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Articles | Mon 10th Jan, 2022
We trust that readers have bounded back to work refreshed and invigorated by their time off over the Christmas holidays, and ready for another exciting year at the international coalface. 2021 saw the resolution of the long running litigation in X v Kuoni and arising out of the Tunisian terrorist massacre, and, finally, the resolution of the jurisdictional challenge in Brownlie. But there’s still plenty of litigation to be had in 2022, not least the Covid Cancellation Cases; the various jurisdictional challenges arising out of Brexit; and the operation of the Package Travel and Linked Travel Arrangements Regulations 2018. Not only that, but the team is beavering away as we speak on a new updated edition of Saggerson on Travel Law, the definitive practitioners’ travel law textbook, and we’ve already received requests to unleash it on an unsuspecting nation by way of a book signing tour. We rather like the idea of a roadtrip; watch this space for dates to be announced.
Liability under Regulation (EC) No.261/2004: an Update; and How Not to Dispute the Court’s Jurisdiction
As 2021 came to an end, and as busy practitioners started finally to wind down for Christmas, both the Court of Justice of the European Union and the Court of Appeal of England and Wales marked the turn of the year in style, each producing decisions on the interpretation of the Denied Boarding Regulations.
First, the CJEU. On 21st December 2021 the Court gave judgment in the joined cases Azurair and Others, Cases C-146/20, C-188/20, C-196/20 and C-270/20, in Airhelp, Case C-263/20, and in Corendon Airlines, Case C-395/20. In all of the cases passengers sought compensation not for delay or cancellation of flights, but for flights having been brought forward. The Court determined that where a flight is brought forward by more than one hour, it is to be regarded for the purposes of the Regulation as having been cancelled, with the consequence that passengers are entitled to be compensated in the amounts set out in the Regulation (€250, €400 or €600, depending on length of flight), whether or not they have actually boarded and taken the flight. The rationale behind the decision is that bringing flights forward may be just as inconvenient as pushing them back, although it is noteworthy that pursuant to its previous decision in Sturgeon v Condor, Cases C-402/07 and 432/07 the Court ruled that a delay of three hours rather than one qualified as a cancellation. Therefore airlines cannot seek to avoid paying compensation to passengers by deploying the argument that they have actually carried them to their destination, either as originally planned or by way of rerouting.
Furthermore, passengers who have been informed by a tour operator that they are booked on a particular flight may benefit from the provisions of the Regulation whether or not the airline has actually confirmed the booking, rendering the latter liable under the Regulation for any miscommunication between tour operator and airline, irrespective of whether the fault lies with the airline or not. The Court found in terms that where a tour operator has confirmed a booking but has in fact completely failed to make it, the airline is liable to the would-be passenger and must seek redress from the tour operator. The same goes for cancellation; where an airline notifies an intermediary of a cancellation, but the information is not then passed on to the passenger, the airline bears the brunt of the Regulations and must seek recourse against the negligent intermediary.
The Court’s decision should not surprise even the most blackletter common lawyer; ever since the Court unshackled itself from the wording of the Regulation in Sturgeon and doubled down in Nelson v TUI, Cases C-581/10 and 629/10, its interpretation of the obligations owed by airlines in the event of cancellation and denied boarding has remained blissfully unencumbered by any resemblance to the words actually used by the legislators. It will be fascinating to see whether the decisions of the CJEU will diverge from those of the domestic UK courts in this most stark of examples of Eurointerpretation; and if so, whether all three of the legal systems of the UK will interpret the Regulation in the same way, or differently.
Speaking of which, on the very same day the CJEU was merrily rewriting the Regulation in the context of flights brought forward, the Court of Appeal was handing down judgment in Chelluri v Air India  12 WLUK 266. This decision, following as it does accepted authority on the interpretation of the Regulation, is very much more soothing to the ruffled common lawyer who expects his or her caselaw to be predictable.
The Claimant had made a single booking to fly from the US to India by way of four connecting flights. The first two legs of the journey, operated by an American carrier, took her from the US to London. The third and fourth legs, operated by the Defendant non-EU carrier, took her from London to Mumbai and then on to her final destination. After the flight from London to Mumbai was delayed by approximately 48 hours, the passenger sought compensation under the Regulation.
Practitioners will immediately have spotted the flaw in her claim. Article 3(1)(a) of the Regulation provides that it applies where the flight in question departs from a UK or EU airport. The passenger argued that, although she had made a single booking, her journey was not to be treated as a single flight from the US to India for the purposes of the Regulation and argued that because the delayed flight was from a UK airport she was entitled to compensation. At first instance a District Judge agreed and found in her favour; on appeal the Circuit Judge overturned the decision on the basis of a well-established line of authority to the effect that what matters is the overall journey, not its component parts. Following Wegener v Royal Air Maroc, Case C-537/17, he concluded that because the passenger’s overall journey started and finished outside the EU, and because her flights were operated by non-EU carriers, she was not entitled to compensation under the Regulation.
The Court of Appeal agreed, and dismissed the passenger’s appeal. For the purposes of Article 3(1)(a), a flight which comprised more than one leg was to be treated as a whole, provided it was booked as a single unit. This is perhaps unsurprising, given that it was the rationale behind the decisions in a plethora of cases, including Wegener itself, Gahan v Emirates  1 W.L.R. 2287, OI v Air Nostrum Lineas Aereas del Mediterraneo SA, Case C-191/19, and CS v Ceske Aerolinie AS, Case C-502/18. This proposition does not, however, apply to any return flight from the final destination (cf in this regard Emirates Airlines Direktion fur Deutschland v Schenkel, Case C-173/07). For the purposes of Article 3(1)(a), a multi-leg journey booked as a single unit departs from its initial place of departure (cf Air France Sa v Folkerts, Case C-11/11 and Bossen v Brussels Airlines SA/NV, Case C-559/16 in this respect).
So far, then, the Court of Appeal has come down firmly on the side of following established precedent, whether it derives from the jurisprudence of the CJEU or domestically. It will be interesting to see whether it does so going forward, and in cases in which the purposive approach of the CJEU might be said to be at odds with the rather less unconstrained approach traditionally taken by the domestic courts.
Disputing the Jurisdiction of the Courts of England and Wales
21st December was a bumper day for disputes involving airlines; as well as the decisions of the CJEU and Court of Appeal discussed above, the Commercial Court joined the fray, in Aelf v Surinam Airways  12 WLUK 309.
The claim related to a settlement agreement reached between the Claimant aircraft leasing company and the Defendant. The settlement agreement contained an exclusive English jurisdiction clause. A dispute duly arose about payments due under the agreement, and the Claimant obtained the court’s permission to serve the claim form on the Defendant out of the jurisdiction. The claim form was duly served in Surinam by appointment, by a bailiff leaving a copy with the Defendant’s manager of legal affairs. The Defendant attempted to email an Acknowledgement of Service and, when that was rejected by the court, attempted to file its first Acknowledgement through CE-file the next day on 28th June 2021, shortly after the time limit for doing so had expired. The Acknowledgement did not contain a physical address for service in the UK and the box indicating an intention to contest jurisdiction was not ticked. The Defendant subsequently instructed English solicitors who, on 9th July, filed an application for an extension of time in which to file a Defence. They then, on 23rd July, filed an application challenging jurisdiction, and, on 26th July, a further Acknowledgement of Service featuring an intention to dispute jurisdiction. The Defendant disputed the validity of service, asserting that the proceedings should have been served in accordance with the State Immunity Act 1978 Pt I s.12(1).
The court held that the Defendant could not challenge the jurisdiction of the courts of England and Wales, having submitted to them by way of:
(a) its application for an extension of time for the service of its Defence – an application for an extension of time for service of a Defence was inconsistent with an intention to contest jurisdiction. It was apparent from the scheme adopted by CPR Rule 11 that where an application was made to contest jurisdiction, there was no requirement to serve a Defence before the hearing of the application and, if the application was unsuccessful, the Defendant had to file a further Acknowledgment and the court would make directions for the filing and service of a Defence. An application to extend time in which to serve a Defence was a step in the proceedings whose object was to determine the merits of a claim;
(b) its indication in the first Acknowledgement that it intended to defend the claim rather than contest jurisdiction, and;
(c) its failure to indicate that it intended to contest jurisdiction prior to the application to do so on 23rd July and its failure to reserve the right to do so.
The decision, whilst undoubtedly supported by authority and by the express provisions of the CPR, makes the author feel quite nostalgic. It has sometimes seemed, in recent years, that Defendants could file whatever they pleased by way of Acknowledgment of Service, and the courts would happily wave through a jurisdictional challenge; the argument that a party has submitted to the jurisdiction by way of its conduct and of its failure to file the appropriate Acknowledgement has fallen quite out of favour in recent times. Could this decision signal a return to more stringent times? Only time will tell.
About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury.
Imagine our amazement when we read that research conducted by boffins at Nottingham Trent and De Montfort Universities shows that barristers who use the word ‘respect’ when speaking to opponents in court “may actually be conveying disrespect”. Researchers found that when used between opposing barristers, the words ‘with respect’ can be used to attack an opponent’s level of competence. We’re still reeling from this revelation; whatever will they discover next?!