‘Huzar v Jet2.com’ – a potential game changer on flight delay compensation

‘Huzar v Jet2.com’ is the rather unprepossessing name for a legal case which wound its way through the Court of Appeal earlier this month.  The result may have a significant impact on the way that compensation is handled for UK airline delays.

Most Head for Points readers will be aware of EC261, the European Union legislation which gives you certain guaranteed rights if your flight is delayed or if you are downgraded or offloaded.  It applies to any flight that begins or ends in the European Union.

When it comes to flight delay, the rules give airlines a golden ticket to avoid paying compensation.  If the delay is down to “extraordinary circumstances” then no compensation needs to be paid.

Airlines have spent the last few years trying to define “extraordinary circumstances” as loosely as possible.  In particular – and this was the subject of the Huzar case – whether technical problems are included.

Jet2

Poor Mr Huzar had a bad time of it, without doubt.  Jet2 left him stranded in Malaga for 27 hours on the way to Manchester when a wiring defect was found in the aircraft.

He started off by claiming £350 compensation from Stockport County Court.  Jet2 presumably chose not to settle with him in a decision which may prove to be very expensive.  When he lost, he appealed.

As The Law Society Gazette explains here, Jet2 lost the appeal:

Following a hearing last month, Lord Justice Elias said that for an event to be ‘out of the ordinary’ it must ‘stem from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned’.

If the cause of the technical problem, he added, was one ‘inherent in the normal exercise of the activity of the air carrier concerned’ then it necessarily followed that it is also within the control of the carrier and thus not extraordinary.

This judgement is automatically binding on all County Courts in England and Wales.  It will not be possible for an airline to claim that technical problems are ‘extraordinary circumstances’ and thus immune from compensation.

It is important to note that there is no easy way back here.  The only option left to Jet2 is an appeal to the Supreme Court.  The usual way to do this is to ask the Court of Appeal to allow it.  Given that all three Court of Appeal judges decided against Jet2, this would appear difficult.  The alternative would be for Jet2 to petition the Supreme Court directly but there is no guarantee that the case would be accepted.

For the lawyers or legal students amongst us, the full decision can be read here.

Playing redspottedhanky Fantasy Football Cup? Time to make your transfers
Last chance for 3,600 Avios with a £60 Tesco grocery order
About Head for Points

We help business and leisure travellers maximise their Avios, frequent flyer miles and hotel loyalty points. Visit every day for three new articles or sign up for our FREE emails via this page or the box to your right.

Comments

  1. Does anyone know if any flight delay compensation is payable if it was a redemption booking? And what if it was made on a 2 4 1 voucher? Not that I need to claim. I am just curious!

  2. squills says:

    I’d quite like to get some compo for the volcanic ash delays – which left me stranded in 30C of glorious sunshine out here at Squills Towers for a week or so of term time, on my own with the 3 chimps ;-).

    Terrible, it was.

    OK, I know it would not ordinarily count for compo since ‘act of God’ etc.

    But as Mr O’Leary nicely demonstrated when he took an empty plane through the middle of the ‘volcanic plumes’, it was all proven to be a jobsworth faff in the end with no significant risk to flying in most of Europe.

    I’m not having some useless bureaucrat telling me what to do, so on that basis I want my compo! 😉

  3. richie says:

    I had a 25h delay outbound to Cuba in september 3 years ago – tomas cook said it was extraordinary circumstances due to mechanical problems. Does this now mean i can re apply and should get compensation?

    • No, only incidents from the date of the judgment are covered.

      • LHR Tim says:

        So if your flight was delayed due to ‘technical problems on the 10th of June, it was ‘extraordinary circumstances’ but if you took a flight on the 12th of June and the EXACT same delay happened on the return, it would not be ‘extraordinary circumstances’?

        • Correct

          • callum says:

            I also don’t understand how that could possibly be true. While the judgement may not be binding on the county courts from before that date, if the court decided that extraordinary circumstances cannot be technical issues then regardless of a technicality over dates, I can’t see county courts denying claims because they relate to before this judgement.

            Either the circumstances were extraordinary or not. The appeals court didn’t define a new law, it clarified what the existing law was. It’s judgement therefore should extend to the date the law was enacted (whether it’s technically binding that far back or not).

          • Hi Raffles – that’s not right. The judgment is binding from the date of the decision but the common law rule of precedent is that cases say what the law has always been. The law doesn’t change per we as a result of the judgment – it is merely clarified. If your case has been decided before the new judgment then you cannot have it re-decided (save that you can appeal if you are in time) but if you haven’t yet brought a claim and now do so, it is decided on the basis of case law existing at the date of judgment. On the other hand if the wording of the regulation changed then the date of travel would be decisive, as to whether the old wording or new wording applied. Therein lies the difference between case law and statute!

          • I am afraid that is not correct Raffles. Here is the CAA’s guidance on this:
            • New claims should be assessed by airlines in the light of the judgment;
            • Claims previously put to an airline can be reconsidered in the light of the judgment, if the passenger wishes, unless the passenger agreed a settlement with the airline;
            • Claims that have already been decided by a court cannot be taken back to court unless they are within the time limit for an appeal.

            There was a separate case recently which clarified that you can claim up to 6 years back, so richie should be fine to put in the claim again.

          • sorry Raffles but I don’t think it is.

      • Lerwick22 says:

        Why should that be the case? It was also not extraordinary circumstances before the Huzar case. See Wallenstein Hermann and Sturgeon rulings at the European Court of Justice. The problem here could be, that you need to claim within 3 years.

  4. Raffles, it looks to me like it was Jet2 who appealed, not the claimant? (Claimant won at court, then appeal was dismissed). Your article suggests that Mr Huzar appealed… Interesting though because if Jet2 had just taken a hit on the compensation they wouldn’t have set such a precedent for the future…

    • Law Gazette piece says Huzar appealed?

    • Lady London says:

      That’s why intelligent airlines stay out of court. They don’t to set a precedent. e.g. I am sure BA stayed out of court in the US on the “fuel surcharges” case as long as they could, because of the potential impact of a decision against them becoming binding across the board. And of course, no other airline would than an airline that went to court if there was any significant chance of a negative decision becoming enforced on them too.

      So right now I’ll bet the other airlines love Jet2! or perhaps they are just thinking how lucky they are to have got away with it so long.

      It seems the pips have to be made to squeak sometimes to ensure that law actually provides justice.

  5. Hemmingwaygin says:

    I don’t see this as good news, whilst Mr Huzar’s experience was indeed incredibly difficult won’t this lead to a flood of claims for any delays and ultimately the price of flight tickets increasing as Carriers compensate to make up for lost profits?

    • I would not be surprised if we end up seeing Ryanair imposing another added charge to their flights (a la ash cloud) to cover their exposure.

      As always with these things, it’s certainty rather than fairness that is needed. As long as everybody knows exactly what is and what is not “extraordinary”, people and airlines can insure themselves accordingly.

      • callum says:

        They added an EU261 surcharge years ago.

        • mrtibbs1999 says:

          I have sued Ryanair over a delay and their lawyer is a very, very smart chap who is very good at getting cases tossed or withdrawn. Ryanair have already anticipated the costs, added a fee and have a great process in place to frustrate claims to the point of withdrawal. Yes they legally have to pay, but boy do they make you work for it. This ruling won’t change that, there arguments were always fatuous, although presented well, with conviction and in a manner that convinces claimants to drop the matter. Incidentally, I got paid, but only after 18 months, a court claim and a lot of messing about. Dealing with their lawyer was without a doubt one of the best free lessons I have ever been given.

    • Martin says:

      Not really but it might, in reality the percentage of delays that would be eligible for compensation would be small therefore the overall compensation claimed would be tiny as a percentage of profit to the business. Bottom line to airlines is make sure your planes can fly and avoid technical failures.

  6. There is a wealth of information about this over on Moneysavingexpert

  7. Gabbai says:

    The purpose of the EU regulations is not to penalize the airlines but to compensate travellers when they are unreasonably delayed. Of course other passengers are paying for this in the same way as other shoppers are paying the price for shoplifters. If an airline has a bad record of delays, the record will be taken into account by prospective passengers, also as its fares must reflect this. Delay costs money.

    I can fully understand why jet2 fought this, as an undiscoverable fault, as was the case here and was agreed to as such by both parties, seems to very well fit in an ordinary person’s idea of an “extraordinary circumstance”.

    However when you delay a passenger by 27 hours you have to expect him to get very angry. Hipmunk shows dozens of flight connections for Wednesday 22 October 2014 from Malaga to Manchester all of which would have got Mr Huzar home with a much shorter delay. [26/10/2014 was a Wednesday which is why I looked up the closest date on the same day of the week].

    I was recently on a BA Club Europe flight out of London where the lady seated behind me was awarded 10,000 Avios simply because the choice of meal she wanted was not available. Carriers like jet2 have a great deal to learn about customer service and satisfaction. Keeping the customer happy is what keeps him coming back and what keeps the lawyers at bay, not treating him like a chess piece that can be moved around at will or just left in a corner and ignored.

    It would not surprise me in the least if leave is given to appeal to the Supreme Court as this is certainly an issue of considerable public concern and import as well as commercially potentially very damaging. In the meantime the Judgment is not a charter for all. I am sure some of the more stubborn airlines will continue to have their engineers and lawyers in tandem claim that that in another specific case the cause of the technical problem was not one ‘inherent in the normal exercise of the activity of the air carrier’ and therefore not within the control of the carrier, and thus extraordinary. Don’t ask me what, I look at the bottom line not “principles” like a lawyer.

  8. Erico1875 says:

    This compo is getting out of hand. Things break down.
    If an airline can show it has operated the aircraft within manufacturers spec, carried out all routine servicing and repairs as necessary to manufacturers spec, within the correct timeframe and when a delay occurs out with their control, provided they provide on the spot duty of care to effected passengers, ie food, drinks, accom as reqd, should they really have to give hundreds of pounds compo for what might be a £30 flight ?

    • Yes they absolutely should. My time is not free and neither is yours!

      Neither the airline not the passenger wants the delay but the consequence of the delay is always acost of some sort.

      I’ve had to bin rail tickets due to delayed flights (only a few hours delay) and with a 27 hour delay I’d almost certainly miss work time which has a real cost to both my business and myself.

      As has been said before, define extraordinary delay and then insure against other eventualities.

      The problem with a flight delay (as opposed to a car break down) is that you have very limited options outside of your airline and it often results in a huge time loss when things go wrong.

    • Martin says:

      Of course they should, if i was delayed on a long haul flight after paying hundreds of pounds because the flight times met my requirements why should I expect to be out of pocket or inconvenienced for something that was not my fault.

      Let me ask this question, if a taxi on a hire got a puncture would he expect the passenger to wait in his car whilst it got repaired and then expect to get the full fare?

      • Let me ask you a question back using the same hypothetical taxi scenario.

        If a taxi broke down and a replacement vehicle could not be sourced in the short term, would you expect the taxi firm to compensate the passenger for more than the cost of the original fare due to the delay?

        • Compensation is only paid on delays over a certain length of time. I wouldn’t expect to not be able to get a replacement taxi for several hours. Whereas, if I was flying somewhere, it would be reasonable to expect that a delay would have a major knock on effect to the rest of my travel plans.

          Most people who take taxis to, for example, the airport, would factor in sufficient time for arrival and check in and it would be a poor taxi firm that couldn’t get a replacement car in that time, even if you ended up cutting it fine at check in.

          Many years ago, I booked a car to take me to the station to catch a plane to the airport to go on holiday. It was a 10 minute drive to the station and I booked the car to allow 30 minutes at the station to pick up tickets and get some breakfast. After ringing several times, the car arrived about 12 minutes before the train was due to depart. I told both the company and the driver that if I missed the train, I expected them to drive me to the airport for no extra cost. And if I missed the plane, they would have to pay for my missed holiday. I think we ran every traffic light in the centre of town and I got on the train – with no ticket – just as they closed the doors, which was lucky for them.

          • I agree that compo is only for delays over a certain time but in relative terms, a small taxi delay is comparable to a longer delay for a long-haul flight. People don’t normally take 10 hour taxi rides.

        • Gabbai says:

          TimS – your hypothetical taxi question: yes I would certainly expect to be compensated if the delay was foreseeable. If the length of the delay was unreasonable, I may certainly expect to receive more for compensation that the original agreed fare. When I hire a taxi I expect it to be in perfect mechanical order, and that includes having a spare tyre to deal with an easily foreseeable puncture. The price includes an element to cover my perfectly legitimate expectation to arrive without delay caused by the failure of the taxi driver.

          The EU and the Courts have decided how long constitutes ‘delay’ on an air flight. What was left more open was what allows the airline to wriggle out. I must admit that I find it a little difficult to see how in this case a fault that one could not check in advance for, cannot be an “extraordinary circumstance”.

          • I too would expect a taxi to carry a spare tyre, however I wouldn’t expect the taxi to carry other spare parts to repair mechanical faults, just as I wouldn’t expect a plane to.

            Mechanical faults that render aircraft AOG are more often than not entirely unforseeable, despite what some people (and the courts) may think. And spares are rarely in the same place as the aircraft as, to have enopugh to cover every eventuality at every station would be logisitcally & financially prohibitive.

            (As an aside, not all AOGs are logical. I know of one aircraft very recently that was AOG because one of the buckles on a flightdeck seatbelt broke! Thankfully they were at an airport where there WAS a replacement unit in stores on-site).

          • Gabbai says:

            No, I would also not expect the taxi to carry other spare parts to repair mechanical faults but I would expect it to put me in another taxi at its expense to help me get to my destination as quickly as possible. There are dozens of flight connections from Malaga to Manchester daily and dozens more to London. jet2 simply sat back and let its passengers suffer. BA, or any other serious airline, would have had them back in the UK much faster. Airlines that don’t care about their passengers deserve to pay the price.

        • Martin says:

          No but I wouldn’t expect to pay the taxi a penny for my trouble, airlines already have your fare.

    • Airline are like banks. They take the p*ss. The reason these rules came in is that airlines were cancelling flights at short notice when they didn’t have enough passengers on them to make a profit, as long as they could squeeze the passengers onto future flights. They would then blame some mysterious issue for the cancellation. This is why the rules came in.

      As with banking, you now have over-regulation but the airlines (and banks) have brought it on themselves.

      • Deltawonwon says:

        Interesting comments. As an airline worker I can tell you it’s a very complex organisation with multiple “moving parts”, and that’s before you get to the passengers. What I can tell you is that most airlines don’t “over resource ” just in case. These are very tight margin businesses – and yes locality is important…to a point. And yes in some circumstances the customers aren’t always right.

      • idrive says:

        Raffles, last year Ryanair cancelled my flight on 29 Dec offering an alternative flight the morning of the previous day or refund. this made me a loss of 50k miles + taxes as i had to rebook on the last ticket (double miles award) on another airline as the cash price was approaching £1000. They did not provide an explanation, my idea is that the flights were empty so they reorganized the schedules as in fact, there were no flights at all for the next 2-3 days. do you think there is space for a claim there?i asked Amex insurance to cover that loss but there was no point. Also, for delays Amex insurance denied claims for technical reasons…will insurance claim from now on benefit of this new case outcome too?

  9. “It applies to any flight that begins or ends in the European Union” is a slight oversimplification.

    It applies to any passenger:
     departing from an EU member state, or
     travelling to an EU member state on an airline based in an EU member state.

    SAA gleefully quotes this to pax as it offloads them from its flights to Europe – and tells them to go to hell if they expect a hotel room or, god forbid, compensation.

  10. Richie says:

    So back to my initial comment.

    I was on a flight with Thomas Cook 2 years ago. We set off from gatwick 3h late due to a fuel pump issue. Then we had a 10h trip over the Atlantic and landed back at our starting destination. -gatwick.

    We were put up in the hilton, and given a £10 voucher for food. The following day Breakfast was served in the morning and we flew out to our intended destination about lunchtime. We were given 1 round off free drinks from the airline. We arrived at our destination 26h late. So we lost one day of our all inclusive holiday.

    On my return I emailed Thomas Cook with a complaint and expected to compensated for additional food spend, loss of 1 day all inclusive package, additional drinks spend onboard, and flight compensation.

    After a nine month battle of sending emails, back and forward I received absolutely f@#k all from TC. It is for this reason I will never fly Thomas Cook again.
    The annoying thing is that our original flight was closer to Cuba when we turned round. The decision to return to gatwick was one made purely as the cheapest alternative. (Even at the expense of 320 paying customers)

    So is this something I should revisit and try agin with?

    Thanks

    • Deltawonwon says:

      What about your travel insurance? Did you get anything from them?

      • Richie says:

        When I looked at it it wasn’t worth the hassle. After excesses I would have been up about £40, I have since bought much better policy’s.
        The thing I’m most interest in is the eu flight delay 261 compensation.

    • Deltawonwon says:

      I doubt that the turn around was made purely on those grounds. The pilots (if they were in touch with their Ops Control – I doubt it as you were probably in Oceanic airspace with the only form of communication being HF radio) would have sought advise but ultimately the Captain would have taken the safest course of action. These are not simple decisions and depend on multiple factors (I take it it was an A330 aircraft? In which case TCX would operate it most probably under what’s called ETOPS rules, which following the failure probably prescribe turning around to the most SUITABLE airport – suitable is probably defined and cost doesn’t factor one jot). It’s cr@p when these things happen, but fortunately aviation is so reliable these days that these tend to be rare events.

    • Gabbai says:

      Go to one of the web sites that deal in delay claims and enter the flight details to see if it looks as though you might have a good claim. Try: http://www.bottonline.co.uk/flight-delay-compensation [Disclaimer: I have no connection to Bott & Co]

  11. Richie says:

    The turnround was due to unavailability of the part need ed in Cuba, which would of meant there aircraft was stuck there a day longer then if it returns to gatwick. This was confirmed by the pilot.

    Does this seen like a case I should revisit now?

    • Deltawonwon says:

      I think it depends on the exact wording the Airline used. But, from what you’ve said it seems that you might have a case. Good luck!

      • Richie says:

        Should I just send another letter asking for compensation under 261″ and explain I want my case reviewed because of a similar decision in the jet2 case?

        • mrtibbs1999 says:

          Yes, you are entitled to the Full EU261 compensation at the applicable rate, if what you say happened did happen. Write to the Airline, demanding the money and referencing the recent judgment. Give them 28 days to respond and threaten to take them to court if they do not pay within the 28 days. Following that file a claim on MCOL and wait and enjoy your money.
          You must be sure that the delay was due to technical reasons and not weather, strikes, ash clouds or any act of god or any other ridiculous uncontrollable reason.

    • Given the high price of LGW apron parking costs (especially in summer), fuel costs for the extra flying back to LGW and than back out to Cuba, I doubt the cost “saving” was much different, whatever the pilot may have told you. In my experience, commercial pilots (and Ops controllers for that matter) have little or no idea of costs. All they care about is AOG downtime and potential discretion hours.

      More likely the flight crew didn’t want to be stuck downroute!

      • Richie says:

        I think the story of no part available in Cuba was probably correct. Most of Cuban planes are Russian.

        • Yes it will be correct that there was no part in Cuba but one could have been brought out as cargo on another flight the next day for far lower cost than the fuel cost of positioning back to LGW then parking up there for the night. Cuba’s apron costs are a fraction of LGW’s. LGW charges for ALL aircraft movements while Cuba doesn’t so again returning to base unnecessarily is a higher cost.

          Trust me on this, I have costed up very similar operations very recently!

  12. These airlines will do anything to get out of paying up when they are in the wrong. Do they not realise they cause people inconvenience every day? shocking

  13. Gabbai says:

    Airlines care about the bottom line. That does not just mean the financial bottom line. If there is great “free” publicity to be gained from a situation, that may be the solution. If it happens to benefit the passengers, they lucked out on the way. If on the other hand there is no PR angle, the airlines will take the cheapest way out. Only a small percentage of passengers really know their rights and only a certain percentage of them will actually fight for their rights. So unless there is great PR to be gained, the passengers can go to hell or Cuba or wherever. Most of them will anyway be happy with a lolly and a voucher for $50.