UPDATED 5 January 2021
This blog looks at some of the fiddlier details of getting compensation for flight delays. Since the UK left the EU the compensation rules have been written into UK law. They are explained in this new blog.
All the European court judgements mentioned here still apply as they were all retained in UK law when we left the EU. Any decisions made by European courts from 1 January 2021 will not apply in the UK.
What is extraordinary?
The European Regulation EC 261/2004, which makes the compensation rules, gives airlines a get out clause for what are called ‘extraordinary circumstances’. In other words if the delay is absolutely not the airline's fault then compensation is not due.
A dispute is brewing about delays caused by strike action. In 2018 the European Court of Justice ruled that a wildcat strike by airline staff – one that was not properly balloted or announced – was not an extraordinary circumstance after the airline had made a surprise announcement about restructuring. So compensation was due for the delays it caused. The Civil Aviation Authority has now said that strikes are covered by the compensation rules. In particular the strike by Ryanair crews in July 2018 is covered. Ryanair, BA, and Air France disagree. The dispute may end up in court. Strikes by workers outside the airline such as air traffic control or baggage handlers are not covered by the compensation rules but strikes by workers within the airline are.
Airlines can no longer use technical issues including mechanical failure as an excuse for not paying compensation. Many airlines have been calling technical issues with their aeroplanes extraordinary circumstances and refusing to pay compensation for the delays they cause.
But in June 2014 in a clear and unanimous judgment the Court of Appeal decided in a case against budget airline Jet2 that technical issues were part and parcel of running an airline and that the delays they caused could in no sense be ‘extraordinary’.
Jet2 tried to get the Supreme Court to look at that decision. But it refused to do so. The judgement releases tens of thousands of claims against many different airlines which have been held pending the court case. And any fresh claims for delay compensation because of technical issues such as mechanical failure should be successful. One law firm estimates more than two million passengers a year are delayed due to technical issues.
Some airlines tried to claim that unexpected or hidden technical defects were extraordinary circumstances. But in its landmark case in September 2015, van der Lans v KLM, the European Court of Justice ruled that such unforeseen defects could only be allowed as exceptional if they were, for example, a defect the manufacturer or a regulatory body discovered and announced. Anything else was just a normal part of running a complex system like an airline.
Another important decision by the Court of Appeal was in a case against Thomson Airways. It ruled that cases for compensation for delay could go back six years rather than two. Thomson had been refusing claims which were more than two years old on the grounds that the Montreal Convention only allowed claims for that period. But the Court of Appeal decided unanimously that local law prevails so claims can go back for six years in England and Wales. The six year limit applies in Northern Ireland but it is only five years in Scotland. See section Jurisdiction below.Thomson also tried to get the Supreme Court to revisit that decision. And again the Court refused saying the airline had no arguable case. So all airlines must now allow compensation claims for delays that occurred up to six years ago.
A further case Goel & Trivedi v Ryanair was tried in Manchester in August 2015. Ryanair claims that a provision in its own terms and conditions limits claims to two years which overrides the EU Directive. Ryanair lost the case but is appealing. It is possible that Ryanair and other airlines may try to delay claims for delays between two and six years ago until this case is finally settled. However, in a statement in September 2015 Ryanair said it did allow claims up to six year, though there is a lot of evidence that it does not.
The EU Directive on compensation applies to cancellation. But the courts have interpreted the law so a delay of at least three hours is considered to be the same as a cancellation and give rights to compensation.
The delay must be at least three hours and that is measured at the arrival airport. So a flight that leaves more than three hours late but makes up the time and arrives 2h59m late would not be covered. The arrival time was recently defined by the European Court of Justice as the moment when at least one of the aircraft doors is opened at the arrival airport.
Compensation applies to the whole journey even if the flight involves a change of aircraft at an airport outside the EU as long as if it was booked as one journey and departs from the EU. This was decided by the European Court of Justice on 31 May 2018
Compensation for cancellation is more complex but similar. If your flight has been cancelled within seven days before the original flight time - for example once you are at the airport - compensation will almost always be paid. If you are not offered an alternative flight it will be paid at similar rates to those above. If you are offered an alternative flight but it arrives two hours later - or departs one hour earlier earlier - than the original flight then similar compensation will be paid. The rules are complex but always claim if a flight is cancelled. Compensation for flights cancelled by the airline with more notice than seven days are different.
These rights are separate to any money or vouchers for a hotel, travel, or food paid by the airline. It has to make those payments as well even where there are extraordinary circumstances which prevent compensation being paid.
Airlines can get out of paying if the delay or cancellation was due to 'extraordinary circumstances'. There is no definition in the law but that can include industrial action outside the airline's own personnel, extreme weather, war, terrorism, sabotage, political or civil unrest, hidden manufacturing defects, and bird strikes. But it can no longer include technical issues such as mechanical defects even if they were unforeseeable. Nor can it include computer system failures as large companies should always be available. In rare circumstances computer failure due to a major hacking attack may be argued to be 'extraordinary'. It probably does not include strikes by the airline's own staff, though that is subject to dispute.
Although the EU directive applies throughout the 28 member states of the EU, the Supreme Court ruling only binds courts in England and Wales. Lawyers say it would be 'persuasive' in Scotland and Northern Ireland.
Enforcing your rights
In England and Wales you can use the online service via the Government website.
The court cases to cite are:
- For strikes Helga Krüsemann and Others v TUIfly GmbH 17 April 2018
- For connecting flights Claudia Wegener v Royal Air Maroc SA 31 May 2018
- For time limits, Dawson v Thomson Airways  EWCA Civ 845.
- For technical issues, Jet2.com v Ronald Huzar  EWCA Civ 791.
- and the latest case 17 September 2015 on technical issue van der Lans v KLM C-257/14
- The Supreme Court refusal to hear the further appeals.
- The European Court of Justice on when a plane arrives.
- The Liverpool case Allen v Jet2.com refusing leave to delay claims.
- Six year delays Goel & Trivedi v Ryanair
Don't let attempts to circumvent the court rulings put you off. The more difficulties airlines put in the way the fewer people will have the determination to pursue the case and get compensation. So make sure you pursue your claim and go to court if need be.
If an airline offers to pay the compensation in vouchers instead of money you are entitled to refuse and demand money.
The CAA has useful information on its website about flight delays and cancellations and makes it clear that strikes among the airline's staff are not an extraordinary circumstance.
If you are delayed the airline is obliged to explain your rights at the time of the delay. In the past many have not and on 21 March 2015 the Civil Aviation Authority took action against Are Lingus and Wizz Air to force them to obey this part of the Directive.
Write to the airline to make the claim. State that you are claiming for delay or cancellation under Regulation EC 261/2004 which is now part of UK law as amended. Don’t worry if you no longer have boarding passes or ticket details. As long as you can identify which flight you were on the airline will have your details on its manifest. If any airline refuses a claim you may have to go to court to enforce your rights. You can do that in a court in the country where (a) the flight landed or (b) the flight started within the EU or (c) the airline is based.
In Scotland claims have to be made through the Sheriff Court - click here to learn more.
In Northern Ireland use www.nidirect.gov.uk
Expect some airlines to be difficult and try to put you off or delay matters. If the airline sends you a document headed Draft list of extraordinary circumstances following the National Enforcement Bodies (NEB) meeting on 12 April 2013 write back to say that list has no legal status, has been overtaken in England and Wales by the Appeal Court and Supreme Court rulings, and that you are relying on the law as set out in Regulation EC 261/2004 as amended in UK law.
Ryanair has refused to pay claims where the flight originated in Edinburgh as it is outside the jurisdiction of the Supreme Court. Ryanair also resists claims in some other circumstances. On 18 September 2015 the Civil Aviation Authority began enforcement action against Ryanair.
A new online claiming tool has been launched by Resolver. It makes no charge for its service. Never use a claim management company. It will take 40% of your compensation and may or may not be good at the job.
The consumer organisation Which? also has a useful guide to claiming compensation yourself.
The consumer organisation Which? also has a useful guide to claiming compensation yourself.
You can get some advice free from the Civil Aviation Authority at www.caa.co.uk. If an airline has refused your claim the CAA offers an arbitration service. Its decision is not binding on the airline - though they usually follow it - and there have been long delays in the past as the CAA had inadequate staff numbers to handle the volume of cases.
If you feel you need professional help you can use the lawyer Bott & Co which specialises in compensation for flight delays. It has an online checker to see if you have a claim or not. If it takes a case then it charges 25% plus VAT (so 30%) of any compensation obtained plus a £25 administration fee (including VAT) per passenger. Altogether that will be more than a third of your compensation. There is no charge if you lose.
Originally made 25 July 2018