The Denied Boarding Regulations - how long do you have to bring a claim?

Posted by Daniel Scognamiglio on

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Regulation 261/2004, commonly known as the Denied Boarding Regulations, sets out a regime imposing liability on an air carrier to provide care, assistance, accommodation and in certain circumstances compensation for cancellation, delay or where a passenger is denied boarding for another reason (for example overbooking of a flight). 

Passengers are entitled to bring a claim against the airline if it fails to meet its obligations under the Denied Boarding Regulations.  Insurers may also want to exercise those rights by way of subrogation if they pay out to their insured under the terms of the policy for flight cancellation or delay where it is the airline that should be providing compensation in the first instance.

What, however, is the time limit for pursuing a claim under the Denied Boarding Regulations?  Until recently, the answer has not always been clear.  In short, if you are bringing your claim following a flight booking made in England/ Wales or to which English law applies then it is likely that you have six years from the date of the flight cancellation or delay.

The Denied Boarding Regulations contain no provision fixing a time limit for bringing an action against an airline where it fails to comply with its obligations.  Throughout the EU there has previously been discussion as to whether the two year time limit under the Montreal Convention applies given that the claim is against an airline or whether some other time limit applies.  Unhelpfully, the Regulations are mute on the point and it took a referral to the ECJ in the case of Moré -v- Koninklijke Luchtvaart Maatschappij NV (Case C-139/11) to clarify the position.

By its judgment dated 22 November 2012, the ECJ rejected the argument that the short two year time limit under the Montreal Convention should apply as the Regulations give rise to a separate cause of action not governed by the Convention.  It held that "the compensation measure laid down in Articles 5 and 7 of Regulation 261/2004 falls outside the scope of the Warsaw and Montreal Conventions."  The Court looked to guidance from general principles of EU law to find that, in the absence of any time limit being stipulated in the Regulations themselves, it is a matter for each Member State's domestic law to determine the limitation period for bringing a claim.  In the case before the ECJ, Spanish law was relevant which allowed for a 10 year limitation period.  Under English law, it is likely the limitation period will be 6 years.  This is because the claim will either be contractual or arise as a result of the airline's breach of the enactment giving the Regulations force of law.

If a claim under the Regulations is not a claim arising under the contract of carriage then section 9 of the Limitation Act 1980 will apply.  This provides for a six year limitation period where the action is to recover a sum due by virtue of any "enactment".  While legislation was not necessary to give the Denied Boarding Regulations direct force of law in England/ Wales, the provisions were expressly introduced by the Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005. In other words, all roads lead to the same answer.Whether a claim under the Denied Boarding Regulations is contractual or pursuant to an airline's statutory duty, the time limit for bringing the claim is the same – a six year limitation period will apply.

It is important to note that this time limit is only for claims arising under the Denied Boarding Regulations.  If the claim falls under the Montreal Convention then the much shorter two year limitation period will be relevant.  It is also important to carefully check the airline's conditions of carriage for any express provisions regarding liability or pursuing a claim against the airline.

This decision from the ECJ is important for consumers and insurers alike.  Very often, airlines can take a long time to process Denied Boarding claims. During the volcanic ash cloud saga airlines were inundated with enquiries.  A few days of heavy snow and it is not unusual to see our airlines forced to ground their flights.  While there will be no right to fixed compensation under the Regulations in those situations, the airline must still arrange re-routing/ refunds and provide care and assistance to those who are stranded.  If the airline does not settle a claim promptly and amicably then proceedings may be necessary.  Although you should always act promptly when exercising your rights under the Regulation, if you do need to issue the claim at Court, some comfort can be found in the ECJ's decision that domestic law will govern the time limit for bringing a claim.

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About the Author

Daniel leads our travel team. He is a specialist in multi-jurisdictional disputes, travel insurance litigation and tour operator liability and is qualified as a solicitor in England and Attorney at Law (non-practising) New York.

Daniel Scognamiglio
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