UK: EU (Denied Boarding) Regulation (EC) No.261/2004

Last Updated: 9 February 2009
Article by Maria Galán and Tina Collier

In this article we look at two recent English county court cases in which passengers sought compensation against Iberia under EU (Denied Boarding) Regulation (EC) No.261/2004.

In recent decisions, the county court has (i) confirmed that a missed connection does not fall under the regulation regime and (ii) held that a carrier is absolved from obligation to compensate passengers for grounding of an aircraft by ATC due to fog.

Kapadia and others v Iberia Lineas Aereas de España S.A.

In this first case, Mr and Mrs Kapadia arrived at Madrid on an Iberia flight from Tenerife to connect with an onwards Iberia flight to London Heathrow. However, their inbound flight was subject to a 50 minute delayed arrival.

The London flight had a scheduled departure time of 16:30 hours. When they presented themselves at the gate at 16:25 hours they were advised that the gate was "closed". Iberia arranged seats on the next available flight to London. The Kapadias complained that they had been denied boarding and were entitled to compensation under the regulation. They argued that when they presented themselves at the gate other passengers were still in the process of actual boarding. Further, a Spanish Iberian employee had written "denied boarding" on their tickets. The claimants rejected Iberia's offer to discontinue with a drop hands agreement on costs.

As Iberia's counsel Tim Marland argued in his skeleton argument before Wandsworth County Court, "Boarding an aircraft is not like jumping on the back of a Routemaster bus as it is pulling away from the bus stop, hence the reason for passengers having to present themselves at the boarding gate well in advance of actual boarding." The court found in favour of Iberia. This was simply a case of missed connection, which did not fall under the compensation regime established by the regulation. The fact that "denied boarding" was written on the claimants' tickets was of no meaning, especially since it was written by an employee whose first language was not English. There was clearly no intent to attach the denied boarding provisions to those words.

Mr Antonio Arenas and others v Iberia Lineas Aereas de España S.A (23 October 2008)

Mr Arenas sought compensation from Iberia following cancellation of Iberia flight IB3177 from London Heathrow to Madrid on 23 December 2007. Due to fog at Heathrow, for reasons of air safety air traffic control mandated a reduction in landings and take offs. Iberia offered passengers (including Mr Arenas and his companions) seats on the next available flight. The seats concerned were in the first class cabin and so Iberia asked passengers to pay the difference in cost. The claimant and his companions declined the offer and made their way to Madrid via Eurostar to Paris and from there by air. Mr Arenas (a Spanish qualified solicitor working in London) acted on his own behalf and on behalf of two companions in seeking £12,000 compensation under the EU denied boarding regulation for, inter alia, the cost of their alternative travel and alleged distress.

The case was heard before the Wandsworth county court on 23 October 2008. The court agreed with Iberia in holding that the circumstances of the cancellation of IB3177 due to fog fell squarely within the limited situations provided for in the regulation ("extraordinary circumstances") which permit a carrier to cancel a flight without obligation to compensate passengers. The claimants were entitled only to either a reimbursement of their ticket or to re-routing. Further, Iberia did not have to foot the bill for the difference in price between the original seat class (economy) and that offered to the claimants (first class). The upgrade provision (Article 10 of the regulation), where a passenger does not have to pay the difference in cost if voluntarily offered a higher grade seat by an airline, is an entirely separate matter and not applicable here. Since the claimants had declined the re-routing option offered to them they were entitled only to a refund of their tickets, a modest sum of £73.65. The claim proved to be a costly one for the claimants: the court ordered that they pay Iberia's costs of £7,085.

Procedural update: county courts

In handling the defence of small passenger claims for carriers including Iberia we are seeing a growing practice on the part of certain county courts in listing claims that lack merit for summary judgment of their own motion following close of pleadings. This has an advantage for defendant airlines: it means that no court fee is incurred, and no time is spent on preparing a summary judgment application (although the actual hearing will require preparation). This goes to reducing the costs burden on the defendant. In addition, it is a clear disincentive to claimants to continue to pursue claims that lack merit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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