Last chance saloon for the "technical delay" defence

Posted by Ian Skuse on
Community airlines and all carriers leaving an EU airport are obliged to comply with European Regulation EC 261/2004 (“the Regulation”).  This provides for minimum levels of compensation payable to passengers for flights which are delayed, causing a late arrival at their eventual destination in excess of 3 hours, and on a sliding scale of €250/€400 or €600 Euros depending on the length of journey.  Similar compensation is available for passengers on cancelled flights or where there is denied boarding. 

The Regulation has caused major financial concerns for the carrier community, where even the best run airlines with modern highly maintained fleets, fall victim to claims to which there is a limited or no defence.  The Regulation has given birth to a large community of claims farmers and legal firms managing volumes of consumer cases, and the English lower tier courts have been swamped with cases for compensation. 

Not surprisingly, there have been a series of cases brought in our higher Courts and in the European Court of Justice, seeking to establish proper interpretations for the Regulation so that their scope and the liability of airlines can be determined. 

From the carrier’s perspective, many unexpected technical problems can delay a departing flight.  Many defects are on the “minimum equipment list” requiring mandatory repair and inspection before departure can occur.  There is particular concern where aircraft parts fail within their usual lifespan, despite an aircraft being maintained to the highest level. 

The European Court of Justice has ruled this month in the case of Van der lans v. KLM, that technical defects to an aircraft even if entirely unexpected and despite high maintenance regimes are not “extraordinary circumstances” excusing the airline from paying compensation to delayed passengers.  In the Van der lans case, there were two defective components namely the fuel pump and a hydro mechanical unit.  Discovery of these faults occurred in Quito, Ecuador on a KLM flight departing for Amsterdam.  The replacement parts were not available at such a small airport and had to be flown in from Amsterdam for installation, before the flight could depart.  The defective components were both within their average lifetime and there were no advices from the manufacturer about defects possibly arising when these components reached a certain age.  The Court found that these defects could not amount to ‘extraordinary circumstances’.

From the Judgment, it now seems that only hidden manufacturing defects or acts of sabotage and terrorism will amount to extraordinary circumstances defeating a claim under the Regulation.

The national enforcement body in the UK, the CAA has brought action against Jet2, Air Lingus and Wizz Air to enforce the Regulation and to bring all airlines into line.  For the airlines, it is hoped that a new European regulation will be implemented in the future to take into account the enormous cost of compliance with the Regulations and the fact that technical delays are often outside of the carrier’s control.  In the meantime, further clarification is likely to be sought over delays caused by cabin crew sickness, defects to airport equipment, strikes, ATC and weather, and whether those circumstances might be ‘extraordinary’.

About the Author

Ian is a leading Commercial Lawyer in the airline, business travel and leisure travel sectors. He is a well-known and respected key adviser to travel businesses, and regular presenter and commentator on airline and travel trade issues.

Ian Skuse
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