The Dekagram: 5th October 2026

This week we welcome Daniel Boal to the Dekagram family. Daniel, who was called in 2020 and who will continue to practice out of Manchester, brings us news this week of developments within the European Union relating to the Denied Boarding Regulation, amendments which will surely result in ever increasing divergence between the position governed by EU and by UK law in this sphere. Meanwhile Conor Kennedy examines a case on res judicata and whether it is a matter of substantive or procedural law – a question which we would have thought would come up more frequently.

Finally! The Amended Denied Boarding Regulation: Regulation (EU) 2026/2202

Introduction

Regulation (EU) 2026/2202 provides an amended Denied Boarding Regulation that will govern the EU system of compensation and assistance for airline passengers who are denied boarding, experience cancelled, delayed or rescheduled flights, miss connecting flights or are upgraded or downgraded. This amends the previous Denied Boarding Regulation (Regulation (EC) No 261/2004) from a little over two decades ago.

Much of the amended Regulation formalises the approach taken by the Court of Justice of the European Union in existing case law. It will apply from 23 October 2027. This article outlines some of the changes made to the Denied Boarding Regulation.

Delay (Article 6)

Originally, the Regulation provided compensation only for denied boarding (Article 4) and cancellation (Article 5), by reference to Article 7. Article 6 gave delayed passengers assistance, but no compensation.

In Joined Cases C-402/07 and C-432/07 Sturgeon v Condor and Others, the Fourth Chamber of the CJEU read into the Denied Boarding Regulation a right to compensation for delay lasting for three or more hours. This decision was later (unsuccessfully) challenged and has since been applied consistently by European and national courts.

The amended Denied Boarding Regulation has replaced Article 6 and now places the right to compensation for delay on a statutory footing. Passengers are entitled, upon request, to compensation under Article 7 when they reach their final destination with a delay at arrival exceeding three hours. The new definitions in Article 2 also settle how delay is measured: against the arrival time on the ticket as issued at booking (subject to rules on rescheduling), with ‘time of arrival’ meaning the moment the aircraft reaches the stand with its parking brakes engaged.

Two new provisions sit alongside Article 6. Article 6a introduces rules on tarmac delay, defined as more than 30 minutes on the ground with the doors closed before take-off, or between touchdown and the doors opening. During a tarmac delay the carrier must ensure adequate heating or cooling and free access to toilets, and must provide drinking water free of charge unless doing so would extend the delay or conflict with safety or security requirements. Where a tarmac delay reaches two hours at an EU airport, the aircraft must proceed to a gate or another suitable point where passengers can disembark, unless safety, immigration, air traffic control or security reasons prevent it.

Article 6b deals with missed connecting flights on a journey made under a single air transport contract. Responsibility sits with the carrier operating the delayed earlier flight, which must reroute and assist the passenger, offer reimbursement if rerouting is not possible within five hours, and pay compensation if the passenger reaches the final destination more than three hours late. This formalises the approach the CJEU took in Folkerts (C-11/11).

Extraordinary Circumstances (Articles 2, 6c and the Annex)

Under the previous Denied Boarding Regulation, carriers escaped liability to pay compensation where a cancellation was caused by ‘extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.’ Extraordinary circumstances were not defined within the Denied Boarding Regulation itself, although some limited examples were provided in the recital.

The amended Denied Boarding Regulation provides practitioners with more details as to what will constitute extraordinary circumstances. Article 2 now contains a formal definition: extraordinary circumstances are events which by their nature or origin are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. The recital confirms that these two conditions, drawn from settled case law, are cumulative.

Article 6c and the new Annex also add a non-exhaustive list of circumstances which are considered to constitute ‘extraordinary circumstances’. The list includes:

• Circumstances not arising from the operation of the aircraft: This includes weather conditions incompatible with the safe operation of the flight, war or insurrection or serious cross-border threats to health.
• Incidents related to a passenger: This includes unruly passenger incidents within the meaning of the Montreal Protocol 2014 (unless the operating air carrier caused the occurrence of that behaviour) or health risks or medical emergencies discovered at short notice before the flight departure.
• Other incidents: 12 examples are given, including damage caused by acts of sabotage or terrorism, hidden manufacturing or design defects revealed by the manufacturer or a competent authority, and certain strikes (although strikes by a carrier’s own staff qualify only where they arise from demands that only public authorities can satisfy).

Events that are not listed are assessed case by case against the definition contained in Article 2.

Article 6c(2) places the burden of proof squarely on the carrier. It must pay compensation unless it proves that the disruption was caused by extraordinary circumstances and could not have been avoided even if it had taken all reasonable measures. There must be a direct causal link between the event and the disruption, and the carrier bears the burden of establishing both that link and that all reasonable measures were taken. The defence extends expressly to delays and missed connections, not only cancellations.

Article 7(9) adds a procedural requirement. A carrier invoking extraordinary circumstances must state which item in the Annex it relies on, or explain why an unlisted event should qualify, and must give a clear and substantiated explanation of how the causation and reasonable-measures conditions are met. Recital 6 requires this to be in plain language and specific to the passenger’s flight.

Other notable changes

Other notable changes include:

• The revised definition of “cancellation” in Article 2 now includes cases where the departure time on a passenger’s ticket has been brought forward by more than one hour.
• Under the amended Article 5, the right to compensation for a cancellation is lost if passengers are informed at least 14 calendar days before the departure date on the ticket. With less notice, it is lost if the carrier offers rerouting, allowing a passenger to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.
• Article 7(9) requires compensation requests to be submitted within nine months of the actual date of departure indicated on the passenger’s ticket.

Conclusion

The amended Denied Boarding Regulation largely writes into legislation previous decisions made by the CJEU, but some procedural changes (such as a deadline of nine months to make a claim for compensation) mean that it is worthy of a detailed review by practitioners before it applies from 23 October 2027.

About the Author

Dan Boal was called in 2020 and now has a broad multi track practice. He has been instructed to act in cases involving traumatic brain injuries, serious psychological injuries, fatal accidents, chronic pain conditions and complex orthopaedic injuries, amongst others. He usually acts in cases where the pleaded value is between £100,000 and £1,000,000. He was ranked as a ‘Rising Star’ in the 2025, 2026 and 2027 editions of the Legal 500.

Issue Estoppel by Foreign Judgments is governed by the Lex Fori, not Rome II: Aviator LLC & Others v Spribe OU [2026] EWCA Civ 1224

The Court of Appeal has determined that, for the purposes of private international law, the doctrine of res judicata falls outside the scope of Rome II.

The Facts

The case involved a number of parties from different jurisdictions, namely Georgia, Malta, and Estonia. It related to online gambling “crash games”, which (in order to avoid going into unnecessary detail) can be regarded as a kind of virtual blackjack. The Claimants alleged subsistence and ownership of copyright in a logo which depicted an ascending single-propellor airplane, and which was used to market the aforementioned crash games. They further alleged that the Defendant, Spribe, had copied their logo and used it for the promotion of their own crash games in the UK. Spribe counterclaimed for trademark infringement and passing off.

Aviator and Spribe were parties to related proceedings in Georgia, in which Aviator had successfully challenged the validity of a trademark registered by Spribe. In the present English proceedings, Aviator then raised a plea of res judicata, arguing that issue estoppels arose from the Georgian proceedings which precluded the re-litigation of the pleaded issues as to subsistence and ownership of copyright in the logo.

It was common ground that, by virtue of Article 8(1) of Rome II, the law applicable to each of Aviator’s claims for copyright infringement in respect of countries outside the UK was the law of the country in question. Aviator nevertheless relied upon the presumption that foreign law is the same as English law, and Spribe ultimately agreed to the presumption being applied.

The relevant provisions of Rome II

The parties disagreed as to whether the doctrine of issue estoppel was unknown to some systems of law, and the issue before the court was whether Rome II displaced the prior rule whereby the effect of a foreign judgment was governed by the lex fori.

Key provisions of Rome II were:

Article 1(3):

“This regulation shall not apply to evidence and procedure […]”

and –

Article 15:

“The law applicable to non-contractual obligations shall govern in particular:

(a) the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;

(b) the grounds for exemption from liability, any limitation of liability and any division of liability;

(c) the existence, the nature and the assessment of damage or the remedy claimed;

[…]

(h) the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.”

The Judgment

The Court of Appeal recited the authorities which explain that, in so far as domestic English law is concerned, the nature of res judicata is substantive rather than procedural. This may be contrasted with the abuse of process doctrine which originated in Henderson v Henderson (1843) 3 Hare 100, which is “a concept which informs the exercise of the court’s procedural powers”. The issue estoppel recognises and protects a private law right which a party can enforce by pleading the issue estoppel in subsequent proceedings.

Turning to the international sphere, the Court noted that the case law of the Court of Justice of the European Union (see e.g. Case C-234/04 Kapferer v Schlank & Schick GmbH [2006] ECR I-2606 at [20]-[22]) showed that EU law characterises issue estoppel as falling “within the realm of adjectival law (rules which regulate how legal proceedings are conducted and how substantive law is enforced), not within the realm of substantive law […].”

For the Court, the effect of a prior foreign judgment on the claim before the court was “inherently a field governed by the law of the receiving state, the lex fori, because that law must decide how to treat the foreign judgment. Certainly, this is how it is treated by English conflicts rules […]”

The Court of Appeal acknowledged that “quite a lot of judicial ink has been spilled on the relationship between Article 15 (scope of the applicable law) on the one hand and Article 1(3) (exclusion of evidence and procedure) on the other hand”, but there could be no dispute that the question was settled “by the decision of this Court in Nicholls v Mapfre […] As Dingemans LJ held in Nicholls […] the words ‘evidence and procedure in Article 1(3) should not be given either a ‘very wide’ or a ‘strict or narrow’ interpretation.” As such, the correct approach was to interpret both Article 1(3) and Article 15 in accordance with their wording, purpose and context. Authority which treated Article 15 broadly, and Article 1(3) narrowly, “should no longer be regarded as good law.”

Spribe did not contend that the effect of a prior judgment was a matter that falls within Article 15(a)-(h), but relied on 15(a) as confirming that the lex causae governs the basis and extent of liability, and that it follows that it is necessary to look to that law (i.e. the lex causae) to determine what issues on liability arise, and that the question of whether a prior foreign judgment determines an issue is one of those issues.

Aviator contended that this argument confused the nature of the rule with its effect. Aviator argued that the rule is not part of the law governing a non-contractual obligation merely because its operation may affect whether liability is established.

The Court held that Aviator’s analysis was supported by the travaux preparatoires, which provided that “In line with the general concern for certainty in the law, Article 11 confers a very wide function on the law designated. It broadly takes over Article 10 of the Rome Convention, with a few changes of detail: a) ‘the conditions and extent of liability, including the determination of persons who are liable for acts performed by them’ […] b) the grounds for exemption from liability, any limitation of liability and any division of liability […]”

The Court was clear that “this confirms that Article 15 concerns issues of substantive law, not adjectival law.” Likewise, the European Parliament’s explanation of the rationale for Article 1(3) was that “this amendment takes account of the universal principle of ‘lex fori’ within private international law that the law applicable to procedural questions […] is not the law governing the substantive legal relationship (‘lex causae’), but, rather, the proecural law of the forum.” Lord Justice Arnold concluded that it was not an issue which fell within the scope of Rome II at all.

Even if the Court were wrong about that, then it held that the issue would nevertheless fall within Article 1(3) rather than within Article 15. If it were otherwise, different laws would apply to a plea of issue estoppel depending on whether the claim was governed by the Rome II Regulation or not. Further, potentially different laws would apply to issue estoppel with respect to different causes of action, such as contract and tort, despite the fact that they might relate to the same issue. It made sense that the same law should apply to any question of issue estoppel, regardless of the nature of the underlying claim and of the origin of the prior judgment.

Analysis

The Court’s judgment was a pragmatic one which recognised the importance of streamlining the operation of the courts of multiple jurisdictions, in line with existing English conflicts rules. To hold that issue estoppel fell within Rome II would lead to absurd results, such as the scenario of the issue of whether an English judgment gave rise to an issue estoppel being governed not by English law but by the law specified by the Rome II Regulation.

It remains necessary to characterise the rule in question, rather than to focus on the label attached to it by domestic law. More significantly, the Court emphasised that Nicholls v Mapfre has settled that neither Article 1(3) nor Article 15 is to be read expansively or restrictively.

About the Author

Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.