Briefing

HQ: Aviation Quarterly Case Report

This is the Q3 2026 edition of our quarterly case report on English court judgments relating to the aviation industry. In this edition, we cover aircraft finance and leasing, airports and infrastructure, slot regulations and general aviation.

Aircraft financing and leasing

FW Aviation v VietJet (second quantum judgment)

The second quantum judgment in the FWA v VietJet proceedings primarily dealt with issues relating to (a) the cost of putting the four aircraft concerned into the redelivery condition as required in the leases and (b) enforcement costs. Our detailed analysis of the judgment can be found here.

The Court found that the termination provisions in the leases were not an exclusive remedy and further losses could in principle be claimed from the lessee (VietJet) under the contractual indemnities, e.g. the cost of putting the aircraft into the redelivery condition. The Court also found that the indemnities in the leases were intentionally wide and encompassed all the claimed enforcement costs; the indemnities were not, as VietJet contended, limited to third-party claims. The finding with perhaps the broadest significance was that the hypothetical costs of putting the aircraft into the redelivery condition (i.e. hypothetical compliance with all return conditions in the lease) were not recoverable under the indemnities; recovery was limited to the actual (and reasonable) costs incurred by the lessor, FWA.

The Court also made findings on assigned rights, which each turned on the specific facts for each issue (i.e. exactly what rights were assigned and when) and the wording of the relevant assignment provisions (see full briefing for more detail). The quality of the factual and expert evidence was also key for certain issues. This was illustrated by the Court finding that, based on the available evidence, it could not reliably make an order in respect of FWA’s legal costs relating to enforcement. The takeaway is that, if there are any anticipated issues with evidencing losses (e.g. dealing with legal invoices and privilege), they will need to be ventilated at an early stage. The Court will determine the final quantum at a separate hearing.

Saudi Arabian Airlines v International Airfinance Corporation and others

This case concerns default notices that were served in respect of 49 leased aircraft. The Claimant alleges that the notices were served as part of an unlawful campaign of oppression that breached a covenant of quiet enjoyment in each of the leases. The Defendants deny that there was any such campaign. In two recent hearings, the Court was required to determine two procedural issues before the trial, which is listed for November 2026.

Firstly, the Claimant sought orders for specific disclosure and for the Defendants to produce a revised disclosure list detailing its privilege claims. The Court ordered further but limited additional disclosure, but declined to order the Defendants to file a revised disclosure list detailing its privilege claims because there was nothing to suggest that the original disclosure exercise had been carried out improperly.

Secondly, the Claimant was given permission to re-amend its particulars of claim, and to rely on additional expert evidence, in order to advance a claim for negotiating damages. The Court found that the amendments would not affect the trial date and they had a sufficient prospect of success in a developing area of law.

Airports and infrastructure

R (on the application of Gatwick Airport Ltd) v Secretary of State for Transport (International Air Transport Association, intervening) [2026] EWHC 1733 (Admin)

Gatwick Airport brought a claim for judicial review of the Secretary of State for Transport’s (the “SST”) decision to make the Airports Slot Allocation (Alleviation of Usage Requirements) Regulations (the “Regulations”). The Regulations permitted airlines to return up to 30% (up from 20%) of their slot allocations at Gatwick and other airports without prejudicing future slot allocations. The SST made the amendment to the minimum “use it or lose it” requirement in response to the disruption and increased uncertainty resulting from the Middle East conflict. British Airways, TUI and IATA appeared as interveners.

Gatwick challenged the introduction of the Regulations on two main grounds: (1) illegality and/or irrationality (alleging that the SST acted ultra vires in not considering whether the overall effect of the Regulations would increase the regulatory burden or, if she did, reaching an irrational conclusion); and (2) procedural impropriety (alleging that the SST conducted a flawed consultation). The Judge considered these grounds sufficiently arguable and granted permission for judicial review at an expedited rolled-up hearing.

On the first ground, the Court found that the Regulations did not increase the regulatory burden within the meaning of the Retained EU Law (Revocation and Reform) Act 2023 because the scheme was voluntary. Whilst the Court acknowledged Gatwick’s argument that the Regulations would cause a financial impact, it did not consider that this constituted an increased ‘regulatory burden’ because it would not arise from airports having to comply with the Regulations. Further, the Court found that it was not irrational for the SST to rely on the advice of her officials that the Regulations would not increase the regulatory burden.

On the second ground, the Court found that the SST’s consultation process for the Regulations was conducted in line with established principles for a fair and rational consultation. Although the four-day consultation period was short, the Court found that there was real urgency to act and it was targeted at relevant stakeholders (airports, airlines, ACL etc.) who were sophisticated commercial operators with knowledge of the slots regime and previous alleviation measures (e.g. during the Covid-19 pandemic); and fifty-nine responses were received. Overall, the Court considered that Gatwick had not shown that the consultation process was flawed.

Barclay v Secretary of State for Transport

The Court of Appeal refused permission to appeal the dismissal of a judicial review challenge to the Secretary of State for Transport’s (“SST”) decision to make a development consent order (“DCO”) for Gatwick Airport’s Northern Runway Project. The DCO authorises the upgrade of Gatwick Airport’s northern runway and associated airport development, together with the lifting of restrictions to permit the airport’s northern and southern runways to operate as dual runways. Permission to appeal was sought on a number of planning, economic and environmental grounds.

The Court rejected the Claimants’ contention that the national aviation policy framework did not contemplate expansion in the terms of the DCO, on the basis that the Airports National Policy Statement and the Government’s Making Best Use of Existing Runways policy support the delivery of additional airport capacity through more intensive use of existing runway infrastructure, which is consistent with the DCO scheme. The Court also found that the SST’s assessment of the economic benefits of the scheme was adequately supported by a broad range of evidence including passenger demand, market characteristics and the role of Gatwick within the wider aviation market. Challenges concerning aviation emissions were also rejected, including on the ground that the SST was entitled to find that falling short of contributing to the UK’s net zero trajectory would be mitigated in the long term by policies brought forward in the Jet Zero Strategy.

The decision highlights the broad discretion afforded to public body decision-makers when weighing competing evidence on need, economic benefit and environmental impacts. It is also notable that the Court dealt with this case within two months of the High Court judgment, reflecting the increasingly expedited treatment of challenges to nationally significant infrastructure projects.

Gatwick Airport Ltd v Persons Unknown and Heathrow Airport Ltd v Persons Unknown

Protest injunctions: airport trespass and nuisance

In July 2026, the court heard the second annual reviews of the long-running “Persons Unknown” injunctions protecting Heathrow and Gatwick airports from trespass and nuisance by environmental protesters. The two judgments that were subsequently handed down applied the same Supreme Court framework for assessing whether a material change of circumstances justifies varying or discharging a standing injunction, and reached the same result: both injunctions were continued, and in each case the definition of “Persons Unknown” was extended to capture protesters campaigning on wealth inequality grounds, reflecting the courts’ finding of a demonstrated “fluidity” between Just Stop Oil and newer campaign groups such as Take Back Power.

Heathrow Airport Ltd v Persons Unknown [2026] EWHC 2250 (KB)

Applying the Supreme Court’s guidance in Wolverhampton City Council v London Gypsies and Travellers on the purpose of a review hearing, and Ritchie J’s observation in High Speed Two (HS2) Limited v Persons Unknown that a review is “not starting de novo“, the Court’s focus was on whether there had been any material change of circumstances justifying a variation or discharge of the order. The Court was satisfied that the order made at the first review had been properly served on both the named and unnamed defendants, none of whom attended or was represented at the hearing.

Heathrow’s submissions noted that in May 2025 there was evidence of a “comeback” by Just Stop Oil and that the group’s website in May 2026 continued to reference Heathrow. Its evidence also pointed to a link between environmental campaigning and a newer focus on wealth inequality, citing the activities of groups such as Take Back Power (direct action against the “super-rich”, including at the Ritz Hotel, a Ferrari dealership in Berkeley Square, Harrods, Liberty and Claridge’s). These groups, it was alleged, could perceive Heathrow as associated with the “super-rich” and long-haul travel. The Court appears to have accepted this evidence, together with Heathrow’s submission that the absence of further breaches since July/August 2024 demonstrated the effectiveness of the injunction as a deterrent rather than showing that it was no longer necessary. The Court held that there had been no material change of circumstances justifying discharge and continued the injunction.

Gatwick Airport Ltd v Persons Unknown [2026] EWHC 2251 (KB)

As in Heathrow, the Court applied the Wolverhampton test and the “not starting de novo” principle in considering whether there had been any material change of circumstances affecting continuation of the order, noting that the principle had most recently been elaborated by Lambert J in Valero Energy Ltd v Persons Unknown [2026] EWHC 397 (KB).

Gatwick’s evidence noted that equivalent injunctions in respect of numerous other UK airports had all been continued by Soole J in reviews conducted between 30 June and 9 July 2026, and that Gatwick, as the second-largest UK airport, would be particularly exposed to protester activity if it were left as the only major English airport without a continuing injunction. Gatwick also noted the grant of development consent in September 2025 for its Northern Runway Project, which it said heightened the risk of the airport being targeted by environmental protesters. The Chief Superintendent of Sussex Police, responsible for policing at the Airport, gave evidence supporting the continuation of the order as “a useful and necessary tool to support Sussex Police’s ability to keep the airport safe and operational” given “a real risk that Gatwick will be targeted again“.

Although there had been no disruptive protest activity at UK airports since the 2025 order, Gatwick’s evidence suggested the injunctions may be having a deterrent effect, displacing protest activity to unprotected sites, consistent with the same evolution from Just Stop Oil towards wealth-inequality-focused campaigning described in the Heathrow review. The Court accepted that there remained a real and imminent risk of harm that justified continuing the injunction.

General aviation

Gardner Aerospace Holdings Ltd v Upton

This case concerned a claim by members of a group of companies against a former director for breach of fiduciary duty. The ‘Gardner’ group of companies was involved in manufacturing parts for the aerospace industry and had operations in several countries. In 2021, GAH (a company within the Gardner group) was facing financial pressure and the board backed a debt-for-equity swap between its Chinese parent company, Ligeance Aerospace Technology Company Limited (“LAT“), and LAT’s parent. This arrangement triggered reporting obligations under the National Security and Investment Act 2021 and could have resulted in a call-in notice which would restrict or prevent the restructuring transaction. The Claimants alleged that the Defendant, AU, tried to prevent the restructuring transaction for various reasons in breach of his fiduciary duties.

The Court found that AU secretly worked to undermine the board-approved restructuring, including lobbying MPs to oppose the deal, proposing divestment remedies, soliciting interest from third-party buyers without approval, sending correspondence to GAH’s bank which sought to destabilise its confidence in the transaction, and pursuing alternative employment with a company that was considering an acquisition in the event of a divestment by GAH. The Court found that these actions were in breach of AU’s duties as a director under sections 171, 172 and 175 of the Companies Act 2006. AU had exercised his powers for improper purposes, to the detriment of GAH’s interests and despite knowing that those interests were best served by the approval of the restructuring transaction.

Aerotron Limited v Hermes Aviation Limited

The judgments in this case concerned the recognition of a foreign (Maltese) judgment and whether a stay should be granted pending the determination of an appeal.

Hermes Aviation obtained judgment against Aerotron in Malta. After a dispute about the method for paying the judgment debt and whether Aerotron could obtain good discharge of the debt because Hermes was defunct, Aerotron made an application for an order refusing recognition of the Maltese judgments in England. The Court dismissed the application on the basis that concerns over double-payment could be addressed by Aerotron paying the judgment debt to Hermes’ lawyers and by the parties agreeing appropriate settlement and release wording.

Aerotron appealed the decision to dismiss its application and made a further application for a stay of execution pending determination of its appeal. Importantly, Aerotron had put in place arrangements to pay the judgment debt through its Maltese lawyers, but Hermes had refused to accept the proposed method of payment. The Court granted the stay, finding that there could be a real risk of injustice if it were not granted.

Harry Norbury, Trainee Solicitor, assisted in the preparation of this briefing.