There is a phrase in Northern Ireland, where I am from: “as clear as muck”, which is what comes to mind when attempting to fathom the meaning of the ‘extraordinary circumstances’ exception to compensation under the Denied Boarding Regulations (Regulation (EC) No. 261/2004). Reading the Court of Appeal’s decision in Jet2.com Limited v Huzar (‘Huzar’, [2014] EWCA Civ 791), it is clear that I am in good company.   

Whilst this appeal concerns fixed compensation for flight delay under the Regulations rather than personal injury it is of interest to travel law practitioners whose work encompasses both specialisms (as well as the numerous other international conventions engaged when holiday makers have accidents abroad).

Article 5(3) provides:

An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

Rather unhelpfully there is no definition of ‘extraordinary circumstances’ in the Regulations. The scope of the exception was analysed by the CJEU inWallentin-Hermann v Alitalia–Linee Aeree Italiane SpA (C-597/07, [2009] Bus LR 1016 ‘Wallentin-Hermann’). Insofar as technical problems are relied upon as exceptional circumstances, the European Court said that they must satisfy a two-fold test:

  1. The nature or origin of the event or events which cause the technical problem must not be inherent in the normal exercise of the activity of the carrier (limb 1); and
  2. It should be beyond its actual control (limb 2).

The Court of Appeal mirrored the sentiments of many when it said it found it difficult to discern how the two limbs interrelate. The Appellant summarised the composite test as follows: "events by their nature or origin are not inherent in the normal exercise of the activity of the air carrier because they are beyond its actual control." The Appellant’s test therefore emphasised control.

In contrast, the Respondent contended that the two limbs can be summarised as: "events by their nature or origin are not inherent in the normal exercise of the activity of the air carrier and therefore are beyond its actual control." Thereby focusing on the notion of what is inherent in the normal exercise of the carrier's activities.

The Court found that, focusing on the concept of ‘extraordinary circumstances’, technical problems are not out of the ordinary (the words used in McDonagh v Ryanair Ltd Case C-12/11, [2013] 2 All ER (Comm) 735) and therefore they do not satisfy the first limb as they are all inherent in the normal exercise of the carrier's activity (at [36]). If the Court needed to consider the two limbs together, it adopted the Respondent's formulation (at [47]).

This decision appears to have closed the door on extraordinary circumstances defences raising purely technical difficulties.