Scottish Sheriff Court Decisions

2015SCPAI70

SA647/15

SHERIFFDOM OF NORTH STRATHCLYDE AT PAISLEY

JUDGMENT BY SHERIFF DEREK D LIVINGSTON

In the cause

Sandra Jean Dunbar

Pursuer

against

Easy Jet Airline Company Limited, Hangar 89, London Luton Airport, Luton, Bedfordshire, LU2 9PF

Defender

Act: Party

Alt: Vaughan, Kennedys

Paisley 30^th October 2015

The Sheriff, having resumed consideration of the cause:

Finds the Defender liable to the Pursuer in the sum of FOUR HUNDRED EUROS (€400) with interest at 8% per annum from 28^th July 2014 and finds the Defender liable in expenses of £73.00.

NOTE

1. This is a claim brought by the Pursuer in respect of an Easy Jet Flight EZY 6861 from Glasgow to Malaga on 28^th July 2014 on which the Pursuer was due to travel.The Pursuer’s flight was delayed by over 6 hours invoking EC Regulation 261/2004 entitling passengers to compensation for any delay exceeding three hours unless there are both extraordinary circumstances and the delay could not have been avoided even if all reasonable measures had been taken. Standing the flight distance the compensation payable would be 400 Euros.
2. Many of the factual and legal elements in this case were not in dispute.The Defender’s factual position re earlier delays was accepted by the Pursuer i.e. that the departure of the aircraft in question, from Gatwick Airport at 7.55am that day to Bologna, was delayed until about 1.42pm arriving at 4.22pm. That same aircraft’s return to Gatwick Airport was then delayed in that instead of departing at 10.30am it left for Gatwick Airport at 5.05pm arriving at 7.07pm. The aircraft which had been due to depart on the next leg of its journey which was from Gatwick to Glasgow at 1.20pm did not in fact do so until 8.27pm thus arriving at 9.50pm rather than its scheduled arrival time of 2.25pm. Finally the Pursuer’s flight on that aircraft departed at 10.26pm arriving in Malaga the following morning at 1.12am compared with scheduled departure and arrival times of 3.55pm and 7.10pm respectively. The times used are Co-ordinated Universal Time which is constant throughout the year and is one hour less than British Summer Time and two hours less than Central European Summer Time.
3. It was further accepted that the original causes of the delays had been decisions by air traffic management to delay the departure to Bologna (along with numerous other departures) due to what was mainly adverse weather conditions. The time of take off from Gatwick to Bologna was changed about 10 times.
4. There was no dispute between the parties that if I found the Defender liable the sum of €400 was payable by it to the Pursuer. It was agreed on all sides that a delay of more than three hours brought into play the right to compensation but that that right to compensation was limited by Recital 14 of the regulation which states:

   As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.  Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier. 

5. Recital 15 states:

   Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations. 

6. It was accepted on both sides that the onus was on the Defender to show that the Pursuer’s delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
7. The first question that arose was whether or not what had taken place on the day constituted an extraordinary circumstance.Whilst that might seem obvious as the case went on it became less so.There were no adverse weather conditions or air traffic control delays from Glasgow Airport.There were none at Malaga Airport.
8. I had before me a witness statement from Stuart Trounson, an Operations Officer from Easy Jet, employed in the Flight Operational Control Centre of the Defender. His role is to plan in advance how flights are to be operated on a particular day as well as fleet control when disruptions occur.
9. I came to the view that I could competently look at that. The Civil Evidence (Scotland) Act 1988 Section 2 (1) (b) provides for a statement made by a person other than in the course of a proof being admissible as evidence of any matter.This of course does not mean that it is particularly satisfactory where evidence is adduced when there is no opportunity for cross examination or even clarification but it did appear to me that it was admissible evidence.
10. Mr Trounson said in his statement that the aircraft upon which the Pursuer was due to travel (and did travel) was registered as G-EZUD.The aircraft was due to undertake various trips that day from Gatwick to Bologna being scheduled to depart at 07:55 and arrive at 10:00, from Bologna to Gatwick scheduled to depart at 10:30 and arrive at 12:40, from Gatwick to Glasgow scheduled to depart at 13:20 and arrive at 14:45 and subsequently the aircraft would depart from Glasgow at 15:55 arriving in Malaga at 19:10.
11. He continued with his evidence stating that the Gatwick to Bologna flight did not in fact depart until 13:42 and arrived at 16:22.The aircraft then departed Bologna at 17:05 and arrived at Gatwick at 19:07.It then departed Gatwick at 20:27 and arrived at 21:50 in Glasgow and finally departing from Glasgow at 22:26 and arriving in Malaga at 01:12. He stated the reason for these delays were due to air traffic control management decisions delaying departures.He stated that G-EZUD was ready to fly when a message was received to the effect that the aircraft would not be able to depart from London Gatwick at the scheduled time but instead would have a delayed departure slot.The delay was estimated to be until 07:55 but the calculated take off time might not be until 08:20.That take off was then put back to 10:22 following upon another message from air traffic control and then subsequently changed to 10:10 and then to 10:22, and then 11:21 and eventually to 14:08.That time was then brought forward to 13:30 and then to 13:22, to 13:16 and finally put back to 14:27.It took off at 14:36.Finally there was an overall delay in that flight departing of 6 hours 22 minutes with the knock on of this eventually resulting in the Pursuer’s flight arriving in Malaga with a delay of 6 hours 2 minutes.
12. His evidence was that there were no reasonable measures which the Defender could have taken to avoid the air traffic control management decision to apply departure slot delays to the Gatwick to Bologna flight.The witness further stated Easy Jet had four spare aircraft in the network on the day and there was also the possibility of calling upon a spare aircraft of a linked company in Switzerland.He stated however that all of these spare aircraft were already in use operating other delayed flights.
13. His explanation for this is that one spare aircraft was already at London Gatwick and was sent to Venice to operate the London Gatwick to Dalaman flight which was diverted to Venice following upon the scheduled aircraft having suffered an “unexpected flight safety shortcoming” in the evening of 27^th July 2014.
14. Another spare aircraft was in Luton but thunderstorms in the South East of England also meant that aircrafts departing Luton were subjected to similar air traffic control restrictions as those from London Gatwick and the spare aircraft was operating some delayed flights from Luton.
15. Another spare aircraft was in Milan Milpensa but on the morning of 28^th July 2014 the spare aircraft was sent to Milan Linate to operate the overnight delayed sectors of an aircraft which suffered “an unexpected flight safety shortcoming”.
16. I note at this stage that there have been two “unexpected flight safety shortcomings” within 24 hours. I also note that this is precisely the wording contained in Recital 14 of the Regulation which I have quoted above. He stated that another spare aircraft was at Berlin but the aircraft which was scheduled to operate from London Gatwick to Glasgow and then to Berlin back to Glasgow suffered from air traffic control restrictions and the spare aircraft at Berlin was used to operate the flight between Glasgow and Berlin.He finally stated that the Swiss Easy Jet plane was based in Geneva but was used to replace a Titan Airways aircraft which had suffered an “unexpected flight safety shortcoming” in Rome. Accordingly another airline experienced a problem of this nature. Although there was no mention made of a legal obligation to Titan it was stated that the Defender had already called upon Titan Airways to utilise one of their available aircraft to operate Easy Jet’s flights and when the Titan Airways aircraft suffered an “unexpected flight safety shortcoming” in Rome the Easy Jet spare aircraft was sent to Rome to operate the delayed flights.
17. He also stated that in the South East of England Easy Jet was forced to cancel 40 flights and a further 108 flights were delayed in excess of 3 hours.In addition other carriers such as British Airways, Monarch and Thomas Cook all suffered delays to the majority of their flights from London Gatwick.He claimed, “Save for having an unlimited amount of spare aircraft it would have been impossible for Easy Jet to avoid the delay to the flight as its programme (sic) significantly affected by the air traffic control restrictions on the London air traffic control zone on 28^th July 2014.“
18. Finally the witness dealt with the fact that the Civil Aviation Authority (CAA) had investigated the matter and had opined that since Easy Jet knew long before the departure time to Malaga about the disruption they could have taken measures to minimise the delay.He was of the view that CAA were effectively box ticking by taking the view that wherever there had been three flights operated prior to the flight in question they considered that the delay was not a proximate one.He criticised the CAA response as being a bold statement providing no rationale as to what measures Easy Jet could have taken.
19. Mrs Dunbar addressed me and stated that having 5 spare aircraft was less than 2% of the Easy Jet fleet and that this was insufficient.She was of the view that reasonable measures could have been taken with her flight.She referred me to the unreported case of Jager v Easy Jet.I have only been able to read the press reports in relation to that but it appears that this was a Cheshire County Court decision from England on 16^th September 2013 and provides that extraordinary circumstances affecting a previous flight does not provide an extraordinary circumstances defence in relation to later flights which are affected by the knock on effect.Mrs Dunbar referred me to her correspondence from the CAA and to their clarification of same.The CAA, as she pointed out, cannot force the airline to pay compensation but had found in her favour.She referred me to correspondence dated 8^th May 2015 from the CAA.The CAA’s Consumer Affairs Officer stated that the CAA had investigated matters and were of the view that the Defender could not rely on the “extraordinary circumstances” exception and that it was their opinion that the airline had not demonstrated it had taken appropriate measures to avoid or minimise the disruption. The CAA had stated that in their view although the underlying event may have been “extraordinary circumstances” they look at how far causally the passenger’s flight was from that and in addition whether the airline has demonstrated it took all reasonable measures to avoid the resulting disruption.
20. The Pursuer referred to the fact that the thunderstorms had happened in the early morning of 28^th July 2014 and that her flight was not due to depart until 16:55 albeit it finally departed at about 23:30.She referred me to the view taken by the CAA which bore to be based upon factors relating to the airline’s operations such as the contingency arrangements it has in place to deal with disruption, the makeup of its fleet, where the incident happened and the time of year and any other factors which have an impact on the ability of the airline to mitigate the disruption.
21. As well as both parties referring me to the regulation Mr Vaughanalso referred me to a number of authorities including Wallentin-Hermann v Alitalia-Linee Aeree Italiane SPA [2009] 2 CMLR 9, Jet2.com Limited v Ronald Huzar [2014] EWCA Civ 791 and British Airways Plc v Horstink and Snapper (Unreported, Liverpool County Court, HHJ Graham Wood QC, 19 February 2015).
22. I do not intend to go into these cases in a great deal of detail. They do provide authority, in both the Jet2 case and the British Airways case, that it is not for the court to look behind the air traffic management decision if it orders a delay and I respectfully agree with that. That in any event seems to me to be the position set out in Recital 15. Ultimately however in my opinion each case will turn on its own facts.
23. In making my decision in this case it appears to me that there is no doubt that the underlying delay here was caused by extraordinary circumstances in that the aircraft in question could not leave Gatwick.This was because of an air traffic control decision which itself seems to have been predicated upon a number of factors. It is clear from Recital 15 of the Regulation referring as it does to “the impact of an air traffic management decision” that it is not for the court to look behind whether that decision was correct or not. The fact the decision is made leading to a delay or cancellation is self-evidently “extraordinary circumstances”.
24. However I am of the view, as for what it is worth is the CAA, in the correspondence referred to, that there has to come a point where extraordinary circumstances cease to exist or at very least the longer between the circumstances causing the original delay coming to an end and the continuation of delays the weaker the extraordinary circumstances exception must be.In my view if there is a lengthy gap between the end of the air traffic management control decision preventing flying and delays coming to an end then the extraordinary circumstances exception will be too remote. I cannot however say that is the case here. The flight to Bologna was not cleared by air traffic management until well after 2pm and the Pursuer’s flight to Malaga was due to depart only 90 minutes later. I am of course not bound by the decision in Jager but if it says, as is reported, that “knock on” delays will not constitute extraordinary circumstances then I respectfully take the view that is too general.
25. I still however require to consider whether all reasonable measures were taken by the Defender to avoid the delay to the Pursuer’s flight since slightly strangely from a logical point of view although extraordinary circumstances may exist they are not deemed to exist in terms of Recital 15 of the Regulation unless the Defender also fulfils this criterion.
26. In this case in addition I note that a number of the available spare aircraft were prevented from being brought into use due to what are described as “an unexpected flight safety shortcoming”.Indeed I consider that deliberately or otherwise it is possible to be misled by paragraph 36 of Mr Trounson’s statement when he refers to “all these spare aircraft were already in use operating other delayed flights”.That may have been true but at least some of these delays were not in any way related to the problems at Gatwick.However contrary to what might be thought the reasons these other aircraft were in use, in the cases of the spare aircraft at London Gatwick, the spare aircraft in Milan Malpensa and the spare aircraft in Switzerland were due to “unexpected flight safety shortcomings” which I accept may have led to delays but these were not the delays caused by weather conditions in south east England.In short, as I understand it, without these “unexpected flight safety shortcomings” these aircraft would have been available to replace the aeroplane which was due to carry the Pursuer.I have been given no information as to what constituted these “unexpected flight safety shortcomings” and of course the witness was not available to ask about these.It is unhelpful to simply repeat a term in a regulation in this way without the slightest explanation and in the absence of clearer specification on this point I do not accept Mr Trounson’s evidence on this as reliable or having the necessary weight to discharge the onus of proof on the Defender.
27. In the circumstances whilst I am satisfied that while the original delay between Gatwick and Bologna was caused by extraordinary circumstances and that by the time of the Pursuer’s flight was due to depart the extraordinary circumstances continued to exist I am not satisfied that the Defender took all reasonable measures to avoid the delay meaning the limit or exclusion of liability set out in Recitals 14 and 15 is not invoked due to deemed extraordinary circumstances not existing.
28. Accordingly whilst I am satisfied that the cause of the Pursuer’s flight leaving 6 hours late was due to extraordinary circumstances I am not satisfied that everything reasonably possible was done bearing in mind the fact that the delay was known about for many hours. It must have been clear from at least 9am that the later flights involving the aircraft travelling from Gatwick to Bologna would be delayed in view of its tight schedule and the extent of the delay expanded throughout the morning and early afternoon. By the time the aircraft finally left Gatwick for Bologna the extent of the delay was very clear and the fact of a lengthy delay had been clear as the morning progressed. Despite this it was around 15 hours from the start of the delays before the Pursuer’s flight finally took off. I am not satisfied about the situation involving the back-up aircraft not being available due to “unexpected flight safety shortcomings” in three instances nor am I satisfied that other measures could not have been taken as the day went on to at least minimise the Pursuer’s delay such as using other aircraft which were not required as the day went on.
29. In passing I would comment that I considered Mr Trounson’s claim at paragraph 45 it would have been impossible for EasyJet to avoid the delay to the flight “save for having an unlimited amount of spare aircraft” to be a gross exaggeration.A few or at least a few more spare aircraft might well have sorted out this problem. My impression of his evidence was that it was somewhat slanted.
30. The fact that many other aircraft were also delayed at Gatwick that day does not in my view really affect matters.It has not been disputed by anyone in this case that there were delays at Gatwick.What I am not told however is whether these other airlines ended up leaving passengers, who were travelling from one unrelated airport to another unrelated airport waiting for 6 hours.
31. I also consider that whilst it may be that the Civil Aviation Authority’s view on the matter to the effect that Easy Jet could have taken more steps is not particularly specific in its terms it has to be borne in mind it is an industry body and has substantial knowledge of the industry.Furthermore paragraph 2 of its e-mail of 8^th May 2015 refers to having looked at contingency arrangements, the makeup of the fleet, where the incident happened, whether it was a peak or off peak time of the year and any other factors which would have an impact on the ability of the airline to mitigate the disruption.The view by the CAA is not in any way binding upon me and indeed it is more simply confirmation of my own opinion which is that the Defender, upon whom there is an onus, has failed to satisfy me that it took all reasonable measures to avoid the resulting disruption.
32. It did occur to me looking at the various times at which the aircraft took off that there might have been some room for reducing the waiting times at the various airports between arrival of the aircraft and departure but bearing in mind that that was not suggested to me, there was no discussion about it and I do not know what slots were available at the various airports I have had no regard to such a thought and in any event it would not have made any ultimate difference to whether or not the Pursuer was delayed for more than 3 hours.
33. In the circumstances I am granting decree for €400 being the sum sued for by the Pursuer.The Defender was not seeking expenses in the event of success whilst the Pursuer sought her warranting dues and I am granting decree for expenses of £73 in the circumstances.

Sheriff Derek Livingston

Sheriffdom of North Strathclyde at Paisley