Reply To: Is compensation due if BA reschedule a flight by 5 hours?

[JDB]

@jamie – thank you for providing BA’s response which is essentially in line with my initial answer to you but as it’s a grey area and clearly @points_worrier has a different view, I’m suggesting a possible way forward putting your case at its best. I hope @points_worrier or someone else may offer additional thoughts. I’m sorry that it will seem a bit long winded and that I may be saying stuff you already know, but the background to why your case isn’t clear cut should help you frame your case.

The existing UK261 legislation does not provide for compensation in respect of delays but the 2009 CJEU decision in Sturgeon determined (broadly, sorry for any bad paraphrasing) that because a delay over three hours was just as inconvenient as a cancellation and therefore tantamount to a cancellation, such delays should be compensated in the same way.

Thus, since that time passengers delayed over three hours are entitled to compensation in line with Article 7. The judgment doesn’t refer to schedule changes that are made in advance but Sturgeon is generally understood to refer to on the day delays you actually experience. Also, while the judgment draws parallels between cancellations and delays, it’s clear they aren’t the same – for instance you can get cancellation compensation for a flight without travelling, but to collect delay compensation you need to have travelled on the delayed flight.

Also, if your flight is cancelled, that immediately entitles you to a refund whereas if your flight is delayed by three hours you aren’t entitled to a refund if you opt not to travel; that only comes at five hours. So, they are the same and not the same! I initially advised that the position was clearer/better if a flight is brought forward and that is because there is a 2021 CJEU decision that says a flight brought forward by over one hour is the same as a cancellation and should be compensated accordingly and more generously than the provisions of Article 5.1(c). It is sort of implicit that a flight brought forward in this way happens in advance (ie a schedule change) rather than on the day but the judgment is silent on schedule changes making a later departure. There is also nothing along the lines of Article 5 with a graduated approach depending on the notice period given for cancellations that would regulate schedule changes. To be continued!