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Legal advice: flight compensation rules

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Profile photo of Thomas Holloway Thomas Holloway Which? Legal Adviser
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Airlines must prove that delays were caused by extraordinary circumstances. Here’s how we helped two members receive £926 compensation in court.

Last summer, Which? Legal members Paula and Stephen were due to catch a Jet2 flight home to Leeds International after their holiday in Alicante.

Their flight was delayed for more than three hours. Jet2 told passengers that this was caused by fog and a mechanical fault with the plane.

When they got home, Paula and Stephen applied for compensation for the delay, but Jet2 rejected their claim.

It said that the poor weather conditions were out of its control, and so it didn’t need to pay out.

What is the ‘EC 261/2004′ regulation?

We advised Paula and Stephen that their flight was covered under ‘EC 261/2004’.

This European Regulation gives passengers the right to claim compensation if their flight has been delayed for an extended period or cancelled.

Compensation amounts depend on the distance of travel and the length of delay. In this case, each passenger was entitled to claim €400. Jet2 maintained that it was not liable, because of the weather.

But we felt it hadn’t given enough evidence to support this. We gave guidance to Paula and
Stephen on how to escalate their case to the county court.

At the hearing, Jet2 was criticised for failing to disclose the weather reports to support its case, and the couple were awarded £926.

Extraordinary circumstances

An airline does not have to pay compensation for a delay or cancellation if it was caused by an extraordinary circumstance beyond its control.

The airline must also have taken measures to keep the flight on time. Dangerous weather conditions can be classed as an extraordinary circumstance.

But mechanical issues are usually within the airline’s control because the airline’s fleet should be kept well maintained.

In this case the court found Jet2 liable for compensation, plus court fees and reasonable expenses.

Have you ever been denied compensation for a flight delay? What was the reason given?

Comments
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Fevzi Hussein says:
14 February 2020

I fell for the excuse that there were mechanical issues and the CAA wasn’t helpful either. It was over a year ago. What are the timescales for pursuing a claim, or challenging the finding of the airline?

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James Attew says:
17 February 2020

Hi Fevzi

Thank you for your message. If Article 261/2004 applies to your flight, then you have six years from the date of the flight in question in which to make the claim against the relevant airline.

As a potential alternative to taking an airline to court, many airlines are members of adjudication schemes to determine such claims, but these schemes will often not accept jurisdiction over claims that are brought to them over 12 months since the date of any final response from the airline to the claim, or if the airline has not responded, 12 months since the date the claimant last corresponded with the airline.

As such, it may be that you would need to pursue the airline through the relevant civil courts.

Best wishes,

James

(This information is provided by Which? Legal. To join call 01174 054 854 or visit Which? Legal to find out more.)

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Em says:
15 February 2020

Members reading this article might mistakenly assume they have no claim against an airline in the event of severe weather. It is worth stressing that compensation is not the same as out of pocket expenses you might incur, if your flight is delayed or cancelled.

I was in Edinburgh in February 2018, when a heavy snow storm closed both Edinburgh and Glasgow airports for 48 hours. Lothian Buses, Trams and ScotRail also suspended all operations, as Edinburgh shut down for two days. Definitely “an extraordinary circumstance”.

However, British Airways subsequently refunded over £150 without quibble, for an extra night’s hotel stay and additional meals, as there were no flights out of Edinburgh Airport, even assuming I could somehow get there.

On this occasion, I could not claim an additional €250 compensation for the delay, as that was beyond BA’s control. I should add that BA have willingly paid any compensation due on other occasions, when technical or operational problems within their control have caused delays. I’m not sure why they get such a bad rating.

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Thomas Holloway says:
19 February 2020

Hi Em,

You are quite right to draw this distinction. Article 7 of EC 261/2004 gives a passenger the right to claim compensation of a fixed amount for a delay or cancellation, depending on the circumstances.

However, Article 8 and Article 9 would apply regardless of the reason for the delay or cancellation. These two articles are the ‘Right to reimbursement or re-routing’ and the ‘Right to care’. Article 9 states that passengers need to be given hotel accommodation free of charge where this becomes necessary.

Any out of pocket expenses that are outside of the scope of Article 8 and 9 would fall within the remit of the Montreal Convention 1999, which also gives airlines this ‘extraordinary circumstance defence’.

This information is provided by Which? Legal. To join call 01174 054 854 or visit Which? Legal to find out more.

Thomas Holloway
Legal Adviser

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Jim Willingale says:
20 February 2020

Hi Fevzi,
I had my flight with Swiss from London city airport to Geneva cancelled 2 hours before take off last January.
No specific reason was given but we were told we had to go to Heathrow to catch another flight.
After spending nearly 2 hours getting to Heathrow and checking in we were told this flight had also been cancelled and we would be have to be rebooked on the later flight.
This flight was delayed for over an hour and we eventually arrived in Geneva at 23.30 over 10 hours later than we were due to land.
Swiss has refused to pay me any compensation or refund the cost of the taxi to my resort as i missed the last transfer claiming bad weather yet none of my friends who flew out with easyjet had their flights cancelled and only had an hours delay.
It has been over a year now trying to claim and i have now had to use a specialist legal firm to take on my claim.
I will never fly Swiss again

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