation as if their flight had been cancelled. They suffer similar inconvenience to those whose flights are cancelled 'at the very last moment', and the principle of equal treatment demands that both sets of passengers be treated equally. In both cases, passengers’ right to compensation is subject to the defence that the delay/cancellation was the result of ‘extraordinary circumstances’.   The analysis in Sturgeon was roundly criticised in light of the clear wording the Regulations (Poland was the only EU member state to back to judgment). A number of English airlines and the IATA launched judicial review proceedings in the High Court with the aim of challenging the validity of Sturgeon. Separately, in a flight delay case in Germany (Nelson v Lufthansa), the Amtsgericht Köln questioned whether Sturgeon was compatible with the Montreal Convention. Both cases were duly referred to the ECJ and heard together in March this year. In a robust and unrepentant Opinion delivered on 15 May, Advocate General Bot advised the ECJ to confirm its decision in Sturgeon without much fresh analysis. In terms of the thornier, technical arguments raised, the A-G concluded that:   The fixed compensation provisions are not in respect of individual damage assessed on an individual basis but rather a ‘standardised and immediate measure’ of compensation, and so do not conflict with the exclusive liability regime of the Montreal Convention (see IATA, Case C-344/04) Sturgeon does not offend the principle of legal certainty. The recitals to the Regulations make clear that passengers are intended to receive a high level of protection. The interpretation that delayed flights are subject to the same fixed compensation as cancelled flights is necessary to give effect to that intention. This last point is all the more extraordinary given that the A-G is proposing to construe the unambiguous wording of the substantive Regulations so as to comply with the plainly ambiguous wording of the non-substantive recitals.    It remains to be seen whether the ECJ will follow this Opinion or mount an embarrassing climb-down. I know which my money is on!

What is it about Preston County Court?

The case of R (on the application of Sharing) v Preston County Court [EWHC 515] is perhaps a surprising one to comment on in a personal injury blog. It concerns wrongful eviction, rent arrears and judicial review. However it is of wider interest because the claimant, whose claim for damages was dismissed by the district judge and whose application for permission to appeal to the circuit judge was also refused, successfully had the refusal of permission to appeal quashed in the administrative court and remitted to a different circuit judge. Both this case and the case cited below came from Preston County Court and the circuit judge in concern ended up in the judicial stocks...   The facts of Sharing are, in brief, as follows. The claimant brought a claim for damages for unlawful eviction. The defendant relied upon two witnesses: a WPC and another tenant. At trial he said that the WPC had been served with a witness summons but had said she was unavailable - he was a bit cagy about it when pressed. The other witness was held out to be an independent witness. The trial judge found the independent witness to be essentially truthful and that the claimant had lied about a tenancy deposit. He dismissed the claim finding the police evidence favoured the defendant. The claimant then obtained a statement from the WPC to the effect that she had not received a witness summons, she had been available and that when she interviewed the ‘independent’ witness, she had assumed she was in fact the defendant’s partner because of the way they related to one another. The WPC also provided other evidence which undermined some of the defendant’s case. The claimant then sought permission to appeal on the basis of the WPC’s fresh evidence. That permission was refused and hence an application was made to the Administrative Court for judicial review. Wilkie J was troubled by the way the circuit judge had conducted the hearing saying that, from the transcript, it was apparent that he gave counsel for the claimant an ‘extremely rough ride’. He did not permit her to develop the main point she wished to make and he repeatedly said the case had been won or lost because the district judge had not believed the claimant. He found with great hesitation and regret that the circuit judge acted in such a way that a fair-minded and independent bystander would conclude that he had finally and firmly made up his mind from the outset of the application that he was going to refuse it, that he was going to refuse to admit the fresh evidence of the WPC and his repeated interruptions of counsel and the way he focused on the way in which the district judge had decided the case was the clearest possible evidence of apparent bias. The key case on applying for judicial review of the decision of a circuit judge is R (on the application of Strickson) v Preston County Court & Ors [2007] EWCA Civ 1132. There Laws L.J. said that before JR could be granted a defect much more fundamental than an error of law had to be established. He said ‘I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both) and a case where… the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case.’ He gave a number of examples: the court embarking on an enquiry it lacks all power to deal with, failure to enquire or adjudicate upon a matter which was its unequivocal duty to address, a substantial denial of the right to a fair hearing, a court acting ‘incomplete disregard of its duties’. Photo courtesy of Freefoto.com