We hope that our readers will, like the team, have returned to work much refreshed and raring to go after the Easter Bank Holiday break. The 1CL Easter Egg Hunt was a predictably competitive affair, of course, but we were able to prise ourselves away from the consumption of our own body weight in chocolate to make a note of the recent American case of Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela, No. 20-129 (D.D.C. Feb. 1, 2021), in which the District Court for the District of D.C. found that for the purposes of service under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (known to us as the Hague Service Convention) it is sufficient for proceedings to be delivered to the designated Central Authority abroad, even where the latter does not in fact serve them and no certificate of service is ever completed. The case was unusual in that the Defendant was the Republic of Venezuela itself, relying on the failing of one arm of government to serve proceedings in defence of an application for judgment in default against another arm of government. However, it is a reminder that, post Brexit, practitioners in the cross border field will need to get to grips with the Hague Service Convention and the international body of caselaw that interprets it.
Closer to home, the Department for Transport has announced that it is to consult on measures to regulate jet skis amid mounting concerns over a rise in aggressive behaviour, noise, and the threat of injury posed by them to swimmers, paddleboarders and wildlife. Apparently the government is considering classifying jet skis, some of which can reach speeds of almost 70mph, as vessels, which would require owners to register them and also subject users to maritime criminal law, allowing them to be prosecuted for negligence, endangering others, causing accidents and being drunk whilst operating them. This proposal may be welcomed by those who campaign for greater regulation of what are potentially lethal vehicles, but it should also ring alarm bells with anyone seeking to litigate in the civil courts in cases arising out of the use of them; as we always say at 1CL, if it floats or flies, treat it with enormous caution.
Staff illness and extraordinary circumstances: an analysis of Lipton & Anor v BA City Flyer Limited  EWCA Civ 454 (CA)
Since EC Regulation 261/2004 (“the Denied Boarding Regulation”) was implemented, there has been much litigation surrounding the meaning of ‘extraordinary circumstances’. The extraordinary circumstances exception under Article 5(3) does not oblige air carriers to pay compensation if a flight cancellation is caused by extraordinary circumstances which could not have been avoided, even if all reasonable measures had been taken.
It is unsurprising that litigation continues to ensue to determine whether an air carrier is obliged to pay compensation to passengers under the Regulation, since if an event is not deemed to be an extraordinary circumstance, hundreds, if not thousands, of passengers may be eligible for compensation. Recently, the issue of staff illness and extraordinary circumstances was explored by the Court of Appeal in Lipton & Anor v BA City Flyer Limited.
The Appellants were booked on flight BA7304 from Milan to London City Airport, operated by the Respondent. The flight was scheduled to depart on the 30th January 2018 from Milan, at 17.05 local time, and was to arrive at London at 18.05 local time.
The captain of the flight had reported feeling unwell at 16.05 local time, before arriving at work. He was thereafter determined to be unfit to fly. The flight was subsequently cancelled, as there was no replacement captain available. The decision to cancel the flight was not taken until 18.07 local time. Consequently, the Appellants were re-booked onto another flight and arrived in London 2 hours and 36 minutes after their scheduled arrival time.
The Appellants brought a claim for compensation pursuant to the Denied Boarding Regulation. The matter first came before DDJ Printer on the 26th June 2019, who determined that the Respondent had made out that the cancellation of the flight was due to extraordinary circumstances, pursuant to Article 5(3) of the Regulation. The Appellants appealed that decision.
The appeal came before HHJ Iain Hughes QC, who handed down a written judgment on the 11th February 2020, dismissing the appeal. Whilst he noted that there was no binding authority dealing with flight cancellations due to crew illness, he said that what mattered was “what brought about the captain’s illness, not the captain’s illness itself”. HHJ Iain Hughes QC considered that DDJ Printer answered that question correctly and that the illness amounted to an extraordinary circumstance. The Appellants again appealed that decision.
The Court of Appeal
The appeal came before Lord Justice Coulson, Lord Justice Haddon-Cave, and Lord Justice Green.
It was accepted that it was the Respondent who had the burden of proving that the captain’s non-attendance due to illness was an extraordinary circumstance. The Respondent submitted that the Court’s investigation should not stop with the discovery that the pilot did not attend due to illness, but should extend to investigation when, why and how he became unwell. The Respondent however accepted that if the captain had become unwell once he was at work, there would be much greater difficulty in relying upon the Article 5(3) exception. The Appellants conversely argued that the Court was neither obliged nor equipped to undertake such a granular analysis of causation, and that the issues of when, why and how the captain became unwell were irrelevant.
The Court found against the Respondent and set out six inter-linked reasons as to why the Respondent had not made out their case.
Ordinary meaning of words
The phrase ‘extraordinary circumstances’ in Article 5(3) was to be given its usual meaning in everyday language (Wallentin-Hermann). Essentially, ‘extraordinary circumstances’ means exactly that – something out of the ordinary, which staff illness was not. Further, that straightforward reading of Article 5(3) took account of its purpose, namely to provide a high level of protection for consumers.
Consistent with the Authorities in respect of Staff Absence
The Court noted that staff absence was not a factor listed in Recital 14. Moreover, there was no authority to support the notion that staff absence due to illness was an extraordinary circumstance.
Whilst there was an attempt by the Respondent to distinguish this case from that of Krüsemann (in which a ‘wildcat strike’ was not deemed to be an extraordinary circumstance), the Court did not accept that the nature of the strike made any difference to the outcome of Krüsemann, nor did they consider that the case at hand required further investigation like in Krüsemann, as staff absence did not fall within Recital 14.
Consistent with the Authorities in respect of Technical Defects
The Court went on to draw an analysis with those cases concerning technical defects in aircraft, stating that “wear and tear of the aircraft and its component parts is not extraordinary; the wear and tear on people, manifesting itself in occasional illness, should not be regarded as any different”. The Court did not accept that this was a dehumanising approach, as had been suggested by the Respondent, and said it simply reflected the reality that an air carrier depended just as much on its human resources, as it did on aircraft.
Consistent with the Authorities in respect of External or One-Off Events
The Court contrasted the case at hand to those cases where there were rare or infrequent events, such as petrol spillages closing a runway, foreign objects on the runway, and unruly passengers whose conduct was so bad that flights had to be diverted. Those were events that did not fall within a carrier’s normal everyday activity, unlike the mundane circumstances in the appeal before the Court.
The Court rejected the Respondent’s submission that the Court should not have regard to the frequency of the particular event when applying the inherency test. The Court considered that frequency will sometimes to be relevant as to whether an event is considered to be out of the ordinary. However, frequency is not determinative, but will not always be irrelevant.
Inherency and the Relevance of Off Duty Events
The Court considered that a pilot is critical to an air carrier’s activity and operations, such that his or her attendance at work is an inherent part of the carrier’s operating system. Non-attendance is therefore inherent in the normal exercise of the activity of the air carrier. The Court considered when, why or how illness occurred was irrelevant.
Too Granular An Investigation
The Court noted that many of these claims were assigned to the Small Claims Track, and that the vast majority could be determined on the papers. In those circumstances, it was contrary to the scheme of the Regulation to allow the carrier to embark upon a complex analysis as to when, how and why a staff member became unwell. In any event, there would likely be an absence of medical records. If such a complex analysis took place, a consumer would be expected to address and meet an argument based on the say-so of third parties, with whom that consumer would never come into contact.
It remains somewhat surprising that the lower courts considered that staff illness was ever an extraordinary circumstance at all. There is nothing inherent in the nature of staff illness that can truly be said, in this author’s opinion, to be extraordinary. In addition, the suggestion that an investigation or analysis was required exploring when, why or how an illness occurred over-complicates what are often in reality straightforward low-value small claims.
Nonetheless, the Court of Appeal’s judgment has provided welcome clarification to the interpretation of the Regulation. However, there will no doubt be further litigation in this area in the future.
About the author
Ranked by the Legal 500 2021 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.
We at 1CL are as ethical a bunch as any group of barristers who ever brought a claim for gastric illness, and so it was with great sorrow that we learned of the medicolegal expert who has been struck off after accepting instructions solely from a firm where his wife was a salaried partner. In dismissing his appeal from the Medical Practitioners’ Tribunal Mostyn J held that he had dishonestly and deliberately written ‘formulaic’ reports diagnosing food poisoning in Claimants represented by the firm, failing to disclose the relationship either to the Defendants or to the court. Between 2016 and 2017 the expert wrote reports in 684 cases and was paid £180 for each. A total of £123,120 was paid into a service company, of which he held 55% and his wife 45%. Perhaps unsurprisingly the court was unimpressed with his submissions that no conflict of interest arose and that the ban imposed by the MPT was unduly harsh; the findings of the MPT were made, so the court held, ‘as night follows day’.
More in sorrow than anger, the author respectfully observes that this was the inevitable result of a course of conduct which cannot be interpreted as being anything other than ethically highly dubious. Having been the unwilling witness to the implosion of a number of experts on the witness stand, it is suggested that the selection of an appropriate expert who fully understands the nature of the expert’s duty to the court is of the highest possible importance, perhaps now more so than ever.