England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
SITTING AT SHEFFIELD
(HIS HONOUR JUDGE ROBINSON)

		Royal Courts of Justice Strand London, WC2A 2LL
		30 October 2014

LORD JUSTICE VOS:

Introduction

1. The central question in this case is whether the provisions of paragraph 33(2) of Schedule 3 (paragraph 33(2)) to the Equality Act 2010 (the 2010 Act) are sufficient to exclude the application of the duties contained in section 29 of the 2010 Act to the provision of airport services at an airport outside the European Union (EU).
2. Paragraph 33(2) provides in essence that the anti-discrimination provisions in section 29 of the 2010 Act do not apply to anything governed by regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (the Regulation).
3. The judge held in his judgment dated 23 May 2013 that the discrimination concerned in this case relating to airport services at non-EU airports was outside the provisions of the Regulation and therefore not "governed by" the Regulation. Accordingly, section 29 of the 2010 Act applied to the alleged discrimination and the Defendant, Thomas Cook Tour Operations Limited (Thomas Cook), was liable for it.
4. Thomas Cook argues that the judge was wrong because the Regulation provides a high level of disability protection for air travellers across EU Member States. Just because the particular circumstances of this case were not covered by the specific provisions of the Regulation, since they related to a non-EU airport, did not mean that the circumstances generally were not "governed by the Regulation." If this were not the case, it is said that the efficacy of EU law would be lost.
5. Thomas Cook appeals with the permission of the judge. Coulson J ordered on 21 July 2013 that the appeal should be heard by the Court of Appeal rather than the High Court by way of a leapfrog appeal under CPR Part 52.14(1) on the basis that it raises an important point of principle which is not governed by any binding authority.
6. The facts are not in dispute. The Claimant, Mrs Janice Campbell (Mrs Campbell), is disabled by arthritis and has difficulty walking and standing. She booked a package holiday in Tunisia with Thomas Cook which was unfortunately interrupted by civil disturbances in that country necessitating her repatriation.
7. Mrs Campbell was transported to Monastir Airport to catch a flight back to the UK on 15 January 2011, but was not provided with any seating or wheelchair facilities whilst she waited for 4 hours, only to find that no flight was available and she had to return to her hotel. The standing and waiting caused her to suffer from a migraine which led to vomiting and extreme discomfort the following day when she was taken back to the airport finally to catch a flight to Manchester (though she had flown from and wished to return to the East Midlands Airport).
8. The judge found that Thomas Cook had failed to make reasonable adjustments for Mrs Campbell by providing auxiliary aids and services at Monastir Airport such as seating and assistance with check-in contrary to its duties under sections 20(5), 21 and 29(7) of the 2010 Act. Thomas Cook was thereby guilty of disability discrimination and liable to pay Mrs Campbell damages which he assessed at £7,500. None of that is under appeal.
9. What is under appeal, however, is the proper construction of paragraph 33(2) which provides as follows:

"Section 29 [of the 2010 Act] does not apply to anything governed by [the Regulation]."

It is hard to imagine a simpler provision, yet the meaning of the words "anything" and "governed by" have given rise to real controversy.

The relevant provisions of the Regulation

10. It is important to understand the objectives, purposes and scope of the Regulation. To do so I will need to set out its recitals and provisions at somewhat greater length than would normally be necessary.
11. The following recitals are particularly relevant to the proper construction of the Regulation:

"(3)This Regulation should not affect other rights of passengers established by Community legislation and notably Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours and Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights. Where the same event would give rise to the same right of reimbursement or rebooking under either of those legislative acts as well as under this Regulation, the person so entitled should be allowed to exercise that right once only, at his or her discretion.

(5) Assistance given at airports situated in the territory of a Member State to which the Treaty applies should, among other things, enable disabled persons... to proceed from a designated point of arrival at an airport to an aircraft... including embarking... The assistance should be organised so as to avoid interruption and delay, while ensuring high and equivalent standards throughout the Community and making best use of resources, whatever airport or air carrier is involved...

(17)Complaints concerning assistance given at an airport should be addressed to the body or bodies designated for the enforcement of this Regulation by the Member State where the airport is situated. Complaints concerning assistance given by an air carrier should be addressed to the body or bodies designated for the enforcement of this Regulation by the Member State which has issued the operating licence to the air carrier...

(19)Since the objectives of this Regulation, namely to ensure high and equivalent levels of protection and assistance throughout the Member States and to ensure that economic agents operate under harmonised conditions in a single market, cannot sufficiently be achieved by the Member States and can therefore, by reason of the scale or effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives."

12. The following provisions of the Regulation are relevant:

"Article 1

Purpose and scope

1. This Regulation establishes rules for the protection of and provision of assistance to disabled persons and persons with reduced mobility travelling by air, both to protect them against discrimination and to ensure that they receive assistance.

2. The provisions of this Regulation shall apply to disabled persons and persons with reduced mobility, using or intending to use commercial passenger air services on departure from, on transit through, or on arrival at an airport, when the airport is situated in the territory of a Member State to which the Treaty applies.

3. Articles 3, 4 and 10 shall also apply to passengers departing from an airport situated in a third country to an airport situated in the territory of a Member State to which the Treaty applies, if the operating carrier is a Community air carrier...

Article 3

Prevention of refusal of carriage

An air carrier or its agent or a tour operator shall not refuse, on the grounds of disability or of reduced mobility:

(a) to accept a reservation for a flight departing from or arriving at an airport to which this Regulation applies;

(b) to embark a disabled person or a person with reduced mobility at such an airport, provided that the person concerned has a valid ticket and reservation.

Article 4

Derogations, special conditions and information.

1. Notwithstanding the provisions of Article 3, an air carrier or its agent or a tour operator may refuse, on the grounds of disability [in certain specified circumstances relating to safety and airport size]...

In the event of refusal to accept a reservation on the grounds referred to under points (a) or (b) of the first subparagraph, the air carrier, its agent or the tour operator shall make reasonable efforts to propose an acceptable alternative to the person in question...

Article 7

Right to assistance at airports

1. When a disabled person or person with reduced mobility arrives at an airport for travel by air, the managing body of the airport shall be responsible for ensuring the provision of the assistance specified in Annex I...

Article 10

Assistance by air carriers

An air carrier shall provide the assistance specified in Annex II without additional charge to a disabled person or person with reduced mobility departing from, arriving at or transiting through an airport to which this Regulation applies provided that the person in question fulfils the conditions set out in Article 7(1), (2) and (4)."

The judge's reasoning

13. His Honour Judge Graham Robinson sitting in the Sheffield County Court delivered an impressive and well-reasoned reserved judgment. It is sufficient for me to explain his decision by summarising the essential parts of it as follows.

(1) Mrs Campbell had a disability within section 6 of the 2010 Act.

(2) The third requirement to make reasonable adjustments contained in sections 29(7) and 20(5) of the 2010 Act was applicable here. That requirement was:

"a requirement where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled to take such steps as it is reasonable to have to take to provide the auxiliary aid."

Section 20(11) of the 2010 Act provides that this reference to an auxiliary aid includes reference to an "auxiliary service."

(3) Thomas Cook was a "service provider" within section 29 of the 2010 Act and was under a duty not to discriminate against Mrs Campbell in the provision of the service of providing her holiday and to make reasonable adjustments in respect of her by the provision of auxiliary aids such as the provision of some form of seating or seeking to facilitate her check-in procedure or both.

(4) A clear case of discrimination was made out by Mrs Campbell since Thomas Cook's staff failed to take any of the simple steps possible to prevent or reduce her suffering by asking other passengers to allow her to move to the head of the queue, finding something for her to sit on or making arrangements for her place in the queue to be saved while she sat elsewhere in the airport.

(5) Thomas Cook was therefore liable to pay damages to Mrs Campbell in respect of that unlawful discrimination which he assessed at £7,500, unless the provisions of paragraph 33(2) excluded its application.

(6) The judge had regard to chapter 13.2 of the Code of Practice on services, public functions and associations which provided that the basic presumption under the 2010 Act is "that discrimination because of protected characteristics is unlawful unless any exception applies and any exception to the prohibition of discrimination should generally be interpreted restrictively."

(7) The scheme of the Regulation is to prohibit unlawful disability discrimination by air carriers and managing bodies of airports. In the case of airports, the Regulation applies only to those situated in Member States and for air carriers it is largely directed to obligations that can be enforced in a Member State.

(8) Article 1.2 of the Regulation only applies the Regulation to airports situated in the territory of a Member State and so did not apply to Monastir Airport in Tunisia, which is outside the EU. Article 1.2 does, however, make clear that all the provisions of the Regulation apply as soon as the Claimant arrives at an airport in a Member State regardless of where she has arrived from.

(9) Article 1.3 is an inclusive provision of limited application applying only to passengers (a) departing from an airport situated in a third country (i.e. not a Member State), (b) travelling to a Member State airport and (c) being carried by a community air carrier. It has effect in this case in relation to Monastir Airport, but only makes Articles 3, 4 and 10 of the Regulation applicable.

(10) None of Articles 3, 4 and 10 applies to the situation in this case. Articles 3 and 4 do not apply to airport services. Article 10 requires the air carrier to provide the assistance in Annex II of the Regulation which relates only to matters connected with the flight itself, but "does not cover matters concerning the provision at the airport of departure or such auxiliary aids as a chair," nor does it cover the check-in procedures at the airport.

(11) In relation to an airport in a Member State, the management of disabled persons arriving at the airport is comprehensively dealt with by the obligations imposed on the managing bodies of airports under Article 7 and Annex I.

(12) Passengers arriving at an airport such as Monastir Airport are not under the control of the air carrier rather than the tour operator during the check-in procedure since Article 10 and Annex II comprehensively define the air carrier's obligations and those provisions exclude auxiliary aids in the airport and check-in procedures. The air carrier's obligations at a third country airport are limited to those specified in Article 10 and Annex II of the Regulation so that disabled passengers are not under the control of the air carrier during the check-in procedure.

(13) Thomas Cook owed duties to the Claimant under section 29 of the 2010 Act unless those obligations were displaced by the Regulation. The 2010 Act duties were only displaced in this case if Articles 3, 4 or 10 covered the relevant section 29 obligations in relation to auxiliary aids and check-in procedures at Monastir Airport which they did not.

Thomas Cook's contentions

14. In the broadest of outline, Thomas Cook contends as follows on this appeal.

(1) An EC regulation by its very nature overrides all national laws with the subject matter since it is "of general application... binding in its entirety and directly applicable in all Member States." (See Article 249 of the Treaty establishing the European Community). National legislation must, therefore, be interpreted so as to be consistent with the regulation.

(2) Since the Regulation deals comprehensively with subject matter of Mrs Campbell's complaint of unlawful discrimination, it excludes any remedy under the 2010 Act. (See Sidhu v British Airways [1997] AC 430 per Lord Hope of Craighead at page 453).

(3) The rights of disabled passengers under the Regulation when departing from third country airports are necessarily more limited than they are at a Member State airport reflecting obvious jurisdictional and enforcement limitations.

(4) If the 2010 Act could be used to supplement Mrs Campbell's rights, the efficacy of EU law would be lost.

(5) The proper construction of paragraph 33(2) of the 2010 Act reinforces the above conclusions since the word "anything" refers to "any purported unlawful discrimination" and the words "governed by [the Regulation]" must be construed so as to exclude any circumstances covered by the Regulation such as the events in this case.

The meaning of the Regulation and paragraph 33(2)

15. Before turning to the Regulation itself, it is important I think to understand what the House of Lords was saying in Sidhu supra. There the Claimants flew from Heathrow to Kuala Lumpur via Kuwait and were detained by Iraqi forces in the midst of Iraq's invasion of Kuwait. Separate claimants brought claims in England and Scotland claiming damages at common law. The House of Lords held that claims were excluded by the application of limitation and other provisions of the Warsaw Convention as amended at The Hague 1995 (contained in schedule 1 to the Carriage by Air Act 1961) which were comprehensive in respect of the issues covered.

Lord Hope said this at page 447G:

"To permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier. Thus the purpose is to ensure that, in all questions relating to the carrier's liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action."

Lord Hope continued as follows at pages 453C to G:

"I believe that the answer to the question raised in the present case is to be found in the objects and structure of the Convention. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code, which could be applied by the courts of all the High Contracting Parties without reference to the rules of their own domestic law. The Convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas with which it deals - and the liability of the carrier is one of them - the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law.

An answer to the question which leaves claimants without a remedy is not at first sight attractive. It is tempting to give way to the argument that where there is a wrong there must be a remedy. That indeed is the foundation upon which much of our own common law has been built up...

Alongside these principles, however, there lies another great principle, which is that of freedom of contract. Any person is free, unless restrained by statute, to enter into a contract with another on the basis that his liability in damages is excluded or limited if he is in breach of contract... [The Warsaw Convention] was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available. So it set out the limits of liability and the conditions under which claims to establish that liability, if disputed, were to be made. A balance was struck, in the interests of certainty and uniformity."

16. The starting point, as Lord Hope explained, is, therefore, to examine the "objects and structure of the Convention [in this case the Regulation]" and "the language used and the subject matter with which it deals."
17. The recitals to the Regulation make it clear that the Regulation is intended to ensure that the single market for air services should benefit disabled passengers equally with other citizens (recital 1). Disabled passengers should therefore be accepted for air travel (recital 2) and be assisted with their particular needs at the airport and on board an aircraft (recital 4). Recital 3 upon which Thomas Cook particularly rely simply provides that the Regulation is not to affect the other rights of passengers under other EU legislation. It says nothing about other rights under national legislation.
18. When it comes to specifics, recital 5 shows that the Regulation is concerned with assistance at airports situated in a Member State and complaints about such matters should be addressed to the regulatory body in that Member State (recital 17). Recital 19 is important because it makes clear that the objectives of the Regulation are "to ensure high and equivalent levels of protection and assistance throughout the Member States." Whilst it refers also to the need for harmonisation and proportionality, it is in respect of services throughout the Member States that these references relate.
19. The purpose and scope of the Regulation are defined by Article 1 which makes clear by Article 1.2 that it is limited to airports in a Member State. Article 1.1 on which Thomas Cook relies only defines the nature of the rules that the Regulation contains. Article 1.3 makes a limited extension to third country airports in the circumstances specified in Articles 3, 4 and 10 as the judge explained. Article 10 and Annex II limit that extension to matters concerned with the flight itself rather than the airport services. Again, as the judge said, Article 7 which covers airport and check-in services does not extend beyond airports in Member States. In these circumstances, it is hard to see how the Regulation can be thought to govern discrimination at third country airports in relation to check-in and airport services. It says nothing about such events.
20. Moreover, the argument that the Regulation overrides all national laws with the same subject matter proves too much. Of course a national law that covers the same subject matter will be overridden by a directly applicable regulation, but there is nothing to stop Member States legislating for additional duties in areas not covered by a regulation.
21. In my judgment, Sidhu supra does not help Thomas Cook in this case because the Warsaw Convention in that case was incorporated into the contract between the parties and provided the terms on which the air travel was based. That Convention was, on its true construction, intended to be uniform and exclusive of any resort to rules of domestic law. (See Lord Hope's first paragraph cited above). As Lord Hope said, it would have distorted the whole system to permit exceptions. It is much harder in this case to understand how to permit Mrs Campbell a remedy would "distort the whole system." The system concerns the EU and EU airports in particular. It says something about disability provision on aircrafts travelling from third country airports to the EU, but that is the extent of it. It can hardly reduce the efficacy of EU law for national law to make additional provisions so as to protect disabled persons travelling by air outside Member States.
22. Mr Matthew Chapman, counsel for Thomas Cook, accepted, albeit somewhat reluctantly and in the heat of forensic debate, that Mrs Campbell's claim under the 2010 Act would not be excluded if in precisely identical circumstances she had been discriminated against when seeking to check-in for a flight from Tunisia to Cairo. That concession was a necessary one since the Regulation says absolutely nothing about airport or air carrier services on flights between third countries. It would therefore be a corruption of the language of paragraph 33(2) to suggest that any aspect of the services provided in respect of such a flight was "governed by the Regulation".
23. Moreover, the Regulation cannot on any sensible analysis be said to be a complete code that relates to disability provision in respect of airport services provided outside the EU. In this case, there is nothing in the Regulation that provides that rights established by it are to exclude all rights in respect of travel at third country airports, rather the reverse. The limited provisions relating to third country airports would seem to indicate that national law would apply to those places more generally.
24. The fact that the Regulation for reasons that Thomas Cook describes as "obvious, jurisdictional and enforcement limitations" limits its ambit to airports in Member States points away from the all-encompassing nature for which it contends. Moreover, the limited provisions in Article 10 and Annex II relating to services on the aircraft are consistent with the purpose and scope of the Regulation, which is to regulate services provided in EU airports and on board flights to and from the EU.
25. I turn then to consider the proper construction of paragraph 33(2) of the 2010 Act. That, as it seems to me, is the simplest possible provision. Thomas Cook seeks to read too much into it. It means what it says, namely that section 29 does not apply to anything governed by the Regulation. Since the provision of airport and check-in services in third countries is not governed by the Regulation, paragraph 33(2) does not exclude the application of section 29 to the facts of this case.
26. For these reasons, in my judgment, the judge was entirely right for reasons he gave and I would dismiss this appeal.

LORD JUSTICE McCOMBE:

27. I agree.

LORD JUSTICE LONGMORE:

28. I also agree.