Today the UK Supreme Court handed down its decision in Lipton v BA Cityflyer, long awaited after almost 5 years of litigation, unanimously dismissing Cityflyer’s appeal.

Mr and Mrs Lipton were booked on a flight from Milan Linate Airport to London City Airport on 30 January 2018. The flight was cancelled because the pilot did not report for work due to illness and it was not possible to find a replacement pilot. The Liptons were rebooked onto a replacement flight and landed in London just over 2.5 hours later than scheduled.

The Liptons claimed €250 against Cityflyer under Regulation (EC) 261/2004 (EU261), which entitles passengers to compensation for cancelled flights. Airlines have a defence if they can show that the cancellation or delay was due to “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”. Cityflyer defended the claim on the ground that the pilot falling ill was an extraordinary circumstance. The Liptons’ claim was dismissed at first instance by a Deputy District Judge in the County Court, and that decision was upheld by the Circuit Judge on appeal. The Liptons then appealed to the Court of Appeal, which determined that the defence had not been made out and upheld the claim, with Lord Justice Coulson commenting “I am of the view that the consumer’s right to compensation under the Regulation cannot depend on when and where the member of staff ate the suspect prawn sandwich.”

Dismissing CityFlyer’s final appeal to the Supreme Court, the court holds that the pilot falling ill did not amount to an extraordinary circumstance within the meaning of EU261, thereby reaffirming the Court of Appeal’s decision on this point. Staff absence due to illness was, the Court held, a commonplace for any business, and was therefore inherent in the air carrier’s activity.

Interestingly, the Supreme Court was further invited to consider the issue of applicable law as the matter was originally decided in 2019 pre-Brexit, and then on appeal post-Brexit. Overturning the Court of Appeal, it confirmed that flights operated before the Implementation Period Completion Day (IPCD) on 31 December 2020 should be governed by the Regulation as it stood immediately before its transposition into UK law, and not as amended by the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2018 (known as UK261). The court was divided on the legal basis for this conclusion, but the competing rationales were obiter dicta, since both led to the same result.

Practically this means that for older flights, the UK courts may still have to apply pre-amendment EU261 for another 2.5 years before the limitation period precludes any further claims based on pre-Brexit flights.

The full judgment is available on the Supreme Court’s website.