Airline Passenger Rights - BBC interview Simpson Millar’s Travel Expert


Simpson Millar Solicitors Travel Law expert Nick Harris was interviewed in a live broadcast by Paul Lewis on BBC Radio 4’s Moneybox show on Saturday.

Nick, who is the firm’s Head of International Travel Law, was invited onto the show to speak about passenger rights following the Icelandic volcanic ash incident that has caused unprecedented disruption to millions of Britons travel plans.

Here Nick repeats some of his advice to passengers affected by the disruption.

What is the airline’s responsibility?

This will depend whether your carriage is protected by EC Regulation 261/2004.

The Regulation provides passengers with legal rights and places duties on airlines when flights are delayed or cancelled. These rights vary depending on whether a flight is delayed or cancelled.

When a flight is delayed by more than two hours or is cancelled airlines have a legal obligation to provide assistance to passengers and unless the delay or cancellation is due to ‘extraordinary circumstances’ to pay passengers compensation.

The Icelandic volcanic ash incident would seem to fall within the objective interpretation of an extraordinary circumstance – eg "meteorological conditions incompatible with the operation of the flight"

The EC Regulation only applies to (1) passengers flying from an EU airport or (2) to passengers departing from an airport outside the EU but returning to an airport in the EU providing that the airline is based in the EU.

A problem has arisen during the recent disruption due to the unhelpful drafting of the EC Regulation. Whilst the Regulation defines precisely what a ‘delay’ is it does not define what a ‘cancellation’ is or when a delay becomes a cancellation. Many airlines were claiming that the flights were delayed rather than cancelled leading to confusion.

As a rule of thumb if a flight number changes this is an indication that the flight has been cancelled.

The European Court of Justice has given some guidance to what a cancellation is. For example airlines can no longer claim that a ‘technical fault’ is an extraordinary circumstance and the Court has gone further to say that despite there being no express provision within the Regulation to compensate passengers for delay, passengers are now entitled to compensation pursuant to Article 8 of the EC Regulation (re-routing or reimbursement) for any delay in excess of three hours – unless the airline can raise a defence of an ‘extraordinary circumstance’.

One issue that may arise from the volcanic ash incident is that a number of airlines continued to sell tickets to passengers when it became reasonably foreseeable that the flights being sold would be cancelled or delayed by the circumstances which at the time the tickets were sold were prevailing circumstances and arguably no longer extraordinary.

In these instances passengers may have very strong cases for additional compensation from their airline according the prescribed scale in the EC regulation which ranges from between 250 – 600 Euros per ticket depending on the length of the flight and place of departure.

If you feel your airline has treated you unfairly report your complaint to the Air Transport Users Council (AUC). The AUC is a consumers’ council appointed by the Department of Transport. The AUC monitor complaints and help resolve disputes between passengers and airlines. The AUC reports consistent breaches of the EC Regulation to the Civil Aviation Authority who act as the UK’s enforcement body.

Can I claim back my expenses?

Yes. You can claim back your ‘reasonable’ expenses from your airline if your carriage is protected by EC Regulation 261/2004.

Again the EC Regulation is inadequate as it does not deal with the situation where an airline does not provide assistance and the passenger is left to pay their own expenses. However, the failure by the airline to fulfil its legal obligations will be in the majority of cases sufficient to encourage the airline to reimburse reasonable expenses.

Most airlines are currently displaying information on their websites about how to make a claim for expenses. Some airlines websites are providing downloadable claim forms.

You must keep all your receipts and proofs of expense. Your airline will ask you for proof of your expenses before it will pay them.

You will only be entitled to claim back your ‘reasonable expenses’. These could include expenses incurred for basic meals, hotel accommodation if your return home was delayed by one or more nights and transport fares to and from the airport and to your hotel.

Your airline is unlikely to pay you any ‘unreasonably incurred expenses’. For example unreasonable expenses could include the cost of extravagant meals, alcoholic beverages and, for example, high class hotel accommodation when adequate accommodation was available. In these situations your airline is only likely to make a contribution towards your expenses.

The expenses problem now faced by many people should have been avoided if airlines had complied with their legal obligations when it became known to them that flights would be severely disrupted.

The EC Regulations state that when a flight is cancelled or delayed by more than two hours passengers must be given a written notice setting out their legal rights to compensation and assistance. This notice must also provide details of the national body charged with enforcing the Regulations.

Under the EC Regulation airlines must provide assistance to passengers whose flights are delayed or cancelled. This assistance includes meals and refreshments, hotel accommodation and the use of telephones, faxes and email facilities.

If your flight has been cancelled or delayed and you have declined an offer to be re-routed you have a legal right to be reimbursed in full by no later than 7 days the full cost of the ticket and/or the total cost of the flights if there is more than one if the flights no longer serve any purpose in relation to your original travel plans.

Can I make a claim against my tour operator?

Yes. If your holiday was a ‘regulated’ package your tour operator is responsible for the services that make up the package. So your tour operator is responsible to pay your reasonable expenses which it then can recover from the airline.

If your holiday was a ‘package holiday’ – a pre-arranged holiday comprising of transport and accommodation covering more than 24 hours and purchased at an inclusive price you may have additional protection under the Package Travel Regulations 1992.

My advice is that you should speak to your tour operator and find out about their procedure for reclaiming your expenses. You should put your request in writing or by email.

If your tour operator is a member of the Association of British Tour Operators (ABTA) they must acknowledge your correspondence within 14 days and provide a full response within 28 days or they will be in breach of ABTA’s Code of Conduct.

Should you not receive a reply from your tour operator or you are unhappy with their reply you should contact ABTA for advice and, if appropriate, they will take up your case on your behalf.

ABTA can also provide details of their arbitration scheme which is a low fixed cost scheme designed to resolve disputes between consumers and tour operators.

AITO (The Association of Independent Tour Operators) also offer advice and operate a similar arbitration scheme.

An interesting point that may arise where airlines have provided accommodation during the disruption is whether this triggers further potential liability. It could be contended that although the initial contract was for flights only the airlines subsequent supply of accommodation at no extra cost to the passenger may then be enough to render the contract one that would fall within the definition of a regulated package tour as defined by Regulation 2 of the Package Travel Regulations 1992.

It could be submitted that the airline supplied flights and accommodation at an inclusive price for a period of time lasting more than 24 hours. The issue would be whether the flights and accommodation could be construed as having been pre-arranged. Arguably the EC Regulation requires accommodation to be supplied when flights are delayed or cancelled and consequently this provision of accommodation is contractually a pre-arranged term implied into every contract for carriage by air when the EC Regulation applies.

The value of this is if, for example, a passenger is injured at a hotel supplied by the airline through no fault of their own. On the proper constructions and interpretation of the Package Travel [Etc] Regulations 1992 the passenger could have a potential right to recourse from the airline if the passenger sought to rely on Regulation 15 of the Package Travel [Etc] Regulations 1992 – which imposes liability on organisers of package holidays and tours for the negligent acts and omissions of their suppliers/sub-contractors.

What if my insurer won’t pay?

Strictly speaking the terms of your insurance contract are binding.

Some travel insurers have been making ex-gratia payments whilst others are relying on the terms of their policies which often exclude liability for acts of god, unforeseen weather conditions, etc. Others have been assessing claims on a case by case basis whilst others limit their liability to pay compensation to inadequate sums.

In general the position is far from satisfactory and different rules are being applied depending on whether the flight was delayed or cancelled.

Insurers must ensure that the terms of a contract of insurance are absolutely clear. Therefore, where terms concerning passenger rights are uncertain the rule that is generally followed is that of contra preferentum where any ambiguity is construed in favour of the consumer.

My advice is to initially speak to your insurer and find out exactly what their position is. If you are unhappy with the outcome then your insurance policy must be law contain a complaints procedure. Follow your insurer’s complaints procedure. If, after receiving the insurers response you remain unhappy then again by law your policy must contains information about how to make a complaint to the Financial Services ombudsman.

Can I make a claim against my Credit Card Provider?

If you have purchased your flights using a credit card, not a debit or charge, card and the cash price of your flights was more than £100 then Section 75 of the Consumer Credit Act 1974 operates to make your credit card jointly and severally liable to you for any breach of contract or misrepresentation by your airline.

Notably you only have to pay part of the cash price using your credit card.

If you decide to pursue your credit card provider then you must have a ‘like’ claim. So if you have a valid claim against your airline you also have the same claim against your credit card provider.

My advice to anyone who is having difficulty recovering their expenses from their airline or insurer is to consider making a claim against their credit card provider.

This will be most relevant and in my opinion appropriate where, for example, the airline concerned does not have a registered UK office but has an office in the EU or EEA. It will be far more straightforward to pursue your credit card company here in the UK.

Making a claim invoking Section 75 is quite straightforward. Speak to your credit card provider and ask to be put through to their Section 75 Consumer Credit Act Claims Department. Ask to be provided with information about how to make a claim.

If you have purchased flights using a credit card but the aggregate cash price is less then £100 there is still a possibility, albeit untested, you may be entitled to claim back your expenses.

Here you would argue that the price of the flights and your expenses was the total aggregate cash price.

This would be analogous to a situation where a credit card was used to pay a deposit with the undetermined balance to be paid at a later date. Under the contract for carriage your reasonable expenses constituted a term of your contract with the airline for assistance pursuant to Article 9 of the EC Regulations which the ticket price was a deposit and the balance being your undetermined expenses or outlay for the services set out in Article 9 – namely assistance by way of meals and refreshments, hotel accommodation and the use of telephones and emails.

Where can I get free legal advice and help?

Many passengers will face an uphill battle to recover their expenses. What passengers perceive as their ‘reasonable expenses’ are likely to be poles apart from what airlines perceive as ‘reasonable expenses’.

  • The Air Transport Users Council (AUC) provides a free advice service to passengers making complaints about airlines. The AUC’s website provides information about your legal rights and offers a telephone advice service;
  • The Civil Aviation Authority (CAA) also provide very good advice on their website;
  • If you have legal expenses protection as part of your home insurance policy, credit card service or other then speak to your insurer. Many people do not realise they have access to free legal advice and assistance. Your legal protection may include access to legal advice and representation at no cost to you and generally it does not affect your premiums or entail a policy excess;
  • If you are a member of a trade union your union membership may provide access to free legal advice;
  • If you are a member of a professional body such as the Police Federation you may have access to free legal advice as part of your membership;
  • Your local Citizens Advice Bureau will be able to provide you with information about your legal rights and redress;
  • Your local Trading Standards Department will be able to advise you and, if appropriate, take on your case;

Should I take my case to court?

This depends on you and should be the last resort once you have exhausted all other means available. Courts like to see that people have acted reasonably.

The Small Claims Court provides a low cost means of pursuing a claim through your local county court. The service is designed for lay people claiming up to £5000.

Most people are nervous about making a claim through the courts. The Small Claims Track is intended to be less formal and most disputes are simply settled around a table.

Typically you will not pay your opponents costs even if you lose your case so often making a small claim will put pressure on the other side to settle your claim out of court simply because the cost of defending it may cost more.

Your local county court will provide you with an easy guide to making a small claim.

If you do intend to make a small claim you should check that your opponent has a registered office in the UK.

If your opponent does not have a registered office in the UK there are Regulations which will enable and assist you to pursue your claim in another EU member state or EEA country. Again your local county court or Citizens Advice Bureau will be able to provide you with information about making a claim if your opponent does not have a registered UK office.

As a final point your contract for carriage may allow for the law of England and Wales to be applied. You could claim that by failing to comply with the EC Regulation the airline did not act reasonably and consequently failed to exercise reasonable skill and care contrary to section 13 of the Sale and Supply of Good and Services Act 1982.

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