Thousands of airline passengers face flight delay payout disappointment as landmark court case gets underway
By ADAM UREN
PUBLISHED: 11:01 GMT, 14 May 2014 | UPDATED: 15:58 GMT, 14 May 2014
Thousands of airline passengers could be denied compensation for flight delays should Thomson win a landmark ‘test case’ in court, which is being heard today.
The package holiday firm has appeared before the Court of Appeal in London this week as it seeks the blessing to use a legal loophole revealed by This is Money last year to deny customers who have waited over two years to make their compensation claims for delayed or cancelled flights.
Should Thomson be successful in its appeal against a county court ruling made last year, it could potentially see all UK airlines restrict their time limits on compensation claims, freezing out thousands of passengers.
Case: Thomson wants to limit claims for flight delay compensation to within two years of a flight’s arrival.
The airline has chosen to use international law under the Montreal Convention to deny customers who fail to apply for compensation within two years of their flight.
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Thomson and Jet2 are the only airlines in the UK known to use this rule, with the remainder of UK airlines – including British Airways and Virgin Atlantic – willing to pay compensation for flight delays dating back six years under statute of limitations laws.
The case arose when Peterborough resident James Dawson applied for compensation from Thomson in December 2012 under compensation rules set out by European Commission ruling 261/2004.
Challenge: 40-year-old James Dawson took Thomson to court after it denied his flight delay claim.
He made the claim within six years of his holiday to the Dominican Republic in Christmas 2006, with his flight out to the Caribbean from Gatwick delayed by eight hours.
Airlines do not have to pay compensation if there are extraordinary circumstances – such as extreme weather or industrial action – which caused the delays, but the reason the flight was delayed was that there were insufficient crew to man the flight, which is not a reason for rejection.
Both Thomson and Bott & Co – representing Mr Dawson – have made submissions to the court in the past two days, though it could take weeks before a judgement is passed due to the complexity of the case.
Causing this complexity is the fact that there are two separate laws relating to flight delay compensation that are recognised by both the English courts and the European Union: EU 261 and the Montreal Convention.
EU 261 sets out fixed levels of compensation for flight delays, of up to €600 for delays of longer than three hours, while the Montreal Convention has provision for ‘damages’ to be paid in the event of delays.
Where the laws significantly differ is the time limits for claims, with EU 261 stating that the limit should be dictated by English law, which courts have thus far interpreted to mean the six years statute of limitations rule (five in Scotland).
But Thomson contends that as the Montreal Convention is also enshrined in English law, then the two year limit stated within it is the appropriate time limit.
Robert Lawson QC, representing Thomson, said in court yesterday: ‘The critical question in relation to this issue of time limits is whether or not a claim for article 7 [of EU 261] compensation for a qualifying long delay is within or outside the scope of the Montreal Convention as a matter of English domestic law.’
Coby Benson, of Bott & Co, had this message for delayed passengers: ‘Following this case, passengers will know with far more certainty whether they are entitled to compensation.
‘Regardless of the outcome of this case, the message for consumers remains the same and that is for anyone who has suffered delays to make their claim as soon as possible after it happened as it makes it easier to access information.’