On 10 July 2024, the UK Supreme Court released its highly anticipated judgment in the case of Lipton & another v BA Cityflyer Ltd [2024] UKSC 24.

Ground 1 of the Appeal concerned the meaning of ‘extraordinary circumstances’ within the meaning of EC Regulation 261/2004 (currently part of retained EU law), which provides for air carries to pay compensation to passengers of cancelled (and delayed) flights.

The key consideration was whether a pilot unexpectedly falling ill while off-duty constituted an "extraordinary circumstance, which could not have been avoided even if all reasonable measures had been taken".

The Respondents' case

On 30 January 2018, Mr and Mrs Lipton were booked on a flight from Milan to London City Airport, operated by BA Cityflyer Ltd. The flight was scheduled to depart from Milan at 17.05 local time and was due to arrive the same day at London City Airport at 18:05 (local time).

At 16:05 local time in Milan, the captain reported that he was unwell. As a result of his illness, the flight was cancelled, due to there being no replacement captain available to operate the flight within a reasonable time.

The Liptons were re-booked onto another flight and eventually arrived at London City 2 hours and 36 minutes after their scheduled arrival time. They sought compensation under EC Regulation 261/2004 (“the Regulation”).

The Appellant's case

The Appellant argued that as the captain reported illness when he was off duty and not at his place of work, that this was an external event outside of the airline's control and therefore an exceptional circumstance within Article 5 of the Regulation. As such, they had discharged their burden of proof.

The District Judge at first instance determined that it was an extraordinary circumstance and dismissed the claim. The Court of Appeal, upon hearing the claim, determined that the pilot being taken ill whilst off duty was not an extraordinary circumstance and set out six reasons for this finding.

The UK Supreme Court Decision

The UK Supreme Court has upheld the decision of the Court of Appeal and determined that the pilot being taken ill whilst off duty was not an extraordinary circumstance. They fully agreed with Coulson LJ and the six inter-linked reasons for his finding.  

Fundamentally, it was held that the non-attendance of the captain due to illness was an inherent part of the airline’s activity and operations as an air carrier and this could in no way be catergorised as extraordinary. It was found that illness is a matter which the airline would be expected to cope with in the ordinary course of managing its business, as a matter inherent in the conduct of that business.

The appeal was subsequently dismissed in its entirety.

This decision will provide useful authority to those dealing with claims for delayed and cancelled flights in the future and is likely to result in a greater number of successful claims for passengers inconvenienced by such events.