Lipton & Anor v BA Cityflyer Ltd

Appellant

Akhil Shah KC

Nicolas Damnjanovic

(Instructed by Norton Rose Fulbright LLP)

Respondents

Michael Rawlinson KC

Max Archer

Daniel Isenberg

(Instructed by Irwin Mitchell LLP (London))

Intervener - Civil Aviation Authority

Kevin De Haan KC

Michael Coley

(Instructed by The Civil Aviation Authority)

Lord Sales and Lady Rose (with whom Lady Simler agrees):

1. INTRODUCTION

1. Mr and Mrs Lipton were booked onto a flight operated by the appellant ("Cityflyer") scheduled to depart from Milan Linate Airport at about 5 pm on 30 January 2018. They were supposed to arrive at London City Airport just after 6 pm local time. The flight was cancelled because the pilot reported that he was unwell shortly before the flight and it was not possible to find a replacement in time. The Liptons were rebooked onto another flight and arrived at London City Airport at about 8:45 pm that evening, just over 2.5 hours later than they expected. The Liptons put in a claim for compensation for €250 (about £220) but Cityflyer has refused to pay.
2. From this all too familiar tale of frustration and annoyance arise two important legal issues which have made their way up through the several tiers of the court system to occupy a full day of argument before this court.
3. One of those legal issues, raised by Ground 1 of this appeal, is directly related to the facts of this case. The Liptons' claim was made under Regulation (EC) 261/2004 of 11 February 2004 ("Regulation 261") which confers a right on passengers to compensation for cancelled flights. Regulation 261 provides the airline with a defence if it can show that the cancellation was the result of "extraordinary circumstances". Ground 1 raises the question of what is meant by that term and whether the pilot's illness which caused the cancellation of the Milan flight counts as an "extraordinary circumstance" or not.
4. The second issue is potentially of much broader significance. Between the date of the cancelled flight and the date of the hearing of the Liptons' claim before the Court of Appeal, the United Kingdom left the European Union. The second issue is what effect, if any, that had on the Liptons' ability to recover compensation by pursuing the right that was conferred on them by Regulation 261 whilst the UK was still an EU Member State. That issue forms Ground 2 of the appeal now before the court.

2. THE FACTS IN MORE DETAIL

5. Cityflyer is an airline. It is an "operating air carrier" within the meaning of Regulation 261.
6. The Liptons were booked on the Cityflyer flight due to depart from Milan at 17.05 local time on 30 January 2018 and to arrive the same day at London City Airport at 18.05 (local time).
7. At 16.05 local time in Milan the captain of the aircraft for the flight reported that he was unwell. At that time he was not yet on duty and was not at his place of work. He was told to speak to a…