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05 Oct 2014

EC 261: Court confirms English passengers may claim within 6 years of flight


Hot on the heels of its recent decision in Huzar v Jet2, the English Court of Appeal has handed down another passenger-friendly judgment. In James Dawson v Thomson Airways, the Court has confirmed that the limitation period within which passengers may bring EC 261 claims in England & Wales is six years.

The facts 

Mr Dawson's claim arose from a flight from London Gatwick to the Dominican Republic in 2006 which was delayed by 6 hours as a result of crew shortages caused by sickness. He sought compensation under EC 261 of €600 per passenger. Thomson accepted that it would have been liable to make the payment if the claim had been brought in time, but argued that the claim was out of time by virtue of the two year limitation period contained in Article 35 of the Montreal Convention, which governs the liability of air carriers.

Mr Dawson countered that the six year limitation period provided for in the Limitation Act 1980 should apply and therefore he was not out of time as he had commenced his claim just under six years after the date of his delayed flight. 

Court of Appeal judgment 

The Court of Appeal expressed some sympathy for the fact that the decisions of the European Court in IATA, Sturgeon and Nelson had imposed on airlines obligations that were inconsistent with the terms of the Montreal Convention. The Court recognised that the Montreal Convention was intended to exclusively cover all liabilities of carriers to their passengers by way of a strict liability regime, and that claims under the Convention were subject to a two-year limitation period. The exclusivity of the Convention regime has been upheld in various countries around the world, including by the UK's House of Lords (now the UK Supreme Court) in Sidhu v British Airways, and by the US Supreme Court in El Al Israel Airlines v Tseng.

However, notwithstanding these cases, the Court of Appeal found that the Montreal Convention provided an exhaustive code only in relation to matters falling within its scope, and it was bound to follow and apply the decisions of the European Court in the IATA, Sturgeon, Nelson and Moré line of cases. These cases examined the nature of compensation for cancellations and delays to flights under article 7 of EC 261 and its compatibility with the Montreal Convention, and found that compensation under EC 261 provided a "standardised and immediate redress for the inconvenience caused by delay and cancellation of flights which operates at an earlier stage than the Convention and is independent of it". Applying this reasoning, as EC 261 claims fall outside the scope of the Montreal Convention, the Convention's two-year limitation period does not apply, with the result that each claim falls to be determined by each EU Member State's national law. 

Accordingly, the Court of Appeal unanimously held that Mr Dawson had brought his claim within the English limitation period of six years, and he was awarded compensation.

What next? 

This judgment will come as little surprise to most, confirming as it does the European Court's decision in Moré v KLM, namely that Member States' national law determines questions of limitation in EC 261 claims. Indeed, many airlines have been allowing claims brought in England & Wales to date back six years. Therefore, for most airlines, this ruling will be nothing more than a restatement of the status quo. However, for those airlines which have been denying claims dating back more than two years, they may, in future, face a significant increase in liability for EC 261 claims. 

Thomson has already confirmed that it will be appealing the decision to the Supreme Court, and presumably will seek a stay of similar claims going back more than two-years pending the outcome of that appeal.