Ryanair’s response to the cancelled flights and chaos at Stansted airport over the last week will come as little surprise to seasoned airline watchers. Despite the now clear law requiring it to pay compensation of €250 (£223) (400 if the flight is more than 1,500km which covers Malaga, Naples and Dubrovnik) to virtually any passenger delayed by more than three hours, it is arguing that “exceptional circumstances” enable it to escape liability. (My son and the editor of these columns were among the many delayed last weekend. Probably neither of them will be naive enough to accept Ryanair’s denials, but a substantial proportion of those delayed will simply give up.)
While EU regulation 261, which ordains compensation for most delays, is subject to legitimate criticism, the airline throwing its toys out of the pram when facing such claims should not deter anyone.
Many of the recent problems were down to strikes by Ryanair staff. Ryanair claims the unions were acting unreasonably, so this was “exceptional circumstances”. The argument is absurd, because courts can’t decide the reasonableness of a strike, and strikes are so commonplace that even utterly unreasonable ones are hardly exceptional. In any event, the European and UK courts have made it clear airlines cannot rely on strikes by their own staff to avoid a claim, although those by third parties like air traffic controllers may count. The CAA last week issued a statement reinforcing passengers’ rights in these circumstances.
The CAA is more sympathetic where bad weather causes delays, though this still must be exceptional. Ryanair has yielded to my arguments that fog affecting flights to Pisa doesn’t prevent a compensation claim as fog is so common there. The thunderstorms over London last week caused some of the delays, and might be regarded as exceptional. However, they only lasted for a couple of hours and the knock-on effects, which may have contributed to the subsequent delays, are not a defence. That much was decided in a case in Macclesfield county court brought against EasyJet in 2013, which the airline conspicuously decided not to appeal.
The payment kicks in when a flight arrives three hours late. Airlines would like this to mean when it lands three hours after the scheduled arrival. But a 2014 case involving Germanwings determined that arrival is when the cabin doors open, often some time after landing.
Ryanair and other airlines ask people to complete a form to claim compensation, but there is no obligation, particularly if it employs so few staff to deal with claims there are substantial delays. It is not difficult to work out the emails of senior staff at Ryanair and address the claims directly to them. If that does not bring a satisfactory response, then the courts’ Money Claim Online website, which only charges £25 for claims under £300, works well, and unless the airline successfully defends the claim it will be ordered to refund that sum. Ryanair’s address should be given as Stansted Airport, not its Dublin head office.
There is no advantage in using a “no win, no fee” lawyer who will take a chunk of the compensation and whose involvement may, according to a 2017 decision in Liverpool county court, mean claims handled that way have to be brought in the Republic of Ireland.
Ryanair’s comically high handed behaviour distracts from the force in its argument that EU261 is not a very sensible piece of legislation. The main problem is that compensation is not matched to the fare paid, so a passenger who bought a flight for €10 receives as much as someone paying €500. A cap of two or three times the fare would not, in my opinion, seem unreasonable.
A passenger delayed two hours 59 minutes gets nothing, a minute later it is €250; six hours later, except on long-haul flights, it is still €250. Anomalously, the passenger to Faro or Athens actually gets €400, while those who are Barcelona or Rome bound are restricted to the €250.
The narrow interpretation of “exceptional circumstances”, which excludes most mechanical faults and staff shortages, is unpopular with all airlines. It might be better to introduce strict liability so airlines have no excuse for not paying up, as the excuse is ruthlessly seized on by those who are keenest to avoid liability. As it probably only applies in about 2% of cases it would be fairer to reduce levels of compensation slightly but apply it to all delays. After all, passengers are just as inconvenienced by air traffic controllers strikes as by those of Ryanair’s staff.
Airlines that are not EU-based are liable if flights from the EU are delayed but not if there are similar delays to the EU, which will become more common if Brexit happens. Although the regulation is likely to remain in force and be enforceable in Britain, it won’t apply to flights taking off from a non-EU Britain.
Richard Colbey is a barrister but does not act professionally in EU261 claims
