Damages for delay under the Montreal Convention and EC Regulation 261/2004

Dunbar v easyJet [2015] ScotSC 70

Sheriffdom of North Strathclyde at Paisley
Sheriff Livingston
4 November 2015

This was a claim brought by Ms Dunbar against easyJet in respect of a flight from Glasgow to Malaga on 28th July 2014. Ms Dunbar’s flight was delayed by over 6 hours invoking EC Regulation 261/2004 entitling passengers to compensation for any delay exceeding three hours unless there are both extraordinary circumstances and the delay could not have been avoided even if all reasonable measures had been taken. On the basis of the flight distance, the compensation payable was €400.

The onus was on the easyJet to show that the delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

The Sheriff held that the underlying delay was caused by extraordinary circumstances in that the aircraft in question could not leave Gatwick. This was because of an air traffic control decision which itself seems to have been predicated upon a number of factors. It is clear from Recital 15 of the Regulation referring as it does to “the impact of an air traffic management decision” that it is not for the court to look behind whether that decision was correct or not. The fact the decision is made leading to a delay or cancellation is self-evidently “extraordinary circumstances”.

However, the sheriff concluded, “while the original delay between Gatwick and Bologna was caused by extraordinary circumstances and that by the time of the Pursuer’s flight was due to depart the extraordinary circumstances continued to exist I am not satisfied that the Defender took all reasonable measures to avoid the delay meaning the limit or exclusion of liability set out in Recitals 14 and 15 is not invoked due to deemed extraordinary circumstances not existing”.

For further UK case law, see our United Kingdom – Cases page.

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