Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

2015SCEDIN64

 

SA902/15

SUMMARY CAUSE

 

JUDGMENT OF SHERIFF T WELSH QC

 

in causa

 

(FIRST) NIALL CALDWELL,
(SECOND) AILEEN MCLUCKIE

 

Pursuers;

 

Against

 

EASYJET AIRLINE COMPANY LIMITED

 

Defender:

 

Pursuers:   Party

Alt:   Vaughan;  Kennedys, Edinburgh

 

Edinburgh 15 October 2015

The issue
[1]        The pursuers booked a holiday in Sicily during the first two weeks of September, 2014.  On their return trip, they aver they were denied boarding to their pre-booked return flight and effectively abandoned by Easyjet, their carrier, in Catania Airport, to make their own flight arrangements, to return to the UK.  The defender refutes that suggestion and contests that this is a genuine case of “denied boarding”, as that term is understood in European aviation law.  Instead, the defender asserts the pursuers were simply late for their flight and missed it.  That was their fault and not the responsibility of the carrier.  The pursuers initially raised this action only seeking damages at common law for breach of contract, having, they asserted, been required to pay for an alternative carrier to return them to the UK as a direct consequence of the defender’s breach of contract.  Separately, the pursuers then amended their small claim to incorporate a further claim for compensation in terms of Article 4(3) of Regulation (EC) No 261/2004, for having been “denied boarding” against their will by the defender at Catania.  During the course of final submissions the pursuers sought reimbursement of the cost of their missed flight, as well.  By the close of final submissions there were three heads of claim, (1) damages for breach of contract (£869.77) (2) compensation for breach of Article 4(3) of Regulation No 261/2004 (800 Euros) and (3) reimbursement for breach of Article 8(1)(a) of Regulation No 261/2004 (£407.98).

 

The procedure 
[2]        On 7 August 2015 the case called before me as a small claim for a debate on jurisdiction.  The pursuers are party litigants.  Following argument, I was satisfied the court was seized of jurisdiction in terms of the Montreal Convention for International Carriage by Air 1999 and continued the case for proof of fact to 30 September 2015.  At that diet, on their unopposed motion I allowed the pursuers to amend the sum sued for to £1456.39, to include the EU Regulation No 261/2004 case and remitted the cause, ex proprio motu, to the summary cause roll, in terms of section 37.2B of the Sheriff Courts (Scotland) Act 1971, given the variety and complexity of the issues raised. 

 

The facts

[3]        Although not bound so to do in a summary cause process, I will set out the facts I found established, after proof, to give context and meaning to this decision.

i.          The pursuers are Niall Caldwell and Aileen McLuckie, spouses, who reside in Edinburgh. The defender is a well-known, low budget, air carrier, based in Luton. Niall Caldwell is 42 years old. He is the Managing Director of an engineering business. He has a BSc in Mechanical Engineering and a PhD in advanced hydraulics.

ii.         The pursuers decided to go to Sicily for their 2014 summer holiday. On 13^th August 2014 they booked a bespoke holiday package through Morningside Travel Agents, Edinburgh. The holiday comprised flights via London (Gatwick) to and from Sicily, car hire on the island and a variety of hotel accommodation for their touring holiday.

iii.        Morningside Travel engaged another agent, Prestige Holidays based in Ringwood Hampshire, which made confirmed reservations on 4 flights for the pursuers on the defender’s aircraft, departing and returning to Edinburgh. These were:

a.    30 August 2014, flight EZY 814 – Edinburgh to London Gatwick, leaving at 20.35 arriving at 22.05.

b.    31 August 2014, flight EZY 8565 – London, Gatwick to Catania Sicily, leaving at 07.00.

c.    14 September 2014, flight EZY 8566 – Catania, Sicily to London Gatwick, leaving at 11.35 and arriving in London, Gatwick at 13.50

d.   14 September 2014, flight EZY 811 - London Gatwick to Edinburgh, leaving at 18.30 and arriving Edinburgh 19.55.

iv.        On the final day of their holiday, 14^th September at 09.26, the pursuers arrived at Catania airport to drop off their hire car. By 09.35 they were inside the terminal building for their 11.35 flight. They already had their boarding passes, which had been pre-issued to them by Morningside Travel in Edinburgh. These were, EN255DT/S538 in the name Caldwell Niall 800684928(P) and EN255DT/S537 in the name McLuckie Aileen 522276417(P). They had hold luggage to drop-off. Both boarding passes indicated their gate closed at 11.05. The tickets for this leg of the return flight cost £203.99 each. [£407.98 in total]. The pursuers had made a single check-in, in advance, for directly connecting flights and were issued with all boarding passes by their travel agent for an international contract of carriage by air, from Edinburgh on 30^th August 2014, arriving at their outward destination on 31^st August 2014 and returning to Edinburgh on 14^th September 2014.

v.         The pursuers quickly located the Easyjet bag-drop/check-in desks. There was a very long queue. It was over 100m long and snaked around the terminal with no barriers in place. The check-in desks opened at 09.35. There were 3 Easyjet staff checking in passengers and accepting luggage. 5 desks were unstaffed. The pursuers soon became concerned they might be late for their flight. The queue was moving very slowly. There were passengers for 4 Easyjet flights, queuing to use the same desks, to check-in/bag-drop. These were:

a.    Paris at 11.05;

b.    London, Gatwick at 11.35;

c.    Manchester at 12.10 and

d.   London, Luton at 12.25

vi.        After 30 minutes wait and little progress, Niall Caldwell walked to the head of the queue and asked Easyjet staff to prioritise the queue to allow those passengers on the earliest flights through first. This request was refused. The pursuers then asked other passengers if they could go to the front of the queue. The passengers refused. With no triage or prioritisation of the queue the pursuers waited until 10.26 when their bags were accepted by Easyjet for transport. Still concerned they would be late for their flight, the pursuers asked Easyjet staff if they could be prioritised through the airport security check. This request was refused and they were told to join the queue like everyone else.

vii.       The pursuers joined the queue for security screening. This was another snaked single line with a separate overflow line for families with children only. The pursuers remained very concerned they would not make their flight. Niall Caldwell contacted the Easyjet ground staff again and was told Easyjet had no control over the security queue. He was told it was his responsibility to reach the departure gate on time. He then approached airport security staff who indicated the security queue could only be prioritised, if Easyjet requested it. Easyjet had not done so. Accordingly, there was only one queue unless you had children, in which case, there was the families queue.

viii.      Eventually the pursuers were allowed to join the families queue but it was slow, as well. Niall Caldwell took a photograph of the queue on his mobile phone at 11.07.

ix.        At 11.25 the pursuers got through security screening and ran to passport control which they cleared in less than 10 minutes. At 11.35 the pursuers reached the departure gate for their flight EZY 8566 and were informed the flight had left and their baggage had been unloaded. No help or assistance was offered by ground staff.  The pursuers were directed to lost luggage to retrieve their bags. The pursuers were now stranded on Sicily.

x.         The pursuers returned to the main terminal and spoke to Easyjet staff. They were informed there were no other flights to the UK until 16^th and 17^th September 2015. The pursuers were told they would have to pay to travel on these, with Easyjet. The pursuers were advised that Al Italia had no flights leaving the island that day. However, the pursuers discovered British Airways had 2 seats available for sale on BA 2593 to London Gatwick, that day, at 13.55.  Because of the experience they had just had the pursuers were concerned about missing that flight as well but BA staff guaranteed they would get through security on time.

xi.        At 12.54 the pursuers purchased two seats on BA 2593 for 1139.18 Euros (£869.77). This was more than double the cost of the flights they had just missed. A BA representative accompanied the pursuers through airport security and made sure they got to the departure gate, in time, for their new flight.

xii.       The pursuers reached London Gatwick at 16.05, in time to re-join their original itinerary and their 18.30 onward EZY 811 flight, with Easyjet, to Edinburgh, their destination that day.

xiii.      Of the 180 passengers who were booked on flight EZY 8566 – Catania, Sicily to London Gatwick, at 11.35, on 14^th September 2014, 168 actually flew. The distance from Catania to Gatwick is 1944km (1208 miles).

xiv.      Clause 6.1 of the conditions of the contract between the parties provides “We offer fares that are generally non-refundable except as provided in these Terms and Conditions. All refunds will be subject to the applicable laws, rules and regulations of England and Wales, as well as all European Community Regulations (including but not limited to Regulation (EC) No 261/2004). Refunds will normally be made in the currency in which the Booking was paid, unless otherwise agreed by easyJet.”

xv.       Clause 7.5 of the conditions of the contract between the parties provides, “Fare non-refundable. The Fare will be payable by You if You fail to take Your Flight for which a Booking has been made, except as provided in Article 6 (Refunds and Cancellation Fees) and Article 15 (Delays, Cancellation and Denied Boarding).”

xvi.      Clause 12.2.1 of the conditions of the contract between the parties provides, “You must arrive at the airport sufficiently in advance of the scheduled Flight departure time to permit completion of Government formalities and security procedures. Government formalities and security procedures may vary at different airports and for particular Flights. It is Your responsibility to ensure that You comply with these formalities and procedures, details of which will be available at the time Your booking is made.”

xvii.     Clause 12.4.1 of the conditions of contract between the parties provides, “Please note: You must present Yourself at the boarding gate no later than 30 minutes prior to scheduled time of departure or You may not be accepted for travel, and will forfeit Your seat even if You have purchased easyJet Flexi, Extra Legroom or Up Front seats, or if you are an easyJet Plus! Cardholder where Speedy Boarding applies. It is recommended that You present Yourself at the boarding gate ready for boarding no later than 40 minutes before the scheduled departure time of Your Flight.“

xviii.    Clause 12.4.3 of the conditions of contract between the parties provides, “If You present Yourself at the boarding gate outside the time restrictions outlined in this Article 12 (Online Check-in and Airport Procedures), or You are improperly documented and not ready to travel, We may refuse to carry You and You will forfeit Your seat and any right to compensation, subject to any passenger rights pursuant to any international or domestic laws or regulations to the contrary.”

xix.      Clause 15.2 of the conditions of the contract between the parties provides, “Changes of Schedules, Cancellation, Delay and Denied Boarding. At any time after a Booking has been made, We may change Our schedules and/or cancel, terminate, divert, postpone, deny boarding or delay any Flight where We consider this to be justified by circumstances beyond Our control or for reasons of safety. The provisions governing cancellations, delays and denied boarding are set out in the Convention and where applicable Regulation (EC) 261/2004.”

 

Jurisdiction

Defender

[4]        Mr Vaughan, for the defender, lodged an incidental application challenging the jurisdiction of the court to hear the claim based on damages for breach of contract.  I heard a debate on this matter on 7 August 2015.  Mr Vaughan reminded me that in terms of Rule 21.1 of the Small Claims Rules 2002, the Sheriff must not grant decree “unless satisfied that a ground of jurisdiction exists.”  He submitted that there exists no basis on which the court could be so satisfied, in this case.  He stated that the pursuers claim jurisdiction on the basis their contract is a consumer contract.  However, I did note the small claims summons states the defender has a place of business at Edinburgh Airport and jurisdiction is founded on that basis.  Be that as it may, Mr Vaughan accepted that, on the face of it, the contract between the parties is a contract governed by rule 3(1) of schedule 8 to the Civil Jurisdiction and Judgments Act 1982 , namely, a consumer contract.  He maintained, rule 3(2) provides a specific exception for carriage unless it is a “package holiday”. Rule 3(1) provides:

“This rule shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation”.

 

As the defender supplied flights only in their contract with the pursuers, Mr Vaughan argued, the exception applies. Instead, he asserted, jurisdiction in respect of international air carriage is entirely regulated by the Montreal Convention for International Carriage by Air 1999 which was ratified by the United Kingdom on 29 April 2004 and given the force of law in the United Kingdom on 28 June 2004 by the Carriage by Air Act 1961, s.1 and schedule 1B as amended by the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002 (SI 2002/263). In all cases of international carriage by air, the pursuers must bring their claim within the confines and the terms of the Montreal Convention, or not at all. Under the Montreal Convention, he said, so far as relevant, jurisdiction is dealt with in Article 33 (1) which provides:

“An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.”

 

According to Mr Vaughan, the defender’s domicile and principal place of business is in Luton, England and the contract for carriage concluded in this case was done online on servers used by Prestige Holidays, the pursuers’ agents and the defender, which are also located in England.  The only possible basis for jurisdiction in Edinburgh Sheriff Court, he said, is the fact that Edinburgh may arguably be said to be the place of destination of the contract for carriage and accordingly jurisdiction may rest on that basis.  However, he argued there are, in fact, in this case, 8 different severable contracts for international carriage by air with four separate destinations.  The relevant contracts sued on are the two for carriage between Catania, Sicily and Gatwick, London on 14 September 2014.  He cited Shawcross & Beaumont (page 438, para 440) for authority for the proposition that normally the place of destination will be the place where the ticket indicates. In this case he argued the destination on the relevant boarding passes was Gatwick, London.  Therefore jurisdiction rested with a court in England.  Further he sought to derive support for this view from an Australian case Gulf Air Co GSC v Fattouh [2008] NSWCA 225.  In that case a round trip contract of carriage was from Beirut to Bahrain to Sydney to Bahrain to Beirut.  The case was raised in New South Wales, Australia, the pursuer claiming jurisdiction under the place of destination being Sydney, Australia.  The Australian Court of Appeal held that the place of destination was Beirut, this also being the place of departure.  This was seen by the court as being one contract of carriage from Beirut back to Beirut.  The court held that the destination on the ticket constituted prima facie evidence there was nothing to rebut or vary this.  However, Mr Vaughan alluded to the fact the defender runs a “ticketless airline” but asserted the eight legs of travel in this case were all separate and distinct, independent and unconnected contracts.  Given the nature of being a “budget airline”, the defender, he said, does not sell connecting flights but individual flights with an individual cost attached.  The purpose of keeping each ticket separate is so that the flights do not become dependent upon each other.  For instance, the pursuers could have boarded their flight to Catania from Gatwick without first having checked in, at Edinburgh.  The aim, he said, was flexibility for the passenger.  I was also referred to a United States case, Butz v British Airways 421 F Supp 127(ED Pa, 1976) which I thought was somewhat against the defender.  That case involved a claim resulting from a return flight from London to New York.  The matter was raised as a claim under the Warsaw Convention which was the predecessor to the Montreal Convention.  In Butz, District Judge McGlynn (at pages 2 and 5) in rejecting the claim that the US court had jurisdiction stated that

“Because [the] ticket was purchased in London for a round trip London to New York to London I conclude that the terms of the Warsaw Convention preclude this court from exercising subject matter over [the] claim………it is my conclusion that there is only one place of destination for Warsaw Convention purposes which in this case was London. I cannot accept plaintiff’s contention that each place where a particular flight terminated is a ‘place of destination’ since the application of the convention would vary with each segment of the entire journey. This, of course, would defeat a major goal of the High Contracting Parties for there would be no uniformity with respect to a single ticket.”

 

Notwithstanding that, Mr Vaughan invited me to repel jurisdiction and dismiss the case.

 

Pursuer
[5]        Clearly Mr Caldwell who represented both he and his wife at the hearing was anxious that the case be heard in his local court.  He indicated the defender had a place of business at Edinburgh Airport and said jurisdiction was based on that.  Mr Caldwell refuted all the arguments put forward by the defender seeking to challenge jurisdiction and took issue with all the points made by Mr Vaughan.  Many of the observations made by Mr Caldwell inform the nature of my decision on jurisdiction.  Mr Caldwell referred me to two cases he had found on the internet.  Germán Rodríguez Cachafeiro and María de los Reyes Martínez-Reboredo Varela-Villamor v Iberia, Líneas Aéreas de España SA. EU:  Case C-321/11 Celex No. 611CJ0321, 4 October 2012 and the opinion of Advocate General Bot delivered on 19 April 2012, in a reference for a preliminary ruling from the Finnish Korkein oikeus,  Finnair Oyj v Timy Lassooy, EU: Case C-22/11 Celex No. 611CC0022.

 

Decision on jurisdiction.
[6]        I accepted Mr Vaughan’s argument that a contract for international carriage by air, flight only, is excluded from the definition of a consumer contract in terms of rule 3(1) of schedule 8 to the Civil Jurisdiction and Judgments Act 1982 and that jurisdiction in the matter of damages, if this court has it, must be based on Article 33(1) of the Montreal Convention 1999.  The law of the UK is that the Montreal Convention, as set out in the Schedule 1B to the Carriage by Air Act 1961, provides the exclusive basis of jurisdiction, cause of action and sole remedy for a passenger who claims against a carrier for loss, injury and damage sustained in the course of, or arising out of, international carriage by air.  The Convention is effectively a self-contained code, as set out in the speech of Lord Hope of Craighead, in the well-known case of Sidhu and Others Appellants v British Airways Plc. Respondents; Abnett (known As Sykes) Appellant v Same Respondents [1997] AC 430. 

[7]        Article 29 of the Convention restricts the basis of all claims for damages arising from international air carriage to the terms of the Convention and provides,

“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.”

 

Accordingly, in my opinion, the Montreal Convention is the sole regulatory instrument which governs all claims for damages arising out of international air carriage in the UK.

[8]        With regard to jurisdiction, Article 33 of the Convention affords a pursuer the option to raise proceedings, either, in the court of the carrier’s domicile or its principal place of business, which in my view would, both, be in England, in this case.  Equally, the Article provides that an action for damages can be raised in the place where the contract was constituted, which in this instance, again, was likely to be in England, using servers online, between Prestige Holidays, the pursuer’s agent in Hampshire and the defender, in Luton. However, in relation to the remaining potential ground of jurisdiction, in my opinion, Edinburgh, not Gatwick, as suggested by Mr Vaughan, was the place of destination of the contract for carriage between the parties and jurisdiction is established on that basis. I take that view for the following reasons.  The flights sold and the contract concluded involved a return trip, beginning and ending in the passengers’ home city of Edinburgh.  There was a single check-in in advance of departure and boarding passes were issued by the carrier for all directly connecting flights.  In between flights, there was a holiday in Sicily, which is contractually unconnected, and one overnight stay in Gatwick on the outward journey, again contractually unconnected.  The first leg of the return flight from Catania directly connected to the final flight home, for the pursuers.  The homeward journey from Sicily was intended to begin on the morning of 14 September and end that evening, at the home destination of the pursuers, Edinburgh, without overnight interruption.  Granted, the outward journey was interrupted by a short necessary overnight hotel stay at Gatwick airport, en route, to Catania but that, in my view, is immaterial to the present claim.  The contracted arrival time on 14 September 2014 in Gatwick London, had the pursuers been on their scheduled Easyjet flight EZY 8566 was 13.50 (BST), after which time, they would simply be waiting in the airport for their connection to Edinburgh, on flight EZY 811, at 18.30.  In Gatwick airport, they had not reached their destination, nor could they reasonably be said to have done so.  They would still have been in transit.  Accordingly, in my opinion, the return journey, place of destination, on 14 September 2014, was Edinburgh.  For that reason, this court is seized of jurisdiction in terms of Article 33(1) of the Montreal Convention 1999.  I do not consider that the defender’s practice of not issuing tickets has any bearing on the place of destination of the contract of carriage, on the 14 September 2014.  Nor do I think that any other reasonable interpretation of the agreement between the parties can withstand proper scrutiny, than that the defender agreed to carry the pursuers to their place of destination on 14 September 2014, in two stages, which was Edinburgh via Gatwick Airport, London.  This journey was part of a single contract of international carriage by air for two passengers, the pursuers, from Edinburgh to Catania and back, via Gatwick, London.  It was a return trip.

[9]        I think it highly fanciful to suggest that the journey from Catania to Edinburgh involved four separate contracts rather than comprising two stages of the return journey, which was part of the round trip from Edinburgh to Catania, which was part of a single contract between the parties.  It is said treating the stages of the overall journey as separate severable contracts maximises passenger flexibility.  However, I do not understand what flexible benefit that analysis, practically affords, the pursuers in this case, as I do not understand how the pursuers could flexibly have joined their Edinburgh flight that evening, other than by boarding a connecting aircraft at Catania, that morning, given the distance involved.  Realistically the flights were connected.  The defender’s argument that the contracts for carriage between the UK and Sicily were not connected, as part of a return journey, or that the agreed destination on 14 September was only Gatwick is unconvincing when analysed within the factual matrix of the case which clearly discloses the flight component of the pursuers’ contract with the defender was obviously a return journey, in the context of a holiday; from Edinburgh, via Gatwick, to Catania and back.  I consider the reasoning in the cases of Gulf Air Co GSC v Fattouh and Butz v British Airways supports the conclusion that Edinburgh is the place of departure and destination agreed between the parties.  A commercial practice of the defender not to issue conventional tickets clearly showing the agreed termini in an international contract for passenger transport does not alter my conclusion, which is based on a consideration of all the facts averred in the case and the documents lodged by the pursuers.  

[10]      Following my ruling on jurisdiction, no consequential issue was raised by the defender that the court lacks jurisdiction to hear the claim added by amendment which includes the claims for compensation and ultimately reimbursement, as argued for at the proof, in terms of Article 4, Article 7 and Article 8 of Regulation No 261/2004.  The tension between the Montreal Convention and Regulation No 261/2004 has been the subject of considerable litigation. I consider Article 4 claims and the remedies available to persons “denied boarding” (a concept not found in the Montreal Convention) to be very closely connected to Regulation No 261/2004, Article 5 and Article 6 claims, for cancellation and flight delay.  With regard to the distinction and difference between the scope of the Montreal Convention and  Regulation 261/2004, I found very persuasive authority in Dawson v Thomson Airways Ltd [2014] EWCA Civ 845, a case dealing with flight cancellation, which held that the question whether claims for fixed compensation under Article 7 of Regulation No 261/2004 fell within the scope of the Montreal Convention concerned an aspect of the Community legal order and so is to be determined in accordance with the principles laid down by any relevant decision of the Court of Justice of the European Union;  and that, therefore, the English courts were bound to follow and apply the Court of Justice's ruling that the obligation to pay compensation under Article 7 of Regulation No 261/2004 lay outside the scope of the Montreal Convention under reference to R (International Air Transport Association) v Department for Transport (Case C-344/04) [2006] ECR I-403, ECJ , Sturgeon v Condor Flugdienst GmbH (Joined Cases C-402/07 and C-432/07) [2010] Bus LR 1206, ECJ , Nelson v Deutsche Lufthansa AG (Joined Cases C-581/10 and C-629/10) [2013] 1 All ER (Comm) 385, ECJ and Cuadrench Moré v Koninklijke Luchtvaart Maatschappij NV (Case C-139/11) [2013] 2 All ER (Comm) 1152, ECJ.  The Moré case specifically decided that the Montreal Convention 1999, which is also incorporated into European Union law by Decision 2001/539 and entered into force, so far as the European Union is concerned, on June 28, 2004, stands apart from the compensatory regime created by Regulation No 261/2004.  It held,

“…… Regulation 261/2004 establishes a system to redress, in a standardised and immediate manner, the damage that is constituted by the inconvenience that delay and cancellations to flights cause, which operates at an earlier stage than the Montreal Convention and, consequently, is independent of the system stemming from that convention”.

 

[11]      For completeness I cite the dictum of Moore-Bick LJ in Dawson who said:  

“24. In my view, therefore, we are bound to follow and apply the decisions of the European Court of Justice in relation to the nature of the claim for compensation under Article 7 and its compatibility with the Montreal Convention. That includes the court's ruling that the obligation in question lies outside the scope of the Convention. If that be correct, the Convention has no application to it. In so far as it is said that that involves a departure from Sidhu v British Airways plc [1997] AC 430 , it is no more than a consequence of the decisions in R (International Air Transport Association) v Department for Transport [2006] ECR I-403 , Sturgeon v Condor Flugdienst GmbH [2010] Bus LR 1206 , Nelson v Deutsche Lufthansa AG [2013] 1 All ER (Comm) 385 and Cuadrench Moré v Koninklijke Luchtvaart Maatschappij NV [2013] 2 All ER (Comm) 1152 . The European Court of Justice has ruled on the nature of the obligations created by Regulation No 261/2004 and its decisions have to be taken into account when deciding whether the claim falls within the scope of the Convention.”

 

[12]      I am accordingly of the view that the regulatory regimes created by the Montreal Convention and the Regulation 261/2004 are both quite distinct and separate.  That view is consistent with the approaches taken by SP Lockhart in Vergara v Ryanair Ltd 2014 S.L.T. (Sh Ct) 119 and SP Scott in Terence Weir & Thomas Barrie v Ryanair 22 January 2014, (unreported), in deciding a question relating to the limitation of claims for compensation made more than two years after flight cancellation.  The Montreal Convention has a two year time bar but Regulation 261/2004 does not. Both Scottish cases held that Regulation No 261/2004 and not the Montreal Convention ruled with regard to time-bar of compensation claims, which were legally different in nature from damages claims.  Any claim for damages is regulated by the Montreal Convention 1999.  Compensation falls to be assessed under the Regulation 261/2004. 

[13]      Accordingly, in so far as the present case relates to compensation and reimbursement, as distinct from a claim for damages, I consider myself to be under an obligation to follow and apply the relevant Court of Justice of the European Union jurisprudence, in relation to Regulation No 261/2004 in respect of Article 4 “denied boarding”, Article 7 compensation and Article 8 reimbursement cases.  Also, I consider myself in the same position as the first instance judge in Dawson v Thomson Airways Ltd and bound under section 3 of the European Communities Act 1972, to apply such relevant principles as are laid down by the European Court of Justice, in respect of Regulation No 261/2004.

 

The proof

The pursuer – (this note is not intended to be comprehensive)

[14]      Mr Niall James Caldwell (42) gave evidence.  He explained that he works as the Managing Director of an engineering firm.  He is a graduate in mechanical engineering and has a doctorate in applied science.  With his scientific background he gave very cogent and precise evidence as to what had happened at the end of the Sicilian holiday he had with his wife, in September last year.  He explained the holiday was booked using Morningside Travel, in Edinburgh.  It was not an all-inclusive “package holiday” from a single supplier.  It was a bespoke composite holiday.  The holiday flights were contracted by Morningside Travel using another agent, Prestige Holidays.  The hotels and car hire were arranged direct by Morningside Travel.  It was a touring holiday.  He and his wife left Edinburgh on the 30 August and flew to Gatwick mid-evening, arriving late (22.05) and stayed for a few hours sleep in an airport hotel, getting up, very early, for a 07.00 flight to Catania on 31 August 2014.  The holiday went well until the last day, 14 September 2014.  Mr Caldwell explained that he and his wife stayed reasonably close to Catania on their final night and arrived at the airport about 09.25 to drop off the Avis rental car.  They knew from the Easyjet terms and conditions that the bag-drop desk opens two hours before the flight departs.  They dropped the car which took only a few minutes and made their way to the terminal building to drop off their luggage.  They each had a 20kg suitcase to be put in the hold.  They had confirmed reservations.  They had already been checked-in and issued with boarding passes by Morningside Travel, before they left Edinburgh.  Once inside the terminal building they identified the Easyjet counters.  The Caldwells saw a long snaking queue, with no control barriers, stretching back some 100m.  They joined the end of the queue.  The desks opened at 09.35.  Before long, the Caldwells were feeling anxious about their flight which was scheduled to depart at 11.35.  There were over 100 people in the queue.  Only three desks were servicing the queue which contained passengers travelling to Paris at 11.02, London, Gatwick at 11.35, Manchester at 12.10 and London, Luton at 12.25.  Their gate according to the boarding passes closed at 11.05.  There was no attempt being made by Easyjet ground staff to triage the queue or give priority to the travellers on the earlier flights.  About 10.00, Mr Caldwell went to the head of the queue, explained his concerns to Easyjet staff and asked to be given priority.  This request was refused.  He was told there is only one queue.  The pursuers finally dropped their bags at 10.26.  They were then concerned about getting through airport security and raised this with Easyjet staff, as they only had 39 minutes before their gate closed.  They were told, there was no other way, they had to queue, like everyone else.  The security queue was a single queue but there was a separate “families queue” if you were travelling with children.  Both queues were moving very slowly.  There was no prioritisation, management or triage.  Mr Caldwell asked a member of the airport staff if they could be prioritised, in case they missed their flight.  He was told this could only be done if requested by the airline he was travelling with.  As this had not been asked for, he had to wait in line.  No Easyjet staff were managing the situation.  The Caldwells eventually got through security by 11.25 and dashed to immigration control.  They made Gate 22 at 11.35 but were told the gate was closed and the flight had left.  They were informed their luggage had been unloaded and would be at the lost luggage counter in the main terminal building.  The Caldwells were very unhappy about the lack of help, assistance and concern shown by Easyjet ground staff.  At no stage were their names called on a public address system nor was any information given to assist them.  The Easyjet ground staff did not help them navigate their way through security check, customs or passport control.  So far as Easyjet was concerned the pursuers had missed their flight.  No practical information or care was shown or given.  When they returned to the main terminal building Mrs Caldwell went to look for alternative flights.  Mr Caldwell waited for the couple’s bags at lost luggage.  Easyjet indicated their next flights to the UK were not until 16 and 17 September.  The Caldwells both had work commitments on Monday 15 September 2015 and could not stay in Sicily.  They had to be back in Edinburgh.  They were told that if they travelled with Easyjet they would need to pay their own way.  Al Italia, the main Italian carrier, they were told, had no availability flying off the island, that day.  However, British Airways did have two seats available on its 13.55 flight to Gatwick, London.  Accordingly, at 12.54, with 59 minutes until departure, the pursuers bought those seats.  They were very concerned they would not make it to the departure gate in time, given their experience that morning but BA ground staff reassured them otherwise and after check-in at the BA desk they were accompanied through security control to the departure gate, by a BA representative, to ensure they made the flight.  They paid 1139.18 Euros (£869.77) for the flights; more than double the cost from Easyjet.  The pursuers arrived in Gatwick, London, at 16.05, in sufficient time to catch their original connecting Easyjet flight EZY 811, to Edinburgh, at 18.30.  Once home, they decided to complain and claim the cost of their BA flights from Easyjet.  They claimed firstly from Morningside travel who directed them to Prestige Holidays, the booking agent, which passed them onto Easyjet customer services.  Easyjet did not accept responsibility for what had happened.  Rather, Easyjet said it was the passenger’s responsibility to arrive at the departure gate on time for their flight.  However, Easyjet did confirm that, of the 180 passengers who were booked on flight EZY 8566 – Catania, Sicily to London Gatwick, at 11.35, that day, only 168 actually flew.

[15]      In cross examination by Mr Vaughan, it was put to Mr Caldwell that he could have arrived earlier that morning for the flight.  Mr Caldwell stated he would have if he had been told there was any likelihood of queuing, such as occurred.  Mr Caldwell said the terms and conditions of Easyjet state that baggage drop-off opens two hours before departure and that details of the formalities and procedures at the airport will be made available.  The Caldwells were given no further information about likely travel conditions in Catania airport that morning.

[16]      The second pursuer was present when Mr Caldwell gave his evidence and she confirmed that his account of what happened was accurate.  With that, the pursuers closed their case.

 

Defender

[17]      Mr Vaughan indicated he intended to lead no oral testimony but proffered a sworn written statement, dated 25 September 2015, in evidence, from Nick Nicholas, a senior lawyer with the defender company, with various documents appended to it.  The documents appeared to be screenshots of computers with encoded information on the face of it.  Part of the statement of Mr Nicholas explained the screenshots, another part explained the terms of the parties’ contract and another part (paras 20-22) explained that from the screenshots and computer records of the defender it appears to be the case that an unnamed and unidentified passenger checked in at Catania on 14 September at 10.39 [13 minutes after the Caldwells] and boarded flight EZY 8566 at 11.04, some 25 minutes later, in respect of the same journey through airport security and immigration control, that it took the Caldwells 69 minutes to complete.  I asked if Mr Caldwell objected to this document being received.  He did.  He indicated that Easyjet operate four flights daily from Luton to Edinburgh and Mr Nicholas could have taken one of these to be in court to answer questions about the accuracy, content and significance of the affidavit and the documents proffered.  Mr Caldwell said the unidentified traveller could have had children and been given priority.  He could have had some other priority status such as working in security or for the airlines which allowed him special passage without queuing.  He could have been an organ donor carrier.  I decided to allow the statement and documents as I am obliged to do in a summary cause, under reservation, (Rule 8.15 Summary Cause Rules cf McVinnie v McVinnie 1995 SLT (Sh Ct) 81) and on that basis the statement was read through by Mr Vaughan.  Mr Caldwell somewhat unsuccessfully attempted to cross examine Mr Vaughan on the content of the statement.  Mr Vaughan was unable to answer any of the questions.  I invited Mr Caldwell he best reserve his criticisms of the affidavit for final submissions, which he did.  With that the defender closed its case.

 

Submissions

Pursuer

[18]      I would not expect Mr Caldwell as a lay litigant to understand contract law or the jurisprudence surrounding European law.  I allowed him considerable latitude in making his case.  Some of the submissions he made informed my decision; others did not.  I will briefly surmise what I take to be the salient aspects of his case.  In relation to the claim for damages for breach of contract Mr Caldwell argued that he and his wife had complied with the terms of the contract.  They were at the airport for baggage drop, two hours in advance of their flight.  They were given no other warning about excessive queuing at Catania.  They had no control over the operational procedures within the airport terminal.  Clause 12.2.1 of their contract states the passenger will be given details of formalities and procedures at the airport at the time the booking is made.  The Caldwells were never given any details about possible long delays at Catania airport.  Had they been warned of this they would have arrived earlier than they did.  Easyjet were in breach of contract for not forewarning them.  Mr Caldwell spent some time analysing the system flow of passengers at Catania airport.  He had done a considerable amount of work on the internet investigating models for increasing and decreasing queuing in airports.  He found an Article entitled “Intelligent Resource Simulation for an Airport Check-In Counter Allocation System” in a publication from 1999, entitled, Transactions on Systems, Man and Cybernetics, by Hon Wai Chun and Raymond Wai Tak Mak which analysed and examined check-in times and resource allocations against queue sizes at Hong Kong airport using a variety of different computer based models of queuing systems.  This demonstrated that there is science to allocation of resources at check-in which can affect the size and wait times of queues.  He also found a document which itemised the charges levied by an Italian company contracted to supply security services at Catania Airport thereby, he argued, demonstrating that these services are privatised and that the defender could contractually influence the improvement of such services at Catania.  He also relied on a printout from a website called SKYTRX which contained contemporaneous criticisms by other travellers about the lack of management and control at Catania airport in September 2014.  He refuted the defender’s suggestion that it had no control over queuing conditions at the airport.  From his point of view the responsibility for what happened to him and his wife was Easyjet’s.  Easyjet, he asserted, could have intervened to assist him to reach the departure gate, on time.  He asked for assistance to circumvent the queues which were obstructing his passage on three occasions and was refused.  That was breach of contract.  With regard to the statement of Nick Nicholas, Mr Caldwell invited me not to admit it.  The witness ought to have been present to answer questions.  It was unfair to admit a document which cannot effectively be challenged.  It is not possible to say if the unidentified traveller was in a special position and able to get through security without queuing.  Separately, Mr Caldwell also sought reimbursement of his fare for the failed flight and compensation in terms of Article 8 of Regulation 261/2004.  This summary, brief as it is, does not do justice to the breadth and depth of the arguments put forward but overall I found Mr Caldwell’s contribution greatly helped clarify and channel the direction of my thinking.

 

Defender

[19]      Mr Vaughan was concise.  The defender is not in breach, nor has that been demonstrated in the evidence.  The contract which the pursuers are bound by, makes it plain in clause 12.2.1 that they were responsible for reaching the departure gate, on time, for the flight.  It says:

“You must arrive at the airport sufficiently in advance of the scheduled Flight departure time to permit completion of Government formalities and security procedures.  Government formalities and security procedures may vary at different airports and for particular Flights.  It is Your responsibility to ensure that You comply with these formalities and procedures, details of which will be available at the time Your booking is made.”  

 

Carriage was agreed on that basis.  The fact is, the pursuers were late and missed their flight.  That is unfortunate but not the responsibility of the defender.  Mr Vaughan relied on the statement of Nick Nicholas that one passenger checked in after the pursuers and got to the gate in time for departure which he says indicates conditions must have been such that transit through airport security could have been completed in time for boarding.  With regard to the case based on Regulation 261/2004 he said this was not an example of “denied boarding”.  For that to apply there must be a conscious decision on the part of the carrier to actually deny boarding.  Denied boarding applies when there is deliberate “overbooking” of the flight by the carrier and some passengers must be denied booking because the plane is full and cannot carry them or “bumping” which is the practice of rescheduling the passenger’s flight by putting him onto a later flight for certain operational reasons.  Neither practice occurred here.  Here, all that happened, is that the passengers were late.  The flight had departed before they arrived at the gate and could be denied boarding, which they were not.  He asked for the case to be dismissed with decree of absolvitor in favour of the defender.  His client, however, had some sympathy for the pursuers and the situation they found themselves in that day, accordingly, he did not move for expenses but asserted that the defender must defend cases like this, on principle, otherwise the cost of cheap, low budget, travel would inevitably become more expensive, if carriers had to pay compensation and damages, in cases like this. 

 

Decision on the merits

Admissibility

[20]      While obviously at the level of an ordinary action there may be some room for dispute as to the admissibility of a controversial affidavit on a material issue and judicial opinion has been divided on this issue in Scotland, see generally, Macphail Sheriff Court Practice 3^rd Ed 15.43 and the cases of McVinnie v McVinnie, op cit; Ebrahem v Ebrahem 1989 SLT 808; Smith v Alexander Baird Ltd 1993 SCLR 563; Lobban v Philip 1995 SCLR 1104.  However, I have no doubt that at the level of an abbreviate cause such as a summary cause the modern practice is to admit all evidence free proof and for the court to consider what weight is to be attached to the document.  Rule 8.15 of the Summary Cause Rules provides:

“If in the course of a proof an objection is made to the admissibility of any evidence and that line of evidence is not abandoned by the party pursuing it, the sheriff must except where-

 

(a)        he is of the opinion that the evidence is clearly irrelevant or scandalous; or

(b)        it is an objection falling within rule 8.16(1),

 

note the terms of the objection and allow the evidence to be led reserving the question of its admissibility to be decided by him at the close of the proof.”

 

I am inclined to admit the affidavit subject to the obiter dicta in McVinnie and Smith that parties who produce such documents, which may sit in stark contradiction to the oral testimony in the case, do so, at their peril.  In an adversarial contest between witnesses who give evidence, real witnesses that parties can cross-examine viva voce and the judge assess live in court and a flat one dimensional document which is coldly read into the record of proceedings, the party tendering such an affidavit, inevitably, runs the risk that the written word will be found factually defective and probatively unconvincing, when compared with the comprehensive nature and intensity of parole evidence and the confirmatory effect live tested evidence may have on the fact finder.  I will allow the affidavit subject to such weight as it may carry.

 

Damages for breach of contract

[21]      I begin by stating I found the pursuers to be entirely credible and reliable witnesses.  I have no doubt they are completely honest and explained all that happened, accurately, on the 14 September 2014.  For reasons I am about to articulate I did not require to assess their evidence against the defender’s affidavit evidence.  In my opinion to succeed in their claim for damages arising from breach of contract the pursuers would have to establish a number of essential facts.  Pursuers would need to prove the contract, prove how it had been breached, establish the defender was responsible for that breach, prove the breach caused the damage and quantify their damage or loss.  There is no problem in proving that the contract was one for international carriage by air.  The date and destinations are established.  The full terms and conditions are in the defender’s standard form.  All of that is proved and accepted (destination apart at this stage) by both sides.  The difficulty, in my opinion, for the pursuers is twofold.  Firstly, the pursuers struggle to attach liability to the defender for breach of contract and secondly, as a direct consequence of that, they have failed to demonstrate it was a defender breach which caused their undoubted damage.  The reason for this is that the pursuers agreed that carriage was on the basis that they alone accepted full responsibility for certain aspects of their travel, in terms of clause 12.2.1 of the contract, which clearly states it is their responsibility to “arrive at the airport sufficiently in advance of the scheduled Flight departure time to permit completion of Government formalities and security procedures.  Government formalities and security procedures may vary at different airports and for particular Flights.  It is Your responsibility to ensure that You comply with these formalities and procedures, details of which will be available at the time Your booking is made.”  The fact that more information was not provided to the pursuers does not alter the fact that the agreed basis of travel was that the pursuers accepted responsibility for arrival at the departure gate, in sufficient time to fly, however long that sufficiency required to be.  The pursuers also agreed that they must present themselves for boarding in terms of clause 12.4.1, or there would be consequences.  The clause states,

“Please note: You must present Yourself at the boarding gate no later than 30 minutes prior to scheduled time of departure or You may not be accepted for travel, and will forfeit Your seat even if You have purchased easyJet Flexi, Extra Legroom or Up Front seats, or if you are an easyJet Plus! Cardholder where Speedy Boarding applies.  It is recommended that You present Yourself at the boarding gate ready for boarding no later than 40 minutes before the scheduled departure time of Your Flight.”

 

Again carriage was agreed on that basis.  Further the pursuers knew what the consequences would be if they failed on their side of the bargain to arrive in sufficient time to clear security check, customs and passport control.  This is detailed in clause 12.4.3. 

“If You present Yourself at the boarding gate outside the time restrictions outlined in this Article 12 (Online Check-in and Airport Procedures), or You are improperly documented and not ready to travel, We may refuse to carry You and You will forfeit Your seat and any right to compensation, subject to any passenger rights pursuant to any international or domestic laws or regulations to the contrary.”

 

In my view, the pursuers by contracting like this, on a standard form contract, (which they could not alter) accepted the entire risk should they fail to reach the departure gate, in time for the flight.  Of course, the pursuers had no choice because these standard forms cannot be altered by the customer.  The defender has the whip hand.  The passenger either travels on the carrier’s conditions, or not at all.  However unpalatable that may seem, in retrospect, it was the agreement, freely entered into, between these parties.  The fact that no information was made available about likely conditions on the ground at Catania does not alter the basic premise contained in clause 12.2.1, that responsibility for clearing security, customs and passport control was agreed to be entirely shouldered by the pursuers.  The pursuers agreed, in their contract, to accept full responsibility for compliance with Italian Government formalities and security procedures.  That must reasonably be taken to include loss or damage, directly arising from any catastrophic delay resulting in their failure to present at the departure gate for boarding the plane.  Accordingly, I am obliged to conclude that the pursuers contractually absolved the defender from all liability for any loss or damage arising from their failure to reach the departure gate, on time, to catch the flight.  I am of the view that a vital link in the chain of causation, which is necessary to bring liability home, to the defender, is fatally absent from the claim for damages for breach of contract.  Understandably, Mr Caldwell, in his submissions and research spent a great deal of time analysing what actually happened on the day the pursuers missed their flight but I require to analyse and assess what he and his wife actually agreed to, in their contract of carriage, before I could hold the defender in breach.  I have no doubt the queuing arrangements at Catania could be substantially improved but that is nothing to the point.  The legal onus is entirely on the pursuers to prove their case arising from breach of contract at common law.  The pursuers have failed to prove it was the defender who was liable for their delay and a fortiori that it was the defender that caused the damage claimed, by breach of contract.  I appreciate this analysis will be of little comfort to the pursuers but it represents what I consider to be the legal consequences of the agreement they freely entered into.

 

Denied boarding

[22]      I turn now to Regulation No 261/2004 which in my opinion is a horse of a different colour.  I will require to set out in some detail what the concept “denied boarding” means, how it has been interpreted by the ECJ and analyse how and when in European law it applies.  This will be very tedious but I regret it is necessary to the decision in this case.

[23]      I begin, however, by stating I accepted the testimony of the pursuers, entirely, on the facts.  I attached no weight to the content of the affidavit of Nick Nicholas especially at paras 20 to 22 wherein he asserts computer records disclose an unidentified traveller checked in after the pursuers and made the departure gate in 25 minutes and caught flight EZY 8566.  Without hearing directly from that witness I find it impossible to accept as proved fact the content of the affidavit on this matter, absent further inquiry of the witness, as against the clear detailed and honest testimony of the pursuers.  I accept the criticisms of Mr Caldwell, on this point, that the traveller may have had special privileges which enabled him speedy passage through the system.  He may have had a child and been given priority.  Mr Vaughan was unable to clarify beyond the bare content of the affidavit or answer any of the questions raised by Mr Caldwell.  The remainder of the affidavit tells me no more than I already know from hearing the pursuers and reading the documents lodged.  As I indicated before, defenders who tender testimony in this form, on the morning of a proof, run the obvious risk that the primary and direct evidence of called sworn witnesses will be preferred to the flat content of an affidavit which cannot be questioned or explored in cross examination, or assessed by the fact finder for credibility and reliability.  If accepted, the affidavit, especially para 20 to 22, would undermine the evidence of the pursuers to a material extent about the time it took to pass through security, customs and passport control.  Having seen and heard the pursuers I am not persuaded to prefer the content of an untested and potentially misleading secondary source of evidence over and against their clear primary evidence about the conditions in Catania airport that morning and their own personal experiences. 

[24]      But were the pursuers actually denied boarding?  The defender asserts they were just late for the gate, which had already closed by the time they arrived at it.  Both parties referred me to the Regulation No 261/2004 and the opinion of Advocate General Bot delivered on 19 April 2012 in the case of Finnair Oyj v Timy Lassooy EU: Case C-22/11.  The pursuers referred me to the decision of the ECJ in the reference for a preliminary ruling in the case of Germán Rodríguez Cachafeiro and María de los Reyes Martínez-Reboredo Varela-Villamor v Iberia, Líneas Aéreas de España SA.  Case C-321/11.  Celex No.  611CJ0321.  For completeness it should be noted the advisory opinion of the Advocate General was accepted and uncritically given effect to in the final ECJ decision in its judgment of 4 October 2012.  Finnair Oyj v Timy Lassooy Case C-22/11.  Celex No.  611CJ0022 adopts the reasoning and conclusions of the Advocate General without criticism.  I will return to that later as it is the ECJ decision which contains the law as distinct from the analysis.

[25]      Regulation 261/2004 is intended to extend a high level of regulatory protection to passengers travelling by air within, to and from the EU.  Inter alia, the Regulation establishes common rules for a denied boarding compensation system within the area of scheduled air transport.  Being denied boarding and cancellation or being subject to long delay of flights causes serious trouble and inconvenience to passengers.  These are the mischiefs the Regulation is directed at.  The concept of denied boarding is defined in Article 2(j) of Regulation 261/2004 thus: “'denied boarding' means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation;”.  So far as relevant to this case, to be entitled to compensation, if denied boarding, Article 3(2) provides a passenger must first come within the scope of the protection of the Regulation, which applies under the following conditions:

“….that passengers (a) have a confirmed reservation on the flight concerned and, except in the case of cancellation referred to in Article 5, present themselves for check-in, as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent, or, if no time is indicated, not later than 45 minutes before the published departure time”. 

 

In the present case I am satisfied the pursuers had a confirmed reservation for flight EZY 8566.  Article 5 does not apply.  The pursuers did present themselves for check-in in terms of their itinerary and in any event, more than 45 minutes before departure.  Accordingly, I have little difficulty concluding the pursuers come within the scope of the operation of the Regulation and are accordingly entitled to a high level of passenger protection from the moment they presented at check-in.

[26]      At one time it was thought denied boarding only applied to cases of overbooking and those passengers alone who were refused access to the plane because it was already full, had a right to compensation for being denied boarding.  The interpretation of Article 2(j) was the subject of the preliminary reference in Germán Rodríguez Cachafeiro and María de los Reyes Martínez-Reboredo Varela-Villamor v Iberia, Líneas Aéreas de España SA.  The ECJ held on 4 October 2012, in answer to a reference from the Commercial Court in Corruna, that:

“23  It is in that context that by means of Article 2(j) of Regulation No 261/2004 the EU legislature removed from the definition of 'denied boarding' any reference to the ground on which an air carrier refuses to carry a passenger.

 

24  In so doing, the EU legislature expanded the scope of the definition of 'denied boarding' beyond merely situations where boarding is denied on account of overbooking referred to previously in Article 1 of Regulation No 295/91, and construed 'denied boarding' broadly as covering all circumstances in which an air carrier may refuse to carry a passenger.

 

25  That interpretation is supported by the finding that limiting the scope of 'denied boarding' exclusively to cases of overbooking would have the practical effect of substantially reducing the protection afforded to passengers under Regulation No 261/2004 and would therefore be contrary to the aim of that regulation - referred to in recital 1 in the preamble thereto - of ensuring a high level of protection for passengers.  Consequently, a broad interpretation of the rights granted to passengers is justified (see, to that effect, Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 69, and Case C-549/07 Wallentin-Hermann [2008] ECR I-11061, paragraph 18).

 

26  Accordingly, to accept that only situations of overbooking are covered by the concept of 'denied boarding' would have the effect of denying all protection to passengers who find themselves in a situation such as that of the applicants, by precluding them from relying on Article 4 of Regulation No 261/2004, paragraph 3 of which refers to the provisions of that regulation relating to rights to compensation, reimbursement or re-routing and to care, as laid down in Articles 7 to 9 of that regulation.”

 

The passengers in Cachafeiro, through no fault of their own, were denied boarding, in circumstances where the carrier wrongly thought they would miss a connecting transatlantic flight and resold their seats.  When the passengers arrived and duly presented for departure they were denied boarding as their confirmed seats were already taken. 

[27]      In the present case I did not understand the defender to argue that there were reasonable grounds relating to the conduct of the pursuers to justify a denial of boarding but rather that the concept “denied boarding” did not apply, at all, in this case because the passengers were late.  I regret it is therefore necessary to look more closely at the ECJ jurisprudence to ascertain if “denied boarding” can apply in a situation where the passengers are on time for check in, protected by the Regulation but late for the boarding gate, through no fault of their own.  In my opinion to examine that question it is necessary to look very closely at the analysis of Advocate General Bot in Finnair Oyj v Timy Lassooy.  That case dealt not with overbooking but with the practice of “bumping” where for certain operational reasons a carrier finds its flight is overbooked and reallocates passengers on later flights.  Following a strike at Barcelona Airport on 28 July 2006, Finnair decided to reschedule its Helsinki-Barcelona flights, scheduled for 28, 29 and 30 July 2006, and denied Mr Lassooy boarding to his confirmed reservation, giving priority, on the flight which he should have taken, to the passengers who were unable to board the earlier scheduled flight of 29 July 2006 following the strike.  Mr Lassooy was “bumped” on to the next flight.  He invoked Article 4(3) [denied boarding] of Regulation No 261/2004 and considered that Finnair should pay him compensation in accordance with that provision.  Eventually the matter was referred to the ECJ.  The Advocate General in his opinion states the reasons why he thinks that the concept of denied boarding includes not only cases of overbooking and “bumping” but can also occur in other situations where for operational reasons carriers wrongly deny passengers boarding in contravention of the Regulation.  The Advocate General analyses in some detail the meaning and application of the Regulation.  He states:

“46.  The point about denied boarding is that it relates to a passenger and not to the flight itself.  Admittedly, it may happen that several passengers are denied boarding on the same flight.  However, unlike cases of cancellation and delay, denied boarding does not affect all the passengers equally.  It is an individual measure taken by the air carrier arbitrarily against a passenger who has nevertheless satisfied all the conditions for boarding.

 

47.  That individual measure loses its arbitrary character only if the passenger himself commits a fault, for example by presenting invalid identity documents, or if, by his behaviour, he endangers the safety of the flight and/or of the other passengers, for example if he is inebriated or shows signs of violence.  In my view, in such cases, it is because the decision not to allow the passenger to board is attributable to him that Article 4 of Regulation No 261/2004 does not apply and that passenger cannot claim any compensation or assistance.

 

48.  On the other hand, it seems to me that, in view of the objective of that regulation, which is to ensure a high level of protection for air passengers, the decision to deny boarding based on reasons which are wholly unrelated to the passenger concerned cannot have the effect of depriving him of all protection.”

 

In the present case, I am satisfied as a matter of fact that the passengers did nothing which had the character of fault about it, that would be capable of disqualifying them from the protection afforded by the Regulation.  They did not dillydally on the way to the departure gate.  They did not divert to a restaurant or bar to have refreshments.  They were not legitimately detained at security for additional searches.  In those circumstances where the passenger is not at fault and has complied with his obligations by presenting at check-in on time, conform to reservation, can the delay caused by queuing which results in the passenger arriving too late at the departure gate be classified as “denied boarding” for the purposes of Regulation No 261/2004?  The defender in this case asserts the delay at security and passport control is not its responsibility.  According to the defender this is beyond the control of Easyjet.  This is even said in the affidavit of Mr Nicholas.  Thus, the question in the present case becomes, in the passage from check-in to departure gate, is the protected passanger, just to be, in the words of the Advocate General “….abandoned to his fate which is totally contrary to the objective pursued by th[e] regulation which is, we recall, to ensure a high level of protection for air passengers.” [para 39].  Is the distance between check-in and departure gate a “no man’s land” which is beyond the protection of the Regulation?  Can the carrier, like Pontius Pilate, simply wash its hands of the passenger lost in this “no man’s land” between check-in and the boarding gate, blameless, yet with no protection under the Regulation? Dante in the Divina Commedia described those who had queued to enter the City of Dis as “la perduta gente” [the lost or forgotten people].  Are passengers such as the pursuers in this case simply to be lost, forgotten and abandoned to their fate?  The Advocate General asserts, in the case of Mr Lassooy, that if he were to be denied the protection of the Regulation, just because the carrier had to reschedule flights, following a strike which was beyond its control, without compensation, then that would be contrary to the intention of the European Legislature.  In my opinion, the answer to the question who, within the framework of the Regulation, is responsible for the mismanagement of the queue at Easyjet check-in that morning and for the consequences of the bottle-neck causing delay to passengers passing through security check, customs and passport control, is to be found in the opinion of Advocate General Bot wherein he states:

“55.  It is indeed true that the airport strike cannot be attributed to Finnair.  However, as is apparent from the travaux préparatoires for the adoption of Regulation No 261/2004, the system of compensation and assistance for air passengers established by the EU legislature is designed, above all, to protect those passengers.  Thus, that legislature adopted a simple solution according to which all the obligations relating to that scheme are the responsibility of the carrier operating the flight.  It is a solution which is practical since the operating carrier has personnel and agents in the airports to help passengers.  It is a system which is direct and simple, and therefore easily understood by passengers.”

 

[28]      In my opinion, provided the passenger presents for check-in on time for a confirmed reserved seat and is not at fault, he is entitled to compensation if denied boarding and the responsibility for taking reasonable steps to facilitate passage through the carrier’s own bag-drop queues and airport security queues, rests with the carrier.   To hold otherwise would mean that bona fide and blameless travellers like the Caldwells, who were thrice denied help and assistance by the carrier, would necessarily be deprived of the high level of protection which Regulation No 261/2004, was enacted to provide.  Nor can the carrier’s responsibility be elided by turning a blind eye to one set of passengers who are abandoned and stranded on the ground in favour of those who are boarded to take off, on time.  Article 15(1) of the regulation provides: “Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage”.  Further, the Regulation is without prejudice to the right of carriers, as provided in Article 13, to seek redress from third parties for compensation paid out to passengers following satisfaction of obligations in terms of the Regulation. 

[29]      With regard to the argument proffered by Mr Vaughan that the pursuers were just late for the gate, I am of the view that does not answer the question, were the pursuers denied boarding? It simply begs it.  To deny compensation to passengers in the position of the pursuers and allow carriers to close the gate and depart the aircraft in the circumstances proved in this case, would thereby permit carriers arbitrarily to discriminate against passengers entitled to a high level of protection, without sanction.  Equally, the suggestion in Mr Nicholas’s affidavit, that Easyjet cannot influence or prioritise passage through security, flies in the face of the evidence which I accepted, that BA ground staff were able to chaperone the pursuers through security to the gate for the replacement flight, with no difficulty at all.

[30]      In its judgment of 4 October 2012, Finnair Oyj v Timy Lassooy Case C-22/11.  Celex No.  611CJ0022, the ECJ accepted the entire analysis of the Advocate General without demur and held “…that the concept of ‘denied boarding’, within the meaning of Articles 2(j) and 4 of Regulation No 261/2004, must be interpreted as relating not only to cases where boarding is denied because of overbooking but also to those where boarding is denied on other grounds, such as operational reasons.” For example, in a German case, a passenger received compensation when he arrived at check-in on time for a reserved flight.  Insufficient check-in personnel were operationally assigned, by the carrier, to the counter to check him in for his flight.  He missed the flight.  The circumstances were characterised as, “denied boarding”, see, Amstgericht Erding (Court of Small Claims) 5 July 2006, Case No 4 C 309/06, 2007, ReiseRecht aktuell 41, reported, in English, in Air & Space Law, Vol XXX/3 (June 2007); see also Shawcross & Beaumont para [1020].  Thus, in the circumstances of the present case, I am satisfied the facts proved can properly be characterised as denied boarding because of the operational inadequacies of Easyjet ground staff’s management of the Easyjet queues on 14 September 2014 and their failure to facilitate passage through security check, customs and passport control when asked, in circumstances, where it was obvious the passengers were in danger of missing their flight.  The defender has identified no reasonable grounds for this denial of boarding, relevant to the fault of the pursuers.  The passenger’s right to a high level of protection and compensation if that is breached by the carrier cannot be restricted by contract.  Accordingly, I will hold there has been a breach of the passenger’s rights under the Regulation No 261/2004 and that they are entitled to compensation and reimbursement.

 

Compensation and reimbursement

[31]      I am satisfied the passengers are entitled to compensation in terms of Article 4(3) in accordance with Article 7 and assistance in terms of Article 8.  Given the distance of the flight missed and for their trouble and inconvenience the pursuers are entitled in terms of Article 7(1)(b) to compensation amounting to 400 Euros, each.  On 14 September 2014 this would have amounted to £634.92, in total.   Additionally, Article 8 entitles the passenger to be offered, by the carrier, a choice between immediate reimbursement of the full cost of the ticket for the wasted journey, in other words, a money back guarantee, or re-routing to the port of departure or final destination.  That choice was never offered to these passengers, as it should have been.  Accordingly, the passengers are entitled to their money back for the failed flight which amounts to £407.98.  Thus, in total, the sum awarded is £1042.90. 

 

Interest

[32]      The high level of protection afforded by the Regulation, in Article 4(3) and Article 7(3), provides that the passengers compensated and reimbursed, must be paid immediately in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.  This was not done.  Accordingly I shall award interest on the sum of £1042.90 awarded, at the judicial rate, from 14 September 2014 until payment.

 

Expenses

[32]      The normal rule applies, expenses follow success.  I shall award the pursuers their expenses on the small claims scale for the diet of 7 August 2015 and as assessed by the sheriff clerk, on the summary cause scale, in respect of the proof diet of 30 September 2015.

 

 

 

Sheriff T Welsh QC

Edinburgh Sheriff Court

15 October 2015.