High court case on charges for maintenance services for aircraft

Corporate Oil and Gas Ltd v Marshall Aviation Services Ltd [2015] EWHC 3447 (Comm)

High Court (QBD)
Mr Justice Knowles CBE
27 November 2015

The Defendant provided aircraft maintenance and repair services. The Claimant was the owner of a business jet aircraft of the BAe125/800A model (“the Aircraft”). When the Claimant purchased the Aircraft it was already about 20 years old. On 4 May 2009, the Claimant delivered the Aircraft to the Defendant in order that work could be done to it.

This dispute concerned whether the Defendant had met its responsibilities while the Aircraft was with it, and whether the Claimant owed substantial further sums for work done. Before the proceedings, the Defendant asserted a lien to justify retaining possession of the Aircraft whilst (on the Defendant’s case) the Claimant did not pay what was due. The Claimant has now said it does not want the Aircraft back.

On the facts of the case, the Court held that there was no error in the Defendant’s assertion of a lien until its charges were agreed and paid. The Claimant had no claim in damages for conversion.

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

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.

Takeover bids and European competition law: Ryanair Holdings v The Competition & Markets Authority

Ryanair Holdings Plc v The Competition And Markets Authority & Anor [2015] EWCA Civ 83
Court of Appeal
Lord Justice Laws, Lord Justice Patten, Lord Justice Floyd
12 February 2015

Takeover bids and European competition law. Ryanair appealed to the Court of Appeal against a decision of the Competition Appeal Tribunal (view here), who rejected previous challenges to the findings of the Competition Commission (CC). Ryanair’s three grounds of appeal were:

(1) it was procedurally unfair for the CC to have refused to disclose to Ryanair (or its external lawyers) the material allegations and evidence relied upon by the CC in reaching the conclusion that Ryanair might affect Aer Lingus’s ability to participate in a combination with another airline. Particular weight was attached to the evidence of other airlines but their identities and the underlying evidence were withheld from Ryanair despite its requests for their disclosure. It was therefore denied a fair opportunity to respond;

(2) the decision to require divestiture of all but 5% of the minority stake involved a breach of the duty of sincere co-operation under Article 4(3) of the Treaty on European Union (“TEU”) because of a material risk of conflict between the order and a future decision of the European Commission (following the appeal to the General Court) that Ryanair should be permitted to bid for 100% of Aer Lingus; and

(3) The divestiture remedy was disproportionate and was imposed by the CC on the basis of a misdirection as to the degree of risk of an SLC occurring that has to be found before a remedy can be imposed and which dictates the type of remedy required.

Appeal dismissed.

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

Judicial review of UK Government’s arrangements for overseeing & regulating the use of a military airport

Oxford Aviation Services & Anor, R (On the Application Of) v Secretary of State for Defence Civil Aviation Authority & Anor [2015] EWHC 24 (Admin)
High Court, Mr Justice Popplewell, 23 January 2015

Judicial review of the Government’s arrangements for overseeing and regulating the use of Northolt Airport (“RAF Northolt”) by civil aircraft in order to determine whether they are lawful, particuarly in respect of safety. The case was not concerned with whether RAF Northolt met appropriate safety standards for such aircraft.

Note: Military airports fall within the responsibility of the Secretary of State for Defence through the Military Aviation Authority, an autonomous body created by Charter, administered within the Ministry of Defence.

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

UK Court of Appeal Judgment regarding negligent misrepresentation in the sale of an aircraft

Foster & Anor v Action Aviation Ltd & Ors [2014] EWCA Civ 1368
Court of Appeal
Lord Justice Longmore, Lady Justice Gloster, Lord Justice Underhill
23 October 2014

Purchase of aircraft – negligent misrepresentation – fraudulent misrepresentation – whether the aircraft had ever been in an accident – unreportable incidents – difference between purchase price and sale price – beneficial ownership – appeal against trial judge’s finding of fact

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

UK Court of Appeal case on limitation periods and the Montreal Convention

Dawson v Thomson Airways Ltd [2014] EWCA Civ 845

Court of Appeal
Lord Justice Moore-Bick, Lord Justice, Kitchin, Lord Justice Fulford
19 June 2014

Delay – compensation – limitation period – Montreal Convention – Regulation 261/2004 – Limitaton Act 1980

The claim arose out of a delay to a flight from Gatwick to the Dominican Republic in December 2006. Departure was delayed by crew shortages caused by sickness and the flight eventually arrived at its destination over six hours late. Mr. Dawson sought to recover from the airline the amount of €600 per person which under EC Regulation No. 261/2004 is payable as compensation for a flight of that length. Mr. Dawson was awarded £1,488.73 by the Cambridge County Court.

Mr. Dawson began proceedings in December 2012, just before the six year limitation period under section 9 of the Limitation Act 1980 expired. The airline accepted that it would have been liable to make the payment if he had brought proceedings in time, but argued that the claim was out of time and had been discharged by virtue of the two year limitation period contained in article 35 of the Montreal Convention, which governs the liability of carriers by air.

The airline accepted that in the light of the decision in Moré national law governs the question of limitation, but it contended that the application of English law leads one straight back into the Convention with its two year limitation period. Although the English courts are bound to accept the European Court’s decision that there is a right to compensation for delay in cases of this kind, they are not bound to accept and apply the reasoning by which it reached that conclusion and as a matter of English law must follow and apply the decision in Sidhu. Mr. Dawson, on the other hand, contended that the court must follow and apply the decisions of the European Court. The claim falls outside the Montreal Convention and as a matter of domestic law the six year period prescribed by section 9 of the Limitation Act 1980 applies.

The Court of Appeal held that it was bound to follow and apply the decisions of the European Court in relation to the nature of the claim for compensation under article 7 and its compatibility with the Montreal Convention, which included the Court’s ruling that the obligation in question lies outside the scope of the Convention. The European Court had ruled on the nature of the obligations created by Regulation 261 and its decisions had to be taken into account when deciding whether the claim fell within the scope of the Convention.

The airline’s appeal was dismissed.

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

Ryanair’s attempt to recover Air Passenger Duty from HMRC

Ryanair Ltd v HM Revenue and Customs [2014] EWCA Civ 410
Court of Appeal
The Master of the Rolls, Lord Justice Patten, Lord Justice Pitchford
4 April 2014

Ryanair made a claim to recover Air Passenger Duty (APD) totalling £10,230,613 which it alleged was overpaid between 16 September 2007 and 31 March 2011. The claim was rejected by HMRC and Ryanair appealed against the refusal under s.16 Finance Act (FA) 1994. At a subsequent hearing before the First-tier Tribunal, the FTT transferred to the Upper Tribunal (Tax and Chancery Chamber) the issues of the proper construction of the relevant provisions of FA 1994 and the orders made under it and whether, on the proper construction of those provisions, Ryanair was entitled to the benefit of an exemption for connected flights. Ryanair also issued proceedings in the Administrative Court for judicial review of HMRC’s treatment of it in respect of the connected flights exemption which it alleged was substantially unfair and inconsistent in the way that it has allowed some other airlines to enjoy the benefit of the exemption even though they do not issue conjunction tickets as defined but has refused to extend the concession to Ryanair.

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

Admissibility of Air Accident Investigation Branch Report in Fatal Accident Case

 Hoyle v Rogers & Anor [2014] EWCA Civ 257
Court of Appeal
Lady Justice Arden, Lord Justice Treacy, Lord Justice Christopher Clarke
13 March 2014

On appeal from the High Court decision of Mr Justice Leggatt: 2013 EWHC 1409 (QB)

On 15 May 2011 Orlando Rogers was a passenger in a vintage Tiger Moth propeller bi-plane manufactured in 1940 of which the appellant, Scott Hoyle, was the pilot. In the course of the flight the aircraft crashed to the ground. Mr Rogers was killed. Mr Hoyle was seriously injured but survived. The claimants, respondents to this appeal, who are Mr Rogers’ mother and sister, bring this action as executors on behalf of his estate and as dependants, claiming damages for his death as a result of the accident, which they attribute to Mr Hoyle’s negligence.

The Air Accident Investigation Branch (“AAIB”) investigated the accident and on 14 June 2012 produced a report (“the Report”). The issue in this appeal was whether the judge was right to hold that the Report was admissible in evidence and to decline to exclude it as a matter of discretion.

As to whether the Report was admissible, the judge held that “it is not apparent to me that any part of the Report should be regarded as simply expressing an opinion on matters of fact (as opposed to recording evidence) in relation to which the expertise of the AAIB has no relevance. But even if any part of the Report was (or proves on close analysis hereafter) to have that character, the correct approach is as outlined by the judge.” The Report is admissible for its record of factual evidence (of whatever degree of hearsay) and its expert opinion.

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