


In Lipton and another v BA Cityflyer Ltd the UK Supreme Court has held unanimously that unexpected crew sickness shortly before the operation of a flight does not constitute “extraordinary circumstances” under Regulation EC 261/2004 (EC 261) and the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019 (UK 261). This ruling affirms the Court of Appeal’s 2021 judgment.
The Supreme Court also analysed in detail the question of which version of Regulation 261 applied to the claim, because the cancelled flight took place pre-Brexit but the claim was determined post-Brexit (for ease of reference, we use “Brexit” to mean the end of the Brexit transition period, which was 31 December 2020). The technical position did not make any difference to the outcome of the Liptons’ claim but the Supreme Court felt that it was important to make a clear statement as to applicable law because of the potential impact on all claims arising as a result of rights accrued under other EU legislation.
The case arose out of a flight from Milan to London in January 2018 operated by BA Cityflyer. The flight was cancelled because the pilot had reported ill, and it had not been possible to source a replacement crew member in time to operate the flight. The Liptons were rescheduled and arrived later the same day. They sought the standard fixed compensation under EC261. BA Cityflyer defended the claim on the grounds that the illness of the pilot constituted ‘extraordinary circumstances’ within the meaning of EC261.
At first instance and on appeal in the County Court, the judges agreed with the airline. The Liptons appealed to the Court of Appeal, which looked afresh at the test established by the Court of Justice of the European Union (CJEU) in Wallentin-Hermann v Alitalia (Case C-549/07) and held that crew illness was not an extraordinary circumstance because it was inherent in the operation of the carrier, regardless of the point at which the crew member became ill. They also pointed out that EC261 was never intended to require an overly granular analysis of the facts, with Lord Coulson memorably stating:
“I am of the view that the consumer’s right to compensation under the Regulation cannot depend on when and where the member of staff ate the suspect prawn sandwich.”
BA Cityflyer appealed the decision to the Supreme Court, asking it to look again at the test applied to determine extraordinary circumstances. The Supreme Court denied BA Cityflyer’s appeal.
The key paragraphs are 133 to 173. The analysis begins with a statement of principle:
“Clearly, in applying article 5(3) the court has to seek to follow and apply the basic principles. Individual cases may provide analogies, but there is a limit to which they can provide assistance. Since Regulation 261 exists for the protection of consumers and gives rise to many small value claims usually handled by lower courts with minimal involvement of lawyers, it is appropriate to identify the patterns of cases in terms of broad categories which are straightforward and easy to apply”
There follows a helpful thematic review of all the relevant case law, culminating in commentary on the post-Brexit decision of the CJEU in TAP Portugal (C-156/22), a case in which a pilot sadly died during a layover. The conclusion in the TAP case was that the reason for the absence did not matter:
“it is the very absence, due to illness or death, of one or more crew members, even if it was unexpected, and not the specific medical cause of that absence that constitutes an event inherent in the normal exercise of that carrier’s activity, with the result that the carrier must expect such unforeseen events to arise in the context of planning its crews and the working hours of its staff.”
The Supreme Court was not bound by TAP but was happy to accept the judgment as persuasive, although it did say that it would have reached the same conclusion even without the assistance of that particular case. The court described staff illness as “a mundane fact of commercial life“. They also drew parallels with the Krüsemann case (C-315/15) in which employee absence due to a strike was held not to be an extraordinary circumstance.
After carefully endorsing each element of the Court of Appeal’s reasoning, the judgment concluded with a further statement of principle:
“…Regulation 261…is designed to provide a standardised, if modest, level of compensation to those who suffer the inconvenience of cancelled or delayed flights…The vast bulk of claims arising under the Regulation should be capable of being determined on the papers… it is contrary to the scheme of the Regulation to allow the carrier to embark on a complex analysis of precisely when, why or how a staff member became ill so as to explain their absence and the subsequent cancellation of the flight.”
At the start of the judgment, their Lordships described the Liptons’ flight cancellation and subsequent denial of compensation as “an all too familiar tale of frustration and annoyance“. The tone was clear – attempts by defendant airlines to present complicated defences are not considered to be in the spirit of Regulation 261. The clear message from the Supreme Court to judges in lower courts is “Keep it simple!”.
The Supreme Court has now laid down a definitive statement of how the law should be applied in circumstances where a person’s rights accrued under EU law pre-Brexit.
The analysis in the judgment is extremely lengthy and detailed because of its wide relevance to the interpretation of all EU-derived legal rights, not just those relating to air travel. However (for reasons explained further below) it has minimal impact on delay and cancellation claims and the judges made it clear that no part of the liability analysis in the Liptons’ case turned on their findings as to applicable law.
The clear position as regards the legislation applicable to claims arising out of flights that took place on or before Brexit (31 December 2020) is now this: such claims must be assessed by reference to the text of EC261, not UK 261. This is a departure from the Court of Appeal’s conclusion that UK 261 applied.
However, reference to case law is, of course, vital when analysing 261 claims. The Supreme Court also provided the following guidance on how case law should be used to aid interpretation of EC 261 in disputes relating to pre-Brexit flights:
As the limitation period for bringing EC261 claims in the UK is six years, airlines could in theory find themselves defending claims arising out of pre-Brexit flights until 2027. So what is the practical significance of applying EC rather than UK 261?
There are two substantive differences between EC261 and UK261. The first is minor – EC261 compensation is denominated in Euro whereas UK 261 contains the equivalent GBP amounts. So a pre-Brexit flight claimant could insist on being paid in Euros.
Other than the currency, there is no difference between the legal analysis for pre-Brexit flights and that for post-Brexit flights up to 14 December 2023.
14 December 2023 is when the Aviation (Consumers) (Amendment) Regulations 2023 (ACAR) codified much of the most important pre-Brexit case law (such as Sturgeon) into UK 261 (see our briefing of 22 January 2024 for full details).
ACAR reduces the scope for the Supreme Court or Court of Appeal to depart from key principles of pre-Brexit judgments. Therefore, a court hearing an EC261 claim would in theory have the ability to depart from more pre-Brexit judgments than a court applying UK261 as amended by ACAR. However higher court cases are very rare, and it is difficult to envisage any scenario in which the Court of Appeal or Supreme Court would think it appropriate to overturn one of the judgments selected for codification – particularly as so many of them have just been endorsed here in Lipton.
In summary, while every case must be considered on its own merits, the applicable law question is largely academic. We believe that it would seem safe to apply the same high-level approach to assessing liability regardless of whether the flight took place before or after Brexit.
It does not come as a surprise that the Supreme Court was unwilling to expand the scope of extraordinary circumstances. The Wallentin test is well-established and has been embedded in UK261 by ACAR.
The decision does not change the existing position. Media reports of floodgates opening are exaggerated because crew sickness is not a statistically frequent cause of flight disruption and claims related to crew sickness were already being brought and settled in reliance on the Court of Appeal decision.
Perhaps the most extraordinary thing of all in this whole scenario is that a pair of claims worth £220 each found their way all the way to the Supreme Court. This was largely driven by the wider need to clarify the post-Brexit legal landscape but, regardless of how we got there, we now find ourselves with a UK Supreme Court authority on EC and UK261. The overall tone of this judgment may encourage more claims generally in the light of the message that they can and should be dealt with efficiently on paper.
It should also be borne in mind that we have no reason to believe that the new UK government will abandon plans to introduce mandatory ADR for 261 and other small consumer claims. This Supreme Court judgment will likely become the first place that adjudicators will look for guidance when considering how to apply the body of case law.