What can you do if your flight is delayed?

Posted by Katherine Ettridge on
There has been a lot of interest in the media recently regarding airlines overbooking their flights, particularly after United Airlines staff were filmed forcefully removing a passenger from an overbooked flight as nobody volunteered to give up their seat. We have also had British Airways suffering a massive global IT failure leaving flights cancelled and people missing holidays. Around the world planes were grounded and passengers stuck either in terminal buildings or on planes, as a shortage of available gates meant incoming passengers had no opportunity to disembark.

The most common grounds for denied boarding are for overbooking or operational reasons. Regulation 261/2004 makes provision for payment of compensation and other assistance to passengers who have been denied boarding or subjected to cancellation or long delay of their flight.

The Regulation is limited to passengers departing from an airport located in an EU member state where denial of boarding, delay or cancellation takes place in the member state and passengers departing from an Airport of a country to one in an EU member state, operated by an EU carrier. The latter only applies if the passenger has not received benefits or compensation in the non EU member country of departure.

Where a flight departing from an EU member state consists of two or more segments booked as a whole, each segment should be considered as a separate flight. For example on a flight from London to Bangkok via Dubai, the Regulation would not apply if the delay occurs on the flight from Dubai to Bangkok.

The time limit for making a flight delay compensation claim is specified by each individual country and the EU regulation falls outside of the scope of the Montreal convention. In England and Wales you have 6 years to claim for flight delay.

Compensation for delay

Flight distance

Late arriving            Compensation per passenger
Up to 1,500km (932 miles) More than 2 hours €250
Intra-EU flights of between 1,500km - 3,500 km (2,175 miles) More than 3 hours €400
More than 3,500km (2,175 miles) More than 4 hours €600

For cancelled flights and flights delayed 2 hours or more (depending on the distance) passengers also have rights to care (refreshments, meals, accommodation). It is important that passengers keep receipts for any such expenditure. If your delay is more than five hours, then you are entitled to choose between being rerouted or reimbursed in the same manner as if your flight had been cancelled.

The right to compensation is subject to the Airline's defence of delay or cancellation caused by extraordinary circumstances.  "An operating air carrier shall not be obliged to pay compensation, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken."

There have been a number of cases on what constitutes extraordinary circumstances. The circumstances are  mostly extraneous acts of third parties such as terrorism, sabotage, strikes (excluding the air carrier's own staff), traffic control problems and freak weather conditions such as those caused by volcanic activity. The CJEU ruled in the case of Van Der Lans that a "technical problem which occurs unexpectedly, which is not attributable to poor maintenance and which was also not detected during routine maintenance checks, does not fall within the definition of extraordinary circumstances."

There was a recent five hour flight delay in China where an elderly lady threw coins into the engine for 'good luck' whilst making her way up the stairway to the plane. Fortunately this was noticed by a fellow passenger and the airline conducted a full inspection of the plane's engine finding nine coins which could have caused engine failure on the flight. This situation would be likely to be an extraordinary circumstance.

If you suffer a flight delay, make sure you keep any receipts and documentation from the Airline. Then write to the Airline to claim for your compensation. Some airlines will deny compensation and you may need to seek advice from a Solicitor. Check your travel insurance policy for legal expenses cover. 

About the Author

Katherine is a Solicitor in the Personal Injury Travel team.

Katherine Ettridge
Email Katherine
023 8085 7305

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