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European air delay compensation: 6 years or 2 years to claim?


As discussed on our website previously, we have explained that European regulations give rights of compensation and assistance (“care”) to international passengers departing Europe in the event of denied boarding, flight cancellation and delay.

Claims for compensation for delay, while strictly not set out in the European Regulation (EC 261/2004), are inferred following decisions of the European Court of Justice: Sturgeon v Condor Flugdienst GmbH and Bock v Air France  [2010] Bus LR 1206.  In those cases, the Court held that a delay was long enough to be assimilated into the provisions for compensation for cancellation if it was longer than 3 hours.

By virtue of those decisions, Mr James Dawson made a claim for a delay of 6 hours on a flight from Gatwick, London to the Dominican Republic on Christmas day in 2006.  The Defendant, Thomson Airways Ltd, asserts that it would be liable for compensation for the delay if the claim had been brought within 2 years of the date of travel, that being the period of time allowed for claims under the Montreal Convention for compensation for delay in international air transport.  Mr Dawson argued that his claim is governed by the United Kingdom’s Limitation Act 1980 which provides for claims to be brought within 6 years.

On 29 July 2013 Judge Yelton in the Cambridge County Court decided that pursuant to the judgments in previous cases of the European Court of Justice which say that EC 261/2004 is valid as a passenger remedy outside the Montreal Convention, Mr Dawson’s claim cannot be bound by the 2 year limitation period of claims which fall within the ambit of the Convention.  As such, there is a 6 year period within which such claims under EC 261/2004 can be brought.

The Defendant’s grounds of appeal focus closely on the general nature of which limitation period should apply (and arguing that the UK law which incorporates the Montreal Convention into UK law should be applied in such instances, thus making 2 years the outside time limit for delay compensation claims under EC 261/2004).

The appeal is expected to be heard in the Court of Appeal in London in May 2014.

What is the significance of the decision?

It is clear that, notwithstanding how the Court of Appeal in the UK decides this case, it is accepted by airlines that such claims for delays of longer than 3 hours can be made by passengers up to 2 years after their travel date. This means that passengers who suffered 3 hour plus delays on international flights from the UK or elsewhere in Europe may be owed compensation for their delays from up to 2 years ago, and not be aware of it.

However, if the appeal in Dawson’s case is dismissed, this will mean that passengers, including Australian passengers, who depart the UK with over 3 hour long airline delays, will have a standardised right to compensation from their airline of up to €600 (approximately AUD$900 or £500) including for delays which occurred as long ago as 2008.  This right would co-exist with their rights under the Montreal Convention, for proven financial losses arising out of the delay.

The decision would mean that Australians, who have experienced a delay in the UK particularly, but also from other European cities, could be owed up to AUD$900 in compensation from their airline without being aware of it.  For example, there is case law from Spain which suggests that delay compensation was payable in accordance with its limitation period rules (10 years in Spain) rather than under the 2 year limit in the Montreal Convention.

Shine Lawyers Aviation Department is monitoring the appeal to be able to advise Australians and others who travel or have travelled to and from Europe.  If you need help making a claim for a delay, contact us today.

Written by Shine Lawyers. Last modified: September 26, 2018.

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