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New airline ruling protects passengers, but puts cheap flights at risk

Next year we’re going to Skegness. Steve Parsons/PA

Most passengers whose flight was delayed for a full day would complain about it. Perhaps they would write an angry letter, or vow never to use the same airline again. But Ronald Huzar didn’t stop there. After faulty wiring meant his flight to Malaga arrived 27 hours late, he took budget carrier Jet2 to court.

The airline argued the wiring problem amounted to “extraordinary circumstances”, which would have meant Huzar was ineligible for compensation. However judges have now ruled technical defects are inherent in the running of an airline and thus do not count as extraordinary. The decision could open the floodgates for further claims by millions of people whose flights were delayed.

This case has wide implications for both airlines and their passengers. When the law develops because someone cares enough to make a complaint and take it all the way to the highest court, the consequences aren’t always positive or as anticipated.

Consumer protection is great, but it comes at a cost, and sometimes it leads to absurdity. In this case, which went from Manchester crown court to the UK high court and then to appeal, Huzar’s victory over Jet2 is likely to lead to increased air fares across the industry.

Businesses pass their operating costs on to their users, particularly those businesses such as airlines who operate at minimum expense. Here the additional costs for airlines are twofold: they can expect claims related to previous delays, and they’ll also have to pay for added controls to ensure they aren’t liable for considerably more claims in future. These costs will have to be paid somehow, and it is travellers will have to pick up the bill.

The facts of the cases were not in dispute. Huzar and his family suffered a delay of 27 hours in their flight from Malaga to Manchester, a disruption caused by a wiring defect. Importantly, the technical fault was unexpected and could not have been predicted by a regular system of inspection or maintenance and, further, the failed wire was within its expected lifespan.

The court’s discussion concerned a European regulation dealing with delays and cancellations. This fairly generous legislative instrument had already been stretched beyond its literal meaning by the European Court of Justice (ECJ) before, when the court awarded compensation rights to passengers whose flights had been delayed rather than cancelled. The actual regulation said only cancellations warranted payment, but the ECJ reasoned that flights delayed more than three hours should count just the same. The decision was justified as a valid interpretation within the overall principle of the law, but some national courts have rejected it.

As a consequence, to avoid paying compensation a carrier would have to prove that there were “exceptional circumstances” for a delay and that it was unavoidable even after taking all reasonable measures. In this case, the court had to decide whether the delay was down to exceptional circumstances beyond the control of the air carrier. Could Jet2 have done anything about these dodgy wires?

I would invite the reader to decide, as objectively as possible, whether defective wiring which could not have been detected in a routine check is indeed one of those situations. Before reaching a conclusion, it should be noted that the law defines “unexpected flight safety shortcomings” as an exceptional circumstance.

In reality, the court has made its judgement, and the decision states that a technical failure is part and parcel of the everyday activity of an airline and therefore within the control of the company.

Airlines still have a getout. If the specific fault which caused their delay is external (an actual accident, for example), then the right to compensation would be frustrated. A company would be able to reject claims by merely saying “routine control didn’t report any incidents”.

Even more, one could expect a fictitious low cost airline perhaps managed by a profit-driven owner without much regard for safety to reduce the scope of these routine checks, precisely to be outside of the legal expectations. When safety is a half-hearted box ticking exercise, all faults become “exceptional” and passengers lose their rights to compensation.

This seems to be one of those cases where the judge has delivered justice in spite of the legislation and not because of it. Jet2 disagrees with the decision and has announced it will appeal to the supreme court.

But if the airline’s latest appeal is unsuccessful, and passengers do have the right to compensation when their plane arrives late, a worrying new possibility opens up. How long before we can expect random phone calls to our mobiles asking “Have your flights ever been delayed…?”

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