The Dekagram: 11th November 2024

This week’s Dekagram is all about cancellations and delays – what happens when a package holiday is cancelled, what happens when a flight is delayed due to the behaviour of a passenger. Both sets of circumstances are giving rise to increasing numbers of claims, in our experience; here we present you with our handy cut-out-and-keep guide.

When do airlines have to compensate for delays caused by disruptive passengers?

Ryanair boss Michael O’Leary made headlines at the end of the summer by coming out in favour of limiting the number of drinks that passengers should be able to buy at airports. He said that alcohol was a major contributor to disruptive passengers, which can lead to flights being diverted and/or delayed. He told The Telegraph: “Most of our passengers show up an hour before departure. That’s sufficient for two drinks. But if your flight is delayed by two or three hours, you can’t be guzzling five, six, eight, ten pints of beer. Go and have a coffee or a cup of tea. It’s not an alcoholics’ outing.”

He subsequently told Sky News: “If the price of putting a drink limit on the airport, where the problem is being created, is putting a drink limit on board the aircraft, we’ve no problem with that.”

Given the prevalence of the problem, it’s worth considering when passengers can claim compensation if their flight has to be diverted/delayed because of a disruptive passenger.

Airlines have to compensate passengers under Article 5 of Regulation (EC) No 261/2004 for qualifying delays unless they are a consequence of “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”. Events may be classified as ‘extraordinary circumstances’ if both the following conditions are satisfied:[1]

1. by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned; and
2. are outside that carrier’s actual control.

Do disruptive passengers amount to an extraordinary circumstance outside the airline’s actual control?

This was an issue the CJEU looked at in LE -v- Transport Aéreos Portugueses SA C-74/19. In that case, a flight had to be diverted due to a disruptive passenger, causing the claimant in question to arrive at his ultimate destination almost 24 hours late (having missed his connecting flight with the same carrier as a result of the diversion). The claimant sought compensation from the airline under Article 5, and the airline refused on the basis that the delay arose of out of extraordinary circumstance. The question of whether an unruly passenger was in fact an extraordinary circumstance was referred to the CJEU.

It concluded that the first condition was satisfied, holding that (at [41]): “unruly behaviour of such gravity as to justify the pilot in command diverting the flight concerned is not inherent in the normal exercise of the activity of the operating air carrier concerned”.

In relation to the second condition, it went on to hold that (at [43]): “such behaviour is not, in principle, under the control of the operating air carrier concerned, since, first, it is the act of a passenger whose behaviour and reactions to the crew’s requests are not, in principle, foreseeable and, secondly, on board an aircraft, both the commander and the crew have only limited means of controlling such a passenger”.

However, it did make it clear that not all unruly passenger behaviour would have been outside the control of the airline:

“45. However, that is not the case if it is apparent, which is for the national court to ascertain, that the operating air carrier concerned appears to have contributed to the occurrence of the unruly behaviour of the passenger concerned or if that carrier was in a position to anticipate such behaviour and to take appropriate measures at a time when it was able to do so without any significant consequence for the operation of the flight concerned, on the basis of warning signs of such behaviour.

46. In the latter regard, that may be the case in particular, as was noted by the Advocate General in point 51 of his Opinion, the French and Austrian Governments and the European Commission, where the operating air carrier has taken on board a passenger already displaying behavioural problems before or even during boarding, even though, in accordance with ‘NCC.GEN.106 Responsibilities and Authority of the Pilot in Command’, point (b) of Annex VI to Regulation No 965/2012, the pilot in command is to have the authority to refuse to carry or disembark any person, baggage or cargo which may constitute a potential risk to the safety of the aeroplane or its occupants.

47. In such a case, the unruly behaviour of a passenger, although not inherent in the normal exercise of the activity of the air carrier concerned, would nevertheless have been within the control of that carrier, which precludes such behaviour from being classified as an ‘extraordinary circumstance’, within the meaning of Article 5(3) of Regulation No 261/2004.”

Whether passengers delayed as a result of a disruptive passenger will be entitled to compensation will depend on whether the airline either contributed to that behaviour, or was in a position to anticipate it and take reasonable measures that would have not significantly impacted the operation of the flight. So, airlines that serve so many drinks to a passenger that they become drunk and disrupt the flight, or that allow someone already drunk, aggressive or disruptive to board the aircraft, are likely to be prevented from relying on extraordinary circumstances to avoid paying compensation.

About the Author

Kerry Nicholson takes instructions across all of chambers’ core areas. Prior to joining 1CL Kerry worked for the Government Legal Department working across a variety of departments in both litigation and advisory roles. She now enjoys working within the Deka Chambers team on travel related and other claims.

Regulation 12(7) PTRs: Causation of Cancellation

In this, no doubt eagerly-awaited, sequel to an article written back in February 2022 (Package Holiday refunds – Whatever would have been, would have been), I look further at questions of causation which arise under regulation 12 of the Package Travel (etc.) Regulations 2018 and trips cancelled in the context of the Covid-19 pandemic.

Readers may remember, or be independently all too familiar with, the common issues which arise in these types of cases, for instance:

• Was the holiday a package?
• Was Covid-19 significantly affecting the holiday at the time of the cancellation?
• Was it Covid-19 specifically at the destination which was affecting the holiday?
• Did the traveller cancel because of (2) and (3)?

The first is a subject for another day – there can be plenty written about when group holidays such as school trips may or may not be packages.

The second is the principal focus of my earlier article – what is the temporal and causal requirement which must be met when it comes to Covid-19’s impact on the holiday? As it turns out, the approach suggested in that article seems to be the path the County Court (there is as yet no higher authority) has followed in many of the cases for which judgments have been transcribed. A ‘test’ has most recently been proposed by HHJ Beech in Team4 Travel GMBH v Governors of St John Fisher & St Thomas More Catholic High School (Preston County Court, 14 June 2024) as follows: the question is whether ‘a reasonably intelligent individual with common sense concludes that there is no reasonable prospect of the trip going ahead or if it does, it will be significantly different to that contemplated or contracted for’. No doubt Her Honour is a regular reader of the Dekagram.

A caveat for litigators – this is not binding authority; though it will be treated as persuasive by other judges in the County Courts.

The third is touched upon in my earlier article, but has undergone some more recent developments since Brynmawr both in European case law and in the English County Courts. On the issue of geographical scope, the CJEU confirmed in Que Choisir v Premier Ministre (C-407/21) that the Covid-19 global pandemic would a fortiori meet the local requirement: to paraphrase if it’s a global problem, it’s necessarily a local problem. This reasoning has been adopted in the UK in Team4 with the clarification that the disease does need at least to be present at the destination.

Again, neither the Team4 nor the CJEU judgment (being post-Brexit) is binding authority, though both will be treated as persuasive.

The fourth – the necessity (or not) of a causative link between Covid-19 at the destination and the cancellation – is my present focus. This is an area which still lacks clarity and over which I was recently involved in a lively (entirely academic as it turns out) discussion with a Judge in the County Court.

A reminder of regulation 12(7):

‘[…] in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and which significantly affect—

(a) the performance of the package, or

(b) the carriage of passengers to the destination,

the traveller may terminate the package travel contract before the start of the package without paying any termination fee’

Assuming that the traveller has succeeded on issues (2) and (3), above, and the findings are that Covid-19 is present at the destination and is (/will reasonably be) significantly affecting the holiday, the next question is whether a claimant traveller has to prove that it was this which drove the cancellation rather than any other reason?

Unfortunately, Recorder Craven in Brynmawr muddied the waters on this issue somewhat. The Recorder’s judgment at §25 (obiter) was that ‘provided the necessary circumstances exist I do not consider it matters if the traveller also has other motives for terminating’. The words ‘also’ and ‘other’ in that sentence imply that the Recorder’s premise is that Covid-19’s presence at the destination should be ‘a’ motive, even if it is not the operative, or proximate, motive for cancellation.

Recorder Craven’s judgment (if followed, which it need not be) creates therefore what I would term a ‘causation lite’ test for cancellation. Essentially there may be a whole bag of reasons why a consumer chooses to cancel, and as long as one of them is Covid-19 at the destination then causation is made out. There is certainly no requirement for ‘but for’ causation.

But this author would go further. In my view, the legislation requires a ‘causation zero’ approach. Or rather, causation is required only for determination of whether the extraordinary circumstances are significantly affecting the package, and not for whether this drives the cancellation.

Such, in my view, is clear from examination of the language. An ‘event’ is a factual happening and the words ‘in the event of’ make everything up to the word ‘destination’ a factual condition (the protasis of a conditional clause). The power to cancel (the consequent/apodosis) is activated when that condition is met. There are no further words which require, or even suggest, the power must be used in reliance on or because of the existence of the factual condition. The traveller indeed plays no role in the factual condition – in grammatical terms it is an absolute construction.

Consider analogously a rule which says ‘if it is a bank holiday, you may park here for free’. If I park there, entirely oblivious to it being a bank holiday, I am nonetheless entitled to take advantage of the power I have (albeit unknowingly) which has been activated by the fact of the condition (which is entirely outside of my power or control) being met.

That is akin to the effect of regulation 12(7).

Surely not? The District Judge asked me: “Are you really saying that if I cancelled a holiday because I had a family emergency and it just so happened that coincidentally at the same time there were extraordinary circumstances at the destination, I would be entitled to a full refund?”. My answer was, and remains, “yes, and why not?”.

This is consumer protection legislation. It is EU-derived. Litigators are all too familiar with the advantages afforded by European law to the weaker party. Taking another hypothetical example:

Let’s say that there was local rioting at holiday destination X, and let’s say it was accepted that such met the factual condition for cancellation. Suppose 10 consumers had booked a holiday to destination X, 9 of whom had read the news and knew about the problems. They wrote to the tour operator, citing the riots, and were given refunds by virtue of regulation 12(7). The tenth consumer who wasn’t aware of the news, coincidentally at the same time got the flu and wrote in to cancel. Would it be fair for the organiser, the stronger party with the relevant knowledge, to take advantage of the consumer’s ignorance and charge a termination fee? Surely not.

And that is not just reverting to the ‘vibes’ of the legislation. It is in fact what the statute says, and is an interpretation entirely in line with first principles. To require the consumer to cancel strictly because of the extraordinary circumstances would require a number of things:

First, it would require reading additional words into the statute which are not there. That, of course, under principles of statutory interpretation cannot be done unless there is sufficient ambiguity in the language, and then when there are issues e.g. of human rights which are not relevant here.

Second, even if the purpose of the regulation were permitted to be examined, the causation-heavy interpretation would offend against that purpose and indeed the general bent of EU law in the consumer protection field. In my earlier article I referenced the case of Lokman Emrek v Vlado Sabranovic (C218/12) which considered the ‘directing activities’ provisions for consumer protection on the question of jurisdiction in Article 15 of the Brussels (I) Regulation. In that case the French company defendant had a website which was found to be directing activities to Germany; the consumer plaintiff, however, domiciled in Germany, found out about the company not through that website but through acquaintances. There was, as a matter of clear fact, no causal link between the directing activities and the entering into a consumer contract.

The CJEU’s answer was unequivocal: ‘it does not require the existence of a causal link between the means employed to direct the commercial or professional activity to the Member State of the consumer’s domicile, namely an internet site, and the conclusion of the contract with that consumer’.

The logical structure of the jurisdictional provision considered by the CJEU in that case is the same as in regulation 12(7). Where a contract has been concluded with a person who directs activities to a Member State – factual condition – a consumer may bring proceedings in that Member State – logical consequent.

Third, requiring a Court to interrogate the subjective motivation for termination of a contract would offend against basic English principles of contract law, and indeed would again be undesirable from a European perspective, which noted the ‘problems of proof’ which would arise where a consumer was having to evidence what factors influenced their behaviour. It is a truism that wherever possible English contract law prefers objective certainty, and requiring such an investigation into the state of minds of contracting parties in a situation where there is no wording in the legislation would be a significant departure from contractual norms.

What about regulation 12(8)? That says ‘Where the package travel contract is terminated under paragraph (7), the traveller is entitled to a full refund’; does the word ‘under’ there retroactively create that causal link between the protasis and apodosis of regulation 12(7)? My District Judge seemed quite taken with that idea. Again, my answer was and is ‘no’. Regulation 12(8) exists to clarify the extent of the traveller’s damages, as a separate provision it cannot and does not alter the basis for the right which exists under 12(7). Indeed, 12(8) refers to the whole of ‘paragraph (7)’, not just the second part. Using my analogous example, when parking in the bank-holiday free parking zone as a matter of fact I was exercising my right ‘under’ that rule even if I didn’t know about it.

About the Author

Before coming to the Bar, Thomas worked as a Civil Servant, including as a policy advisor at the Brexit Department. His former experience gives him an encyclopaedic knowledge of legislation, treaties and international conventions in the field of Private International Law, which he has applied to his cross-border practice, building a reputation as a go-to barrister for complex questions of jurisdiction and applicable law. He wrote the relevant chapter on such in the latest edition of the leading practitioner textbook, Saggerson on Travel Law and Litigation. His travel practice spans cross-border personal injury, commercial disputes and consumer protection.

[1] Judgments of 4 April 2019, Germanwings, C-501/17, EU:C:2019:288, paragraph 20 and of 12 March 2020, Finnair, C-832/18, EU:C:2020:204, paragraph 38