Blanche v Easyjet Airline Company Ltd

An air traffic management decision which causes a long delay to a particular aircraft on a particular day is deemed to constitute extraordinary circumstances under article 5(3) of Regulation (EC) No.261/2004. The court ordinarily should not investigate the reason underlying that decision. The carrier must nevertheless prove a causal link between the decision and the claimed delay, and that all reasonable measures were taken to avoid the delay.

The references in Recital 15 to a particular aircraft and day identify the required causal connection. They do not confine the defence to a decision affecting only one flight. The defence may therefore apply to decisions affecting multiple flights or forming part of a series.

The claimant's flight from Brussels to London Gatwick arrived 5 hours and 42 minutes late. Thunderstorms had caused Gatwick air traffic control to suspend all eastbound departures, preventing the aircraft allocated to the claimant's flight from reaching Brussels on time.

The District Judge dismissed the compensation claim under Regulation (EC) No.261/2004. He found that the air traffic management decision amounted to extraordinary circumstances, was beyond the carrier's control and could not have been avoided by reasonable measures. HHJ Melissa Clarke dismissed the claimant's first appeal.

The Court of Appeal considered whether the court must examine the reason underlying an air traffic management decision before treating it as extraordinary, and whether Recital 15 applies when the decision affects multiple aircraft or comprises a series of decisions.

1. The appeal was dismissed unanimously. Recital 15 provides that extraordinary circumstances should be deemed to exist when the impact of an air traffic management decision causes a long delay to a particular aircraft on a particular day. Its prescriptive language differs from Recital 14, which gives only indicative examples of circumstances that may be extraordinary. Recital 15 is an aid to interpreting article 5(3) of Regulation (EC) No.261/2004 and does not conflict with its operative language: paras [14]–[19], [60]–[62].
2. The court need not investigate the circumstances underlying the air traffic management decision. Such an investigation would deprive Recital 15 of practical effect. The decision itself is deemed extraordinary when its impact causes the relevant delay. The carrier must still establish that it took all reasonable measures to avoid that delay: paras [15]–[16], [31]–[34].
3. The inherency limb formulated in Wallentin-Hermann for circumstances within Recital 14 does not apply directly to a Recital 15 case. That test concerned technical problems and required examination of their underlying causes. Recital 15 instead concerns a binding third-party decision which is deemed extraordinary: paras [36]–[39].
4. Alternatively, the carrier satisfied the Wallentin-Hermann test. The operative cause was air traffic control's prohibition, rather than the thunderstorms. The prohibition was an independent third-party decision, beyond the carrier's control and not inherent in its normal activity of operating flights: paras [44]–[49].
5. The words “a particular aircraft” and “a particular day” require the carrier to prove a causal link between the air traffic management decision and the delay for which compensation is claimed. They do not restrict Recital 15 to decisions affecting only one aircraft. A general restriction affecting many flights, or a series of decisions responding to a developing situation, may therefore qualify: paras [51]–[57].
6. A reference to the CJEU appeared unnecessary because the correct application of European Union law was clear and admitted of no reasonable doubt. The claimant was permitted an opportunity to reconsider the application after receiving the judgments: para [59].

1. Court of Appeal (Civil Division): The claimant's appeal was dismissed unanimously: [2019] EWCA Civ 69.
2. Oxford Combined Court Centre: HHJ Melissa Clarke dismissed the appeal from the District Judge on 29 September 2017. She held that the impact of the air traffic management decision was deemed to constitute extraordinary circumstances under Recital 15.
3. Luton County Court: DJ Richard Clarke dismissed the compensation claim on 21 September 2016. He also found that air traffic control was beyond the carrier's control and that reasonable measures could not have avoided the delay.