England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 February 2011

Mr Justice Supperstone :

Introduction

1. This is an appeal from the decision of HHJ Knight QC, sitting at the Central London County Court, made on 5 May 2010, striking out a claim for damages made by the Appellant, Mr Tony Hook, in proceedings he brings, by his mother and litigation friend, Gillian Hook. The Appellant suffers from mobility and learning difficulties.
2. The Appellant brings this claim pursuant to Regulation 9 of the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007, SI 2007/2895 ("the UK Regulations"). The factual background concerns a flight which the Appellant was undertaking, the outward flight being from London, Gatwick to Paphos, Cyprus on 26 July 2008 and the return flight on 10 August 2008. He complains that on both the outward and return flights the Respondent failed to make reasonable efforts to meet his seating needs contrary to Article 10 and Annex II of 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 EC Regulation"). The Appellant is a disabled person within the meaning of Article 2(a) of the EC Regulation.

The legislative framework

3. The EC Regulation provides, in so far as is material, as follows:

"Recitals

(4) In order to give disabled persons and persons with reduced mobility opportunities for air travel comparable to those of other citizens, assistance to meet their particular needs should be provided at the airport as well as on board aircraft, by employing the necessary staff and equipment. In the interests of social inclusion, the persons concerned should receive this assistance without additional charge.

…

(15) Member States should supervise and ensure compliance with this Regulation and designate an appropriate body to carry out enforcement tasks. This supervision does not affect the rights of disabled persons and persons with reduced mobility to seek legal redress from courts under national law.

(16) It is important that a disabled person or person with reduced mobility who considers that this Regulation has been infringed be able to bring the matter to the attention of the managing body of the airport or to the attention of the air carrier concerned, as the case may be. If the disabled person or person with reduced mobility cannot obtain satisfaction in such a way, he or she should be free to make a complaint to the body or bodies designated to that end by the relevant Member State.

(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.

(18) Member States should lay down penalties applicable to infringements of this Regulation and ensure that those penalties are applied. The penalties, which could include ordering payment of compensation to the person concerned should be effective, proportionate and dissuasive. …

Articles

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 the 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.

4. This Regulation shall not affect the rights of passengers established by Directive 90/314/EEC and under Regulation (EC) No.261/2004.

5. Insofar as the provisions of this Regulation conflict with those of Directive 96/67/EC, this Regulation shall prevail.

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…

One of the kinds of assistance required by Annex II is 'the making of all reasonable efforts to arrange seating to meet the needs of individuals with disability or reduced mobility on request and subject to safety requirements and availability'.

Article 14: Enforcement body and its tasks

1. Each Member State shall designate a body or bodies responsible for the enforcement of this Regulation as regards flights departing from or arriving at airports situated in its territory. Where appropriate, this body or bodies shall take the measures necessary to ensure that the rights of disabled persons and persons with reduced mobility are respected, including compliance with equality standards referred to in Article 9(1). The Member State shall inform the Commission of the body or bodies designated.

Article 15: Complaint Procedure

1. A disabled person or person with reduced mobility who considers that this Regulation has been infringed may bring the matter to the attention of the managing body of the airport or to the attention of the air carrier concerned, as the case may be.

2. If the disabled person or person with reduced mobility cannot obtain satisfaction in such way, complaints may be made to any body or bodies designated under Article 14(1), or to any other competent body designated by a Member State, about an alleged infringement of this Regulation.

3. A body in one Member State which receives a complaint concerning a matter that comes under the responsibility of a designated body of another Member State shall forward the complaint to the body of that other Member State.

4. The Member States shall take measures to inform disabled persons and persons with reduced mobility of their rights under this Regulation and of the possibility of complaints to this designated body or bodies.

Article 16: Penalties

The Member States shall lay down rules on penalties applicable to infringements of this Regulation and shall take all the measures necessary to ensure that those rules are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission and shall notify it without delay of any subsequent amendment affecting them."

4. The UK Regulations provide, in so far as is material, as follows:

"Enforcement and complaints

7(1) The Civil Aviation Authority is the designated body for the purposes of Article 14 and it and any person authorised to act on its behalf is to have access at all reasonable times to any part of an airport or aircraft for the purposes of carrying out the Authority's functions under that Article.

…

(3) … The designated body for the purposes of Article 15(2) is—

…

(b) in relation to any time after 30 September 2007, the Commission for Equality and Human Rights. …

Compensation claims by disabled persons etc.

9(1) A claim by a disabled person or a person with reduced mobility for an infringement of any of his rights under the EC Regulation may be made the subject of civil proceedings in the same way as any other claim in tort or (in Scotland) in reparation for breach of statutory duty.

(2) For the avoidance of doubt, any damages awarded in respect of any infringement of the EC Regulation may include compensation for injury to feelings whether or not they include compensation under any other head."

5. The Montreal Convention ("the Convention") provides, in so far as is material, as follows:

"Article 3 – Passengers and Baggage

… 4. The passenger shall be given written notice to the effect that where the Convention is applicable it governs and may limit the liability of carriers in respect of death or injury and for destruction or loss of, or damage to, baggage and for delay.

Article 17 – Death and Injury to Passengers – Damage to Baggage

1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Article 29 – Basis of Claims

In the carriage of passengers, baggage and cargo any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action punitive, exemplary or any other non-compensatory damages shall not be recoverable."

6. The Convention was signed by the EC on 9 December 1999 and was approved by Council decision on 5 April 2001. The Convention entered into force in the Community on 28 June 2004. The provisions of the Convention relating to the liability of air carriers were incorporated into Council Regulation (EC) No.2027/97 of 9 October 1997 on air carrier liability in the event of accidents, which was amended by Regulation (EC) No.889/2002 of the European Parliament and of the Council of 13 May 2002 ("the amending regulation").
7. The Carriage by Air Act 1961 ("the 1961 Act") provided for the application of the Convention in the UK. The 1961 Act was amended by the Carriage by Air Act (Implementation of the Montreal Convention 1999) Order 2002 SI 2002/263. By reason of section 1(2) of the 1961 Act and Article 3 of the amending regulation the liability of the Respondent, as a community air carrier, in respect of passengers and their baggage is governed by the provisions of the Convention relevant to such liability.

The decision of HHJ Knight QC

8. The learned Judge dismissed the claim for damages on, in summary, the following grounds:

i) As the operating licence of the Respondent had been granted by the UK, a Member State, it is a Community air carrier within the meaning of Council Regulation (EC) 2027/97.

ii) Accordingly the liability of the Respondent for damages claims brought by passengers is governed by the relevant provisions of the Convention.

iii) The position would be the same under English law pursuant to schedule 1B to the 1961 Act which incorporates the Convention into English law.

iv) The Convention is "exclusive" in the sense that where it does not give a passenger a remedy, it is not possible to circumvent it by relying on a non-Convention cause of action (whether at common law or otherwise).

v) The Appellant's claims for damages do not fall into any of the types of claim for which there is potential liability under the Convention.

vi) The Appellant's damages claims are therefore barred by the Convention, in particular Article 29 thereof, as interpreted by the House of Lords in Sidhu v British Airways [1997] AC 430.

Submissions

9. Mr Robin Allen QC, for the Appellant, submits that the judge erred in the decision he made because he misconstrued or disregarded the UK Regulations and the EC Regulation. The approach the judge took, he submits, is inconsistent with the clear intention of the EC Regulation since it prevents the very individual enforcement envisaged by the EC Regulation through claims for compensation.
10. Mr Allen submits that it is clear from Recital 18 that "penalties" in Article 16 can include an award of compensation. It follows, he submits, that the judge was wrong in deciding that "Penalties" is "a reference to criminal and not civil compensation" (para 18 of the judgment). For the penalties to be "effective, proportionate and dissuasive", as required by Article 16, they must be restorative and deterrent. In support of this submission Mr Allen relied on the decision of the Court of Justice in Marshall v Southampton and South West Hampshire Health Authority (Teaching) (No.2) [1993] ICR 893 and, in particular, the following paragraphs:

"23. As the court held in Von Colson v Land Nordrhein-Westfalen (Case 14/83) [1984] ECR 1891, 1907, para 18 [Article 6 of the Equal Treatment Directive) does not prescribe a specific measure to be taken in the event of a breach of the prohibition of discrimination, but leaves member states free to choose between the different solutions suitable for achieving the objective of the Directive, depending on the different situations which may arise.

24. However the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. As the court stated in the Von Colson case, at p.1908, para 23, those measures must be such as to guarantee real and effective judicial protection and have a real deterrent effect on the employer.

25. Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment shall be taken into account. In the event of discriminatory dismissal contrary to Article 5(1) of the Directive, a situation of equality could not be restored without either re-instating the victim of discrimination or, in the alternative, granting financial compensation for the loss and damage sustained.

26. Where financial compensation is the measure adopted in order to achieve the objective indicated above, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules."

(As for the importance of the concept of effective remedies in European law, see also Duncombe and Others v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1355 at [145], and Article 19 of the Treaty on European Union ("TEU")).

11. Mr Allen submits that in enacting a remedy for breach of an European law right, provision has to be made in UK law that is no less favourable than that for equivalent domestic law (see Preston v Wolverhampton Healthcare NHS Trust [2001] 2 AC 415 at [31]).
12. Mr Allen submits that there is no prohibition in the Convention in respect of claims relating to access to air travel by disabled persons; and that there is nothing to suggest that such a claim should be construed in a "like manner" as, for example, one in common law. Accordingly, he submits, there is no reason why the EC Regulation must be construed so as to exclude any application for damages based upon Article 9 of the UK Regulations in relation to air carriers. Further, he submits, there is nothing in Sidhu and Others v British Airways [1997] AC 430 that has the effect that the Appellant's application for damages should be struck out. That case, he submits, is simply concerned with the common law of negligence. It is not concerned with the application of a European Regulation and has no application to the present case. Further it was determined in 1996, prior to the Community adopting the Regulations to implement the relevant provisions of the Montreal Convention. Any matters relating to the Convention must now take European obligations into account. There have been a variety of EC Regulations concerning air travel, baggage and delays since the Sidhu decision.
13. In summary Mr Allen contends that the Convention is concerned with the liability of air carriers for "accidents" and that the EC Regulation and the UK Regulations are concerned with the liability of air carriers for discriminating against disabled persons. He submits that it is inconceivable that claims based on breaches of the EC Regulation could fall within the realm of "accidents". Thus there are no "conditions and limits of liability" which are "relevant" for the purposes of a claim based on injury to feelings and so Article 29 of the Convention does not apply.
14. In support of his submission on Article 29 of the Convention Mr Allen relies on the decision in The Queen on the application of International Air Transport Association and European Low Fares Airline Association v Department for Transport [2006] ECR 1-403 that concerned the interpretation and implementation of another EC Regulation on air transport, relating to delay. The Court of Justice said that:

"44. It is clear from Articles 19, 22 and 29 of the Montreal Convention that they merely govern the conditions under which, after a flight has been delayed, the passengers concerned may bring actions for damages by way of redress on an individual basis, that is to say for compensation, from the carriers liable for damage resulting from that delay.

45. It does not follow from these provisions, or from any other provision of the Montreal Convention, that the authors of the Convention intended to shield those carriers from any other form of intervention, in particular action which could be envisaged by the public authorities to redress, in standardised and immediate manner, the damage that is constituted by the inconvenience that delay in the carriage of passengers by air causes, without the passengers having to suffer the inconvenience inherent in the bringing of actions for damages before the courts.

46. The Montreal Convention could not therefore prevent the action taken by the Community legislature to lay down, in exercise of the powers conferred on the Community in the fields of transport and consumer protection, the conditions under which damage linked to the above mentioned inconvenience should be redressed. Since the assistance and taking care of passengers envisaged by Article 6 of Regulation No.261/2004 in the event of a long delay to a flight constitutes such standardised and immediate compensatory measures, they are not among those whose institution is regulated by the Convention. The system prescribed in Article 6 simply operates at an earlier stage than the system which results from the Montreal Convention.

47. The standardised and immediate assistance and care measures do not themselves prevent the passengers concerned, should the same delay also cause them damage conferring entitlement to compensation, from being able to bring in addition actions to redress that damage under the conditions laid down by the Montreal Convention.

48. Those measures, which enhance the protection afforded to passengers' interests and improve the conditions under which the principle of restitution is applicable to passengers, cannot therefore be considered inconsistent with the Montreal Convention."

15. Finally Mr Allen submits that should the court consider that there is any uncertainty about the interpretation of the EC Regulation this court should make a reference to the European Court of Justice. The relevant questions for the Court of Justice would, Mr Allen submits, be as follows:

"(a) May the rights given to individuals by Regulation EC No. 1107/2006 be enforced within a Member State by the award of compensatory damages including damages for injury to feelings?

(b) Is the answer to the first question in any way affected by Article 29 of the Montreal Convention?"

16. Mr John Kimbell, for the Respondent, submits that Article 9 of the UK Regulations should be interpreted in such a way as to continue to give effect to the exclusivity principle under the Montreal Convention. He agrees that the Respondent is a Community Air Carrier as its operating licence has been granted by a Member State, namely the UK. Consequently its liability in respect of passengers is governed by the relevant provisions of the Montreal Convention. Mr Kimbell adds that this is the position as a matter of directly applicable EC law, although the situation would be no different in the absence of Regulation 2027/97 as section 1 of the 1961 Act would have exactly the same result.
17. Mr Kimbell submits that the House of Lords in Sidhu determined that it is not possible to avoid the application of the Convention by reference to any cause of action not permitted by the Convention. Although there is no English authority on the point Mr Kimbell also prays in aid the decisions of senior courts in the United States and South Africa which have held that discrimination claims are barred as a result of the Convention's exclusivity. (See King v American Airlines 284F.3D352, and Potgieter v British Airways plc (2005) 2 SA 133(C)).
18. Mr Kimbell submits that the EC Regulation does not provide for the type of individual enforcement for which the Appellant contends. In his submission it does not create a private law cause of action sounding in damages. He points out that the EC Regulation does not (as European legislation sometimes does) require Member States to provide for civil liability for breaches of the EC Regulation.
19. Recital 18 recognises that the penalties imposed could include "the payment of compensation to the person concerned". However compensation payments could simply be part and parcel of the administrative regime implemented by the designated enforcement body in each Member State. Article 14 of the EC Regulation requires Member States to designate a body for the enforcement of the Regulation. Article 15 makes provision for a complaints procedure. Article 16 requires Members States to lay down rules on penalties applicable to infringements of the Regulation. Thus, Mr Kimbell submits, the EC Regulation requires Member States to establish an administrative supervision and enforcement regime to ensure that airports, tour operators and air carriers comply with their obligations under the EC Regulation.
20. Mr Kimbell submits that the Appellant's claim arises out of his international carriage by air by a Community Carrier. The Respondent's liability, if any, is therefore governed by the Convention. As Lord Hope explained in the Sidhu case, the Convention prescribes the only circumstances in which a carrier will be liable in damages to a passenger for claims arising out of his international carriage by air. There is no liability for injury to feelings under the Convention. Nor does the Claimant's complaint arise out of an accident within the meaning of Article 17 of the Convention. Accordingly, a claim under Regulation 9 of the UK Regulations for damages for injury to feelings as a result of an alleged failure by an air carrier to make reasonable efforts to meet the seating needs of a disabled passenger during a flight is caught and precluded by Article 29 of the Convention. Since 28 June 2004 the Convention has been an integral part of the European Union legal order and binding upon it (see the IATA case, supra, in particular in the Advocate General's Opinion at para 32 and Walz v Click Air SA Case C-63/09 [2010] unreported).
21. Mr Kimbell submits that the IATA decision on which Mr Allen relies, does not in fact assist the Appellant's case. In IATA the ECJ held that the measures of redress provided for by the EC Regulation are not those which are regulated by the Convention, the reason being, submits Mr Kimbell, because rights to "immediate assistance and/or a standardised lump-sum payment" are rights of an entirely different nature to and independent of claims for damages which are governed by the Convention.
22. In Mr Kimbell's submission Article 9 of the UK Regulations can and should be construed in a manner which is consistent with the Convention by "reading down" the provision in so far as it purports to allow individuals to bring a claim for damages against an air carrier in respect of loss or damage suffered by a passenger in the course of, or arising out of, their international carriage by air.
23. In Mr Kimbell's submission it is inappropriate to make a preliminary reference of any issue raised in this appeal to the ECJ for two reasons: first, the central issue in this appeal does not concern the EU Treaties or the interpretation of European legislation. It concerns the interaction of a domestic statutory instrument and an international treaty. Second, if the background European legislation is considered to be itself sufficiently in issue, the Court should exercise its discretion not to refer because this court is capable of interpreting the legislation without the assistance of the ECJ.

Discussion

24. The issue on this appeal is whether Regulation 9 of the UK Regulations creates an exception to the regime laid down in the Convention so as to provide the Appellant with a remedy in damages for injury to his feelings as a result of a failure by the Respondent to make reasonable efforts to meet his seating needs.
25. In Sidhu Lord Hope said at 447D-H:

"The reference in the opening words of article 24(2) to 'the cases covered by articles 17' does, of course, invite the question whether article 17 was intended to cover only those cases for which the carrier is liable in damages under that article. The answer to that question may indeed be said to lie at the heart of this case. In my opinion the answer to it is to be found not by an exact analysis of the particular words used but by a consideration of the whole purpose of the article. In its context the purpose seems to me to be to prescribe the circumstances—that is to say, the only circumstances—in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air.

The phrase 'the cases covered by article 17' extends therefore to all claims made by the passenger against the carrier arising out of international carriage by air, other than claims for damage to his registered baggage which must be dealt with under article 18 and claims for delay which must be dealt with under article 19. The words 'however founded' which appear in article 24(1) and are applied to passenger's claims by article 24(2) support this approach. The intention seems to be to provide a secure regime, within which the restriction on the carrier's freedom of contract is to operate. Benefits are given to the passenger in return, but only in clearly defined circumstances to which the limits of liability set out by the Convention are to apply. 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."

26. A similar approach to the Convention has been adopted by courts in the United States. In El Al Israel Airlines Ltd v Tsui Yuan Tseng 525US155(1999) the US Supreme Court referred to the decisions of the courts of other Warsaw Convention signatories, including the House of Lords in Sidhu, and concluded that they corroborated the Court's understanding of the Convention's pre-emptive effect. Ginsburg J, delivering the opinion of the Court, said at 169:

"The cardinal purpose of the Warsaw Convention, we have observed, is to 'achieve uniformity of rules governing claims arising from international air transportation'. Floyd, 499US, at 552; see Zicherman, 516US, at 230."

Ginsburg J concluded at 176:

"For the reasons stated, we hold that the Warsaw Convention precludes a passenger from maintaining an action for personal injury damages under local law when her claim does not satisfy the conditions for liability under the Convention."

27. In the more recent case of King v American Airlines the US Court of Appeals for the Second Circuit dismissed a claim by a black passenger who claimed to have been "bumped" off a flight on account of his race. Circuit Judge Sotomayor, delivering the judgment of the court, having referred to the description in El Al Israel Airlines Ltd v Tseng as to "the cardinal purpose of the Warsaw Convention", said as follows:

[4] [5] "To this end, the Warsaw Convention created a comprehensive liability system to serve as the exclusive mechanism for remedying injuries suffered in the course of the 'international transportation of persons, baggage, or goods performed by aircraft'. Warsaw Convention, Art.1; see also Tseng… This remedial system is designed to protect air carriers against catastrophic, crippling liability by establishing monetary caps on awards and restricting the types of claims that may be brought against carriers, while accommodating the interests of injured passengers by creating a presumption of liability against the carrier when a claim satisfies the substantive requirements of the Convention. Tseng …; see also Sidhu v British Airways plc …"

"[6] Uniformity requires however, that passengers be denied access to the profusion of remedies that may exist under the laws of a particular country, so that they must bring their claims under the terms of the Convention or not at all. … Recognising this, the Supreme Court in Tseng held that the Convention's pre-emptive effect on local law extends to all causes of action for injuries to persons or baggage suffered in the course of international airline transportation, regardless of whether a claim actually could be maintained under the provisions of the Convention…

The Kings resist this conclusion. They would have us distinguish between civil rights claims and actions sounding in tort, and hold that the latter fall within the ambit of the Warsaw Convention while the former do not. In support of their position, Appellants cite to language from Tseng that sets forth the outer boundaries of the Convention's coverage: '[T]he Convention's pre-emptive effect on local law extends no further than the Convention's own substantive scope.' … Discrimination, the Plaintiffs claim, is not within the 'substantive scope' of the Convention. …

… Were we to adopt the Kings interpretation, we would eviscerate the uniformity that is the animating purpose behind the Convention, as claimants would be able to make similar arguments about any type of injury that can be sustained on board an aircraft.

…

[14] [15] Plaintiffs raise the spectre that our decision will open the doors to blatant discrimination aboard international flights, invoking images of airline passengers segregated according to race and without legal recourse. They suggest that, despite Article 24's plain mandate that the Warsaw Convention pre-empts 'any cause of action, however founded', we should nonetheless carve out an exception for civil rights actions as a matter of policy. This we decline to do. '[I]t is our responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties… It is not for the courts to re-write the terms of a treaty between sovereign nations…'

Moreover, while private suits are an important vehicle for enforcing the anti-discrimination laws, they are hardly the only means of preventing discrimination on board aircraft. Federal law provides other remedies. Responsibility for oversight of the airline industry has been entrusted to the Secretary of Transportation. The Kings could, therefore, have filed a complaint with the Secretary. … The FAA prohibits air carriers, including foreign air carriers, from subjecting a person to 'unreasonable discrimination'. … The Secretary has the authority to address violations of FAA provisions, including the power to file civil actions to enforce Federal law… It does not follow from the pre-emption of the Kings' private cause of action that air carriers will have free rein to discriminate against passengers during the course of an international flight."

For similar reasons in Potgieter v British Airways plc the High Court of South Africa held that a claim for discrimination on grounds of sexual orientation was excluded by the Warsaw Convention.

28. Mr Allen submits that an international treaty cannot overrule fundamental Union law rights. (See Ahmed v Treasury [2010] 2 AC 534, per Lord Hope at [67]-[68]). Thus, he submits, that the judgments in Tseng and in Sidhu simply do not engage with the issue which is at the heart of the present case. I reject this submission. Neither Mr Allen nor Mr Kimbell have referred me to any authority from any jurisdiction which suggests that claims for damages based on fundamental or constitutional rights are an exception to the exclusivity principle that the House of Lords identified in Sidhu and the Supreme Court accepted in Tseng. Moreover, as Mr Kimbell observes, Mr Allen did not suggest that the outcome in King or Potgeiter would have been different if it had been argued in those cases that the interpretation of the Convention advanced by the carriers amounted to a denial of the claimants' fundamental or constitutional rights.
29. Furthermore the nature and scope of the exclusivity principle was firmly established before the EU ratified the Convention. In Wallentin-Herman v Alitalia [2009] 2 CMLR 9 at para 28 the Court of Justice said that the Convention:

"…forms an integral part of the Community legal order. Moreover, it is clear from Art.300(7)EC that the Community institutions are bound by agreements concluded by the Community and, consequently that those agreements have primacy over secondary Community legislation (see Emirates Airlines Direktion Für Deutschland v Schenkel (C-173-07) [2008] 3 CMLR 20 at [43]."

30. Regulation (EC)2027/97 (as amended by Regulation (EC)889/2002) expressly provides that the liability of Community air carriers in respect of passengers is to be governed by the Convention. There is no liability for injury to feelings under the Convention. The EC Regulation does not expressly authorise Member States to allow individuals to bring claims for damages against air carriers. It certainly does not give such authorisation in circumstances where such claims are barred by the Convention. Mr Kimbell submits, and I agree, the fact that Recital 18 of the EC Regulation recognises that the penalties imposed may include "the payment of compensation to the persons concerned" does not suggest that the EC legislature authorised Member States to create a private law cause of action sounding in damages.
31. In my view the IATA decision on which Mr Allen relies does not assist the Appellant. The Court of Justice explained its reasoning in the following terms:

"44. It is clear from Articles 19, 22 and 29 of the Montreal Convention that they merely govern the conditions under which, after a flight has been delayed, the passengers concerned may bring actions for damages by way of redress on an individual basis, that is to say for compensation, from the carriers liable for damage resulting from that delay.

45. It does not follow from these provisions, or from any other provision of the Montreal Convention, that the authors of the Convention intended to shield those carriers from any other form of intervention, in particular action which could be envisaged by the public authorities to redress, in a standardised and immediate manner, the damage that is constituted by the inconvenience that delay in the carriage of passengers by air causes, without the passengers having to suffer the inconvenience inherent in the bringing of actions for damages before the courts.

46. The Montreal Convention could not therefore prevent the action taken by the Community legislature to lay down, in exercise of the powers conferred on the Community in the fields of transport and consumer protection, the conditions under which damage linked to the above mentioned inconvenience should be redressed. …

47. The standardised and immediate assistance and care measures do not themselves prevent the passengers concerned, should the same delay also cause them damage conferring entitlement to compensation, from being able to bring in addition actions to redress that damage under the conditions laid down by the Montreal Convention.

48. Those measures, which enhance the protection afforded to passengers' interests and improve the conditions under which the principle of restitution is applicable to passengers, cannot therefore be considered inconsistent with the Montreal Convention."

(See also Wallentin-Hermann v Alitalia at para 32; and Rehder v Air Baltic [2010] Bus LR 549 at para 27).

32. Accordingly, in my view, the IATA case provides no support for the proposition that the EC Regulation creates a private law cause of action sounding in damages; nor does the IATA case assist the Appellant with its construction of Article 9 of the UK Regulations. The rights which Article 9 purport to confer are not "standardised and immediate assistance and care measures" (para 47); they purport to create a private law cause of action sounding in damages.
33. The UK Regulations establish a comprehensive administrative enforcement regime which is operated by the Civil Aviation Authority. Regulation 7 of the UK Regulations provides at the domestic level what is required by Articles 14 and 15 of the EC Regulation. In my view Mr Kimbell is correct in his submission that compensation payments may be an aspect of the administrative regime implemented by the enforcement body in a Member State.
34. Finally I turn to the principle of equivalence. Mr Allen submits that the statement of principle set out by the Court of Justice in the ruling in Pacquay v Société d'Architectes Hoet & Minne SPRL [2008] ICR 420 (and see paras 10 and 11 above) means that rights under the EC Regulation must be afforded the same protection in the UK as rights in relation to disability or other kinds of discrimination which are protected in the UK as a result of Union law. In my view the Respondent's case that Regulation 9 of the UK Regulations must be read in such a way as to uphold the exclusivity of the Convention does not entail a breach of the principle of equivalence. The reason for this is quite simple. If Mr Kimbell is correct in his submission then all discrimination claims (whether sex, race, gender or age) arising out of, or in the course of, carriage by air are "pre-empted" by the Convention. The exclusivity principle adopted by the House of Lords in Sidhu and the Supreme Court in Tseng require discrimination claims as a class to be treated in the same way. The Convention, as an international treaty, has to be interpreted so as to achieve international comity wherever possible (see Re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495, per Lord Mance at [55], and Morris v KLM [2002] 2 AC 628, per Lord Mackay at [7]).

Summary

35. In my judgment it is clear from the decision of the House of Lords in Sidhu there are no exceptions to the exclusivity of the Convention. The EC Regulation does not override the Convention and Regulation 9 of the UK Regulations must be read to accord with the EC Regulation. There is no breach of the principle of equivalence. Neither the EC Regulation nor Regulation 9 of the UK Regulations create a private law cause of action sounding in damages. The Appellant may invoke the administrative enforcement regime which is operated by the Civil Aviation Authority. In addition the Appellant may seek a declaration, as he has done, and also injunctive relief. These are private law remedies which fall outside the remit of Article 29 of the Convention. There was no application made by the Respondent to strike out the Appellant's claim for a declaration in the present case.
36. In my view the proper interpretation of the material parts of the EC Regulation and the UK Regulations are clear and there is no basis for a reference to the ECJ.

Conclusion

37. For the reasons set out above, this appeal fails.