In October 2017 we covered the joined cases of Gahan -v- Emirates and Buckley and Ors -v- Emirates  EWCA Civ 1530, in which the UK Court of Appeal ruled that Emirates (a non-EU carrier) was liable to pay compensation to passengers who had missed their connecting flight between non-member states, where they had suffered a delay of over three hours upon arrival at their final destination. The rationale behind this decision was that the first leg of the passengers’ journey departed from an EU member state and that the directly connecting flights should be considered together to determine whether liability was triggered under EC Regulation 261/2004.
On Friday, the UK’s Supreme Court refused permission for Emirates to appeal the Court of Appeal’s decision handed down on 12 October 2017, on the basis that they had not raised an arguable point of law.
The outcome of this decision means that Emirates will be expected to compensate passengers with valid claims, including any claims previously denied prior to this decision. If it does not, the Civil Aviation Authority (CAA) has confirmed that it will be commencing enforcement action against Emirates, which will include seeking amendments to its current policies in place for connecting flights where they originally depart from EU member states.
In contrast, Etihad, American Airlines, Singapore Airlines and Turkish Airlines – all previously investigated by the UK’s CAA – have introduced policies to pay compensation to passengers affected by delays concerning directly connecting flights.
There is no doubt that this case has the potential to impact other third country operators, who will also now be expected to compensate passengers in circumstances comparable to the Emirates case. This could potentially open the floodgates for claims that have been stayed pending the outcome of Emirates’ appeal. Third country operators currently not compensating for delays such as this will need to give consideration to their internal policies to avoid the risk of separate enforcement action.