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Under EU regulations, fliers who are delayed for three hours or more are entitled to between €250 and €600 ($338 and $812) from their airline, depending on the length of the flight, unless it is proved the wait was due to “extraordinary circumstances”. While factors such as inclement weather and strikes by airport staff are usually ruled “extraordinary”, or beyond the airline’s control, this week’s court case involving easyJet could force carriers to reconsider thousands of claims.
EasyJet had originally denied compensation to Frederique Jager, 31, after her flight from Gatwick to Nice in 2012 landed three hours and 12 minutes behind schedule, citing bad weather. However, as the weather in both London and Nice was not as described when Miss Jager’s flight took place, she pursued the case. It was later revealed that her flight was delayed due to a knock-on effect caused by bad weather on a different route.
The judge at a county court in Macclesfield ruled that easyJet did not have the right to deny Miss Jager compensation in this instance, and awarded her £210.
While some have described the decision as a “landmark” ruling, which could cost airlines millions of pounds, a spokesperson for easyJet said it was not likely to prove significant.
“This ruling is not a binding precedent as it is at county court level, and any cases will continue to be judged on their individual circumstances,” she said. “Delays of this type are extremely rare and easyJet does everything possible to provide information and care for all customers in line with our obligations under EU regulations.”
A spokesman for the Civil Aviation Authority (CAA) admitted that the issue was “something of a grey area”.
“A delay caused directly by bad weather is generally considered outside an airline’s control and therefore airlines do not have to pay compensation,” he said. “However, if an earlier delay is affecting later flights – or causing a knock-on effect – airlines may find it harder to demonstrate that they have taken all reasonable measures to avoid disruption. If they are unable to do this, passengers may be entitled to compensation as the airline has been unable to prove the delay was unavoidable.”
Since the introduction of EU regulations regarding compensation for flight delays, airlines have been accused of using the “extraordinary circumstances” loophole to block legitimate claims.
The CAA lists on its website a number of factors that may be considered “extraordinary”, including delays caused by war or political instability; acts of terrorism or sabotage; security concerns; bad weather at the airport of departure, arrival, or on the intended flight route; damage to an aircraft due to bird strikes; crew illness; unforeseen technical problems; and industrial action.
Issues that don’t qualify as “extraordinary” include “technical issues which arise as a result of the air carrier’s failure to maintain its aircraft” and “poor operational planning by the air carrier”.
Raymond Veldkamp from Flight-Delayed.com, a website that offers assistance with claims, has previously suggested that airlines reject claims “95 per cent of the time”, forcing passengers to either give up or endure a lengthy complaint procedure. He added that carriers will refuse to share information about flights and will deliberately fill their letters to claimants with off-putting legal jargon.
Proving that technical problems could have been prevented by an airline may not be simple, but in January Thomas Cook was ordered by a court in Stoke-on-Trent to pay a couple nearly £700 after their flight was delayed by a mechanical fault.
Nick Trend, Telegraph Travel’s consumer editor, argued at the time that forcing airlines to pay compensation more frequently was likely to push up fares.
“In my view the EU has set the compensation levels too high,” he said. “They mean that an airline whose plane with 200 passengers on board is delayed by a technical fault could be liable for a compensation bill of £100,000 for a single flight – far more than it earns from fares – as well as all the additional operational costs of managing the delay.
“I am all for incentivising airlines to reduce delays, and for passengers to pursue their rights. But I’m concerned that the EU has set the stakes too high, and the only ones likely to win in the end are the lawyers.”