British Airways is Appealing a £440 Compensation Payout in the Supreme Court in First Major Test of Post-Brexit Air Passenger Rights

British Airways is to appeal a compensation payout totalling just £440 all the way to the Supreme Court, the highest court in the United Kingdom, in the first test of EU-style air passenger rights adopted by the British government following Brexit.

The case has actually been dragging on way before the UK left the European Union but this will be the first time that British judges get the final say on what constitutes an ‘extraordinary circumstance’ – essentially, the only way that airlines can absolve themselves of blame for a cancellation or delay and therefore avoid paying compensation.

In this case, lawyers acting on behalf of British Airways’ London City regional subsidiary known as CityFlyer initially successfully argued that when a pilot went sick while off-duty and the airline failed to find another pilot to fly the plane it constituted an ‘extraordinary circumstance’.

Compensation was sought by a married couple known as Mr and Mrs Lipton, who had booked a flight with British Airways CityFlyer from Milan to London City all the way back in January 2018.

Unfortunately, the flight was cancelled as a result of the Captain’s unexpected illness, so the couple submitted a claim under the EU’s air passenger rights legislation known as EC/261.

For a flight of this length, the legislation is meant to entitle passengers to compensation of €250 each if the delay in getting passengers to their destination stretches on for more than two and half hours.

Mr and Mrs Lipton were rebooked onto another flight the same day and arrived at London City Airport just over two and half hours later than originally scheduled. They submitted a claim but this was quickly rejected by British Airways.

Undeterred, the couple took their claim to court, but a District Judge sided with British Airways, agreeing that the pilot’s illness was, indeed, an extraordinary circumstance.

The Lipton’s then appealed the verdict to the High Court but were swiftly rebuffed by the judge, who agreed that a pilot going sick downroute really was an extraordinary circumstance.

At this point, most passengers might give up but the Lipton’s gave their bid for compensation one last chance by appealing the case to the Court of Appeals. It was here that the legal system suddenly turned on British Airways in favour of the Lipton’s.

Rather than constituting an extraordinary circumstance, the appeal judges came to the conclusion that employee sickness is a completely normal and everyday occurrence that any company has to deal with.

Whether the pilot started to feel sick outside of work didn’t have any bearing on whether the illness suddenly constituted an extraordinary circumstance and, in any case, how was anyone to know when the pilot first started feeling ill.

In other words, the pilot could have been infected with a cold or the flu or eaten a “suspect prawn sandwich” while at work. It could even be that long working hours contributed to his illness.

British Airways was, however, given leave to appeal the judgement and that’s exactly what the airline did. The Supreme Court has now agreed to hear the appeal and has set the hearing date for February 6.

One of the issues with the ‘extraordinary circumstance’ caveat is that European legislators failed to define what exactly this meant. As a result, the definition has been tussled over in national and EU courts for years.

There’s now a fair bit of case law or what constitutes an extraordinary circumstance, but this Supreme Court hearing will be an opportunity for Britain to define how its amended air passenger rights legislation interprets this important legal term.

Generally speaking, severe weather and acts of terrorism are definitely considered an ‘extraordinary circumstance’, whereas mechanical problems, whether the fault of the airline or not, aren’t.