Articles, Travel & Cross Border Claims

As blue skies and summer holidays encourage the team to consider taking the 1CL private jet for a spin, we’ve spent the week thinking about all things aeronautical. The problems being experienced by passengers have been well documented this week, and the CAA and CMA appear to have run out of patience with the industry. There have also been a number of developments in the oversight of aviation more generally. Oh, and the European Council has approved the EU’s accession to the Hague Judgments Convention, making it easier for the bloc’s citizens to enforce judgments outside the EU and providing an additional incentive for the UK to join, in the absence of any discernible movement in relation to the UK’s application to accede to the Lugano Convention.

Amidst sky high flight cancellations, airlines are warned they could face enforcement action from the Civil Aviation Authority

Summer 2022 is the moment when many people are finally able and willing to travel abroad since the Covid-19 pandemic broke in 2020. Unfortunately for many, it is also a time when many airlines are struggling to find the staff to run their scheduled flights. Staff shortages and industrial action have meant that many flights have been cancelled, some at very short notice. According to aviation analytics company Cirium, recent cancellations were up by more than 250% on pre-pandemic levels, with 940 flights cancelled in the first half of June compared to just 267 for the same period in 2019. The disruption peaked on 5th June when 116 UK departures were cancelled in one day.

In light of all this disruption, the Competition and Markets Authority (CMA) and the Civil Aviation Authority (CAA) are keeping a close eye on airlines’ practices. In an open joint letter to airlines on 21 July 2022, they issued a warning about the need to abide by consumer protection law, and outlined the areas in which they considered that airlines could be falling short. They also made it clear that they would be keeping a close eye on airlines’ practices, and would take enforcement action against airlines that were failing to comply if necessary.

They raised three particular areas of concern in which airlines may not be doing enough to avoid engaging in harmful practices, namely:

  1. Selling more tickets for flights than airlines can reasonably expect to supply, and failing to warn consumers about the ensuing risk of cancellation.
  2. Not always fully satisfying obligations to offer consumers re-routing (including with alternative carriers where necessary) in the event of cancellation.
  3. Failing to give consumers sufficiently clear and upfront information about their rights on cancellation, and/or to provide adequate and appropriate support and care where flights are cancelled or disrupted.

In relation to the above concerns, the bodies emphasised the consumer protection obligations on airlines.

Regarding the ability to run scheduled flights, it was stressed that airlines needed to monitor continuously both internal and external factors that may impact their ability to operate scheduled flights. The factors that were listed as needing to be kept under review included:

  • Staff numbers, recruitment and other logistics;
  • External factors that may impact recruitment;
  • The likelihood of disruption being caused by essential suppliers.

It was also stressed that airlines should not continue to advertise flights if there is significant doubt about whether they would actually be able to run them.

In relation to consumer information following a cancelled flight, the CMA and CAA made it clear that it is important that information is readily available to consumers about their rights following a cancellation, and that these need to be communicated clearly, and be easily accessible.

Similarly, they stressed the lengths which airlines need to go to in order to assist consumers in re-routing their journeys following a flight cancellation. Airlines must have the necessary structures and staff in place to be able to assist consumers, including helping to organise additional support such as overnight accommodation if needed. There must be systems in place that help consumers that are not able to research or book their own alternative flights, either because they could not afford to wait for reimbursement or for other reasons. It must also be easy for consumers to communicate with airlines and find out information about their legal rights and how they can exercise them through a number of different channels (i.e. not just via apps). Further, if providing a phone line, calls must not be charged at more than the basic rate for that customer’s calls, and wait times to speak to someone on the phone must not be unreasonable.

Finally, airlines must refund consumers promptly, and failure to do so may be considered an aggressive practice as delay could dissuade consumers from exercising their rights to reimbursement.

Both the CMA and CAA have enforcement powers in the aviation sector under the Enterprise Act 2002, and they made it clear that those powers would be exercised if they considered that airlines were falling short, and so all airlines should pay attention to the concerns raised. They need to be seen to be managing the risk of cancellations proactively, as well as providing ample support and information to consumers whose flights have been cancelled.

About the Author

Kerry Nicholson takes instructions across all of chambers’ core areas. Prior to joining 1CL Kerry worked for the Government Legal Department working across a variety of departments in both litigation and advisory roles. She now enjoys working within the team on travel related and other claims.

Automated Aircraft: Can the Law Keep Up?

The Law Commission has announced its intention to review the law around autonomous flight, examining the existing legal framework in order to identify gaps or uncertainties in the legislation in this area. The review has been prompted by the proliferation of automated systems in the sector, first in relation to drones but latterly in advanced air mobility vehicles such as electric vertical take-off and landing (eVTOL) aircraft, which can provide short journeys for a small number of people. The advantages of these systems are obvious; but so are the potential dangers. Many of the same issues arise in relation to automated flight as in respect of automated cars and other vehicles, with the obvious difference that in the case of claims arising out of the provision of flights the legal framework is much more rigid. The Warsaw and then Montreal Conventions took so long to negotiate and update that by the time they came into force they were already somewhat out of date, most obviously in the delineation of ‘embarkation’ and ‘disembarkation’ and it will be interesting to see whether the Law Commission concludes that it is time for a more nimble and readily adjusted legislative structure.

There is also the issue of space tourism, a growing market predicted to be worth $3 billion by 2030. SpaceX alone has launched 26 people into orbit in less than two years, eight of which were tourists, and in April NASA opened up its side of the International Space Station to paying guests.

All of these developments are of more than academic interest; at present technology is innovating at a far faster pace than legislators can possibly hope to manage. At some point issues of jurisdiction and applicable law are bound to present themselves, and at this rate the liability framework in respect of voluntarily undertaken amateur space flight and unmanned automated flight will be tested sooner rather than later. American legislators are ahead of their UK counterparts in this respect, but the Law Commission’s project, which is expected to start in September, could usefully build on their work.

Another area in which the US is showing the way was highlighted last week, with the announcement by the American Department of Transport of a Bill of Rights for airline passengers with disabilities. The Bill of Rights sets out fundamental rights for disabled passengers and applies to all US airlines and to flights operating to and from the jurisdiction.

US and foreign airlines must include it on their websites and in any pre-flight notifications or communications provided to passengers who have alerted them in advance of their need for disability-related adjustments.

The rights included are as follows:

  • the right to be treated with dignity and respect;
  • the right to receive information about services and aircraft capabilities and limitations;
  • the right to receive information in an accessible format;
  • the right to accessible airport facilities;
  • the right to assistance at airports;
  • the right to assistance on the aircraft;
  • the right to travel with an assistive device or service animal;
  • the right to receive seating adjustments;
  • the right to accessible aircraft features; and
  • the right to resolution of a disability-related issue.

Readers will be aware that some of these provisions are already commonplace with the UK aviation industry, but others are not, and it will be interesting to see whether airlines or those authorities with jurisdiction over them respond to the publication of the Bill of Rights with any guidance or legislation on this side of the Atlantic. Historically people with disabilities have not been well served by the industry as a whole; could this be changing, particularly in the light of recent well publicised public relations catastrophes?

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she was a member of the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists, and is a member of the Admiralty Court Users’ Committee. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.

…And Finally…

Readers will be pleased to note that the rules on service outside the jurisdiction of documents other than the claim form have now been simplified, in the Civil Procedure (Amendment No.2) Rules 2022. The old CPR Part 6.38 reads:

(1) Unless paragraph (2) or (3) applies, where the permission of the court is required for the claimant to serve the claim form out of the jurisdiction, the claimant must obtain permission to serve any other document in the proceedings out of the jurisdiction.

(2) Where –

(a) the court gives permission for a claim form to be served on a defendant out of the jurisdiction; and

(b) the claim form states that particulars of claim are to follow, the permission of the court is not required to serve the particulars of claim.

(3) The permission of the court is not required if a party has given an address for service in Scotland or Northern Ireland.

The new rule states:

Any application notice issued or order made in any proceedings, or other document which is required to be served in the proceedings, may be served on a defendant out of the jurisdiction without permission where—

(a) the claim form has been served on the defendant out of the jurisdiction with permission; or

(b) permission is or was not required to serve the claim form (whether within or out of the jurisdiction).

A sensible cost-saving move, we think, and an example of an amendment to the rules which actually makes practitioners’ lives easier.