Hayward Baker are once again headed off to the Court of Appeal this time over the scope of the Air Passenger Rights Regulation EC261/2004.
In Chelluri v Air India Ltd the Claimant, Ms Chelluri, was delayed on the third leg of her journey from Heathrow to Mumbai. Ms Chelluri had 2 earlier flights with Delta airlines. On arrival into London however Ms Chelluri had to proceed through immigration, leave the terminal she was in and travel to another terminal, check in separately for the flight with Air India, including checking in her luggage all over again with another airline – Air India.
It was Ms Chelluri’s case that there was a natural break between the flights with Delta and the flight with Air India. As a result the Regulation applied to her flight with Air India as it was departing from a country where the Regulation applied. As such her third leg was delayed by nearly 48 hours and she sought compensation in accordance with Article 7 of the Regulation for 600 euros.
It was Air India’s position that a break in the journey was not relevant. They argued it was whether the booking was all made together on a single booking and if so this constituted a directly connecting flight and relied on the CJEU case of Wegener to support their arguments. On this analysis the Regulation would not apply as all 3 legs would have to be looked at together and the Regulation only applies to either flights leaving from the EU (now the UK too following Brexit) with any carrier, or flights coming into the EU providing they were operated by an EU (now UK as well) airline. Neither would apply to Ms Cherulli as the first flight was an internal US flight operated by a US airline so the whole journey would fall outside the scope of the Regulation.
This analysis would lead to peculiar results. In the present case, providing the other passengers started their journeys out of London, they would all be entitled to compensation for a significant 48 hour delay, whilst Ms Chelluri could feasibly be the only passenger not entitled to compensation nor the other protections afforded to passengers in the Regulation such as overnight hotel accommodation, food and refreshments.
The claim was successful at the first County Court hearing but overturned on appeal by Air India.
Ms Chelluri sought permission to appeal from the Court of Appeal which was granted by Lord Justice Coulson. In allowing the appeal LJ Coulson argued:
“In my view, the Claimant/Appellant’s appeal against that decision has a real prospect of success. There is no binding decision of this Court on what does or does not constitute a single flight…The precise scope and application of the CJEU decision in Wegener is not entirely clear…
I should say that I am in no doubt that there is another compelling reason to grant permission to appeal. Delays to one leg of a longer journey frequently arise, and the effects can be particularly damaging. Thus the question of what is or might constitute a “flight” (and indeed if that is even the right term) raise an important and wide point of principle”
The Court will hopefully also consider differing scenarios. For instance what if the flights are made on separate bookings but with the same or differing airlines? What about if someone books a clear stopover? So they leave from London to Australia but stop off and spend a few days in Singapore to break up the journey. It would seem odd that the second leg would still apply just because it was on one booking.
The appeal is not likely to be heard until the end of the year but cannot come soon enough for passengers affected by the Regulation. Clarity and certainty is needed and will hopefully be given by the Court of Appeal so consumers will finally know definitively whether their “flight” is covered by the Regulation or not.
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If your flight has been disrupted due to a delay or cancellation you may have the potential to make a claim under the EU Regulation 261/2004 for compensation. This could be up to €600 per person. Contact Hayward Baker on 01329 227 983 or complete our On-Line Form today to discuss the potential for a claim.
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