Brexit: Cityflyer case provides some clarity on stance of UK courts towards EU law
July’s UK Supreme Court judgment in Lipton v BA Cityflyer has brought some clarification as to how the UK courts will deal with the implications of EU case law in the post-Brexit era, as In-House Perspective reports.
The case relates to a compensation claim Kenneth and Linda Lipton made after a flight they were due to take between Milan and London in 2018 was cancelled by operator BA Cityflyer – a subsidiary of British Airways – due to the pilot taking ill. The Liptons were ultimately rerouted on another plane, but as EU law states airlines must pay compensation for cancelled flights, they duly put in an application.
BA Cityflyer dismissed the claim using the defence of ‘extraordinary circumstances’ – in which, under the relevant EU legislation, compensation wouldn’t be due – and judges in both Portsmouth County Court and Winchester County Court said they were right to.
By the time the Liptons took their case to the Court of Appeal in 2021, the UK had left the EU and, while many EU regulations had been assimilated into UK law during the Brexit process, the terms of the EU-UK Withdrawal Act stipulated that the Court of Justice of the European Union’s (CJEU) case law – which would be relevant to determining how ‘extraordinary circumstances’ would be interpreted – would no longer apply.
The Court of Appeal judges found in the couple’s favour and, after BA Cityflyer further appealed, the Supreme Court justices did too. Put simply, the Supreme Court ruled that, because the matter at hand occurred prior to the UK leaving the EU, the law that protected the Liptons at that point – the EU Air Passengers Rights Regulation 2004 (or ‘Regulation 261’) – should apply, as should CJEU case law. And, although Regulation 261 was practically carbon-copied into UK law at the end of the Brexit transition period, the Court said that it was the EU version of the legislation that should apply, rather than the UK law assimilating Regulation 261.
We’ll have to see how practitioners digest case law, but if you look at the judgment it says that accrued rights, irrespective of what the [EU-UK] Withdrawal Agreement says, remain the same
Akima Paul Lambert
Co-Chair, IBA Young Litigators Forum
Here, it differed from the Court of Appeal, which had ruled that the amended UK version of the law should apply, allowing the potential for other courts to depart from CJEU case law if they wished. The Court of Appeal otherwise took the same view as the Supreme Court in respect of CJEU case law and how ‘extraordinary circumstances’ was to be interpreted.
Ultimately, in the Supreme Court’s judgment, the CJEU interpretation of ‘extraordinary circumstances’ applied in the case. It found that even though the pilot fell sick at home and not at his place of work, it wasn’t an extraordinary circumstance. The Supreme Court said that the two lowest courts, which found in Cityflyer’s favour, had misinterpreted the case law.
That means, says Chloe Challinor, of counsel at Stephenson Harwood in London, that ‘the approach taken by the UK Supreme Court to […] the meaning of “extraordinary circumstances” will undoubtedly be followed by other UK courts when considering claims under [the UK version of] Regulation 261’. This is potentially significant in light of opt-in class action litigation that’s currently ongoing, she adds.
Yet while that might be good news for UK airline passengers, it doesn’t mean the Supreme Court justices have reverted back to EU law per se.
Akima Paul Lambert, Co-Chair of the Young Litigators Forum of the IBA Litigation Committee and a partner at Hogan Lovells in London, stresses that the Supreme Court judgment will only affect customers whose flights were taken pre-Brexit. And, as the limitation period for bringing cases under the EU legislation is six years, they now have less than three years in which to lodge a claim, meaning the additional period in which EU law will apply will be limited. ‘It’s not going to be something that extends in perpetuity,’ she says. ‘We might see a proliferation of claims but once we get to a period of six years that will stop. We withdrew on 31 December 2020 so for the next two, two and a half years we’ll probably see some litigation around this.’
However, while the Cityflyer case refers very specifically to the airline sector and Regulation 261, Lambert says the implications could be wide-reaching because it’s possible that the ruling could lead to people seeking to assert their accrued rights under other EU laws before the limitation period is up. ‘The big question is how retained law applies,’ she says. ‘We’ll have to see how practitioners digest case law, but if you look at the judgment it says that accrued rights, irrespective of what the Withdrawal Agreement says, remain the same.’
‘We could see quite a few cases that don’t relate to the airline industry also being affected by this,’ adds Lambert. ‘That’s because the question of what law should apply was determined as the law that was operating immediately before the Brexit implementation period completion date.’
Lucinda Orr, Digitalisation and AI Officer on the IBA Litigation Committee and a partner at Enyo Law in London, says that means the UK courts will be creating case law that broadly mirrors EU rulings in the immediate future – something that wasn’t envisaged as part of Brexit. She adds that the example of the Commonwealth countries, whose legal systems were originally based on the UK’s, shows there’s scope for potentially huge divergence to come, but highlights that in practice the UK courts will probably track the EU for decades.
‘At the moment our courts and the EU courts are tracking but there will come a time where, like the High Court of Australia, which tracked the House of Lords until the mid-1980s but is now quite divergent, even though it’s based on the same laws, we will diverge,’ she says. ‘With all the Commonwealth countries we’re the source of their original law but there’s been some fascinating divergence in how it’s been interpreted. The Cayman Islands and the BVI [the British Virgin Islands] are behind us but places like Australia and Canada have tended to go beyond us. Strands carry and track and eventually diverge.’
Orr says it’ll be interesting to see what happens with EU law. She believes there will be some areas where the EU will be stronger in its interpretation and some where it will be laxer, while the situation will be vice versa elsewhere. ‘But it takes a long time for divergence because it has to wait until there’s someone willing to take a case,’ she explains. ‘[Regardless of Brexit] there’s no such thing as a clean break.’
Margaret Taylor is a freelance journalist and can be contacted at mags.taylor@icloud.com
Feydzhet Shabanov/adobestock.com