Court ruling makes it easier to claim compensation for a late flight, as airline industry is put under ever more pressure to pay up
A recent landmark ruling at the European Court of Justice (ECJ) means that passengers delayed by an aircraft technical fault will now be far more likely to receive statutory compensation.
How so? Well, Europe-wide flight delay legislation states that if your flight is delayed by more than three hours – or cancelled – you could be eligible for compensation. This could be more than £400 per person in some cases, unless the reason for the delay is considered to be an ‘extraordinary circumstance’ – in other words, outside the airline’s control.
The key issue has traditionally been precisely what constitutes a circumstance that is outside the airline’s control. Airlines have generally argued that technical faults are outside the control of the airline if they are discovered unexpectedly or spontaneously rather than through routine maintenance.
Now, though, the ECJ has ruled that Dutch carrier KLM must pay out over a ‘spontaneously’ discovered technical fault. This reaffirms a UK Supreme Court verdict from last October, which also ruled that technical faults couldn’t count as an extraordinary circumstance.
So while the travel trials and tribulations of the summer holidays might be over, flight delays are still big news. In fact they have been so at Resolver.co.uk for quite some time – over the course of the summer more than 30 per cent of cases raised via my free online complaint-resolution tool, meaning tens of thousands of you have been raising claims using our system.
My guide to making a claim for your flight delay:
If your flight is delayed by more than three hours, then you are potentially entitled to compensation depending on the circumstances.
Which flights qualify for compensation
– UK or European flight – Any flight that has a UK or European departure and arrival airport then depending on the cause you may be entitled to compensation
– International flight leaving UK/Europe – If you have an international flight that is delayed in reaching its destination by more than three hours and the destination is over 3500km, then depending on the cause of the delay you are entitled to compensation
– International flight arriving into UK/Europe -If your flight into the UK or Europe is delayed in reaching its destination by more than three hours and the departure airport was more than 3,500km away and you are travelling with an airline based in the UK or Europe then, depending on the cause of the delay, you can claim compensation
How long do I have to claim?
In theory you can claim back to 2005 for any compensation. However, in England and Wales going to court has a limitation of 6 years and in Scotland 5 years.
What countries are included in the delayed/cancelled flight regulations?
All EU member countries are covered by EU261 regulations, plus Iceland, Liechtenstein, Norway and Switzerland. If you are flying out of the European Union, the regulations are based on the distance of the flight. If you are flying into an EU airport, the carrier must be based within the EU.
Do you have to be an EU citizen?
No, the regulation covers all those flying, although we have heard that British Airways is trying to claim the regulations do not cover non-EU citizens.
What if my interconnecting flight is delayed?
If you have bought the tickets as a single booking, and your first flight is delayed, any compensation should be based on the delay when you arrive at your final destination. However, this area of the law is currently grey as there is no legal precedent to prove this point as yet. When is a delay counted from? Your flight delay is based on the scheduled arrival time. This is counted from when the doors are opened on the plane and not when it lands (as some airlines may claim). Which airlines are covered? All EU airlines are covered, plus international flights that are over 3,500Km leaving from or arriving into the EU.
For non-EU airlines, only flights leaving the European
Union that are over 3,500Km are covered by the regulations.
What is the compensation?
Compensation can be 250, 400 or 600 euros depending on the flight category:
Category 1: UK/European flights less than 1,500 km in
distance – 250 euros
Category 2: UK/European flights: 1,500 to 3,500 km in
distance – 400 euros
Category 3: International flights into/out of the EU
greater than 3,500km – 600 euros
Can you claim for delayed incoming plane, or late flight crew?
This is within the airline’s control and therefore you should be entitled to compensation. If the issue was caused by an issue outside of their control, provided the airline has done everything in their power to try and provide a plane, then they can argue that the delay is not their fault. As a result, these cases will be looked at by the airline on a case-by-case basis.
Can you claim for diverted flights? If the diversion was outside of the operator’s control, you cannot claim compensation.
Can you claim for bad weather?
This is outside of the airline’s control and you cannot claim compensation.
Can you claim for air traffic control delays?
This is outside of the airline’s control and you therefore cannot claim compensation.
What if the airline says no?
Designated Body
If your airline rejects your complaint, Resolver permits you to raise the issue with the relevant regulator under EC261. If you depart from a UK airport or land at a UK airport on an EU carrier (e.g. BA from New York to London), you send your case to the UK’s Civil Aviation Authority.
For all other flights your claim will go to a different regulator – we will tell you the right one for your case. The only instance we can’t do this is for those who flew on an EU airline from outside the EU to somewhere in the EU other than the UK (eg, KLM from New York to Amsterdam) – you can still use Resolver to go to the airline, but if your claim is rejected, Resolver currently escalates it to the wrong regulator.
Small Claims Court
The second is to take the airline to court, which you can do through the Small Claims Court using the Government online court called Money Claims OnLine or using a claims management company to submit your case. You can export your resolver case file and send the PDF copy to the Court as evidence.
Claims Management Company
These will take between 15% and 30% of your compensation to cover their costs and will manage your case for you. They may not take your case, however, as they tend to focus on low-effort cases. Our recommendation is to try to claim yourself to begin with – either directly or through resolver – before you use a claims management company.