UK’s Top Judges Reject Appeal By BA Cityflyer Which Claimed Staff Absence Leading To Cancellation Was ‘Extraordinary Circumstance’

A British couple whose flight was cancelled after a pilot fell ill off-duty have won their six-year legal battle for compensation.

Ken and Linda Lipton were booked on a flight from Milan to London City Airport in January 2018. The flight was cancelled when the pilot did not report for work because of illness.

The couple, from Westerham, Kent, were placed on another flight which arrived two hours and 36 minutes after their original scheduled arrival time.

The couple applied for compensation under EU regulations which states carriers should compensate passengers of cancelled flights, subject to certain conditions. The levels of compensation payable are fixed depending on the distance travelled. In the Liptons’ case it was 250 Euros.

Couple's original claim rejected

However, the airline operator BA Cityflyer Ltd, rejected the application claiming the pilot’s illness constituted ‘extraordinary circumstances’ and as such it stated was not required to make any payments.

The Liptons launched a county court legal challenge which was rejected and rejected again on appeal. However, in 2021 the Court of Appeal ruled in the couple’s favour.

That promoted BA Cityflyer to appeal that decision to the Supreme Court – the UK’s highest court.

Supreme Court judgment handed down

However, in a judgment handed down today, Supreme Court judges dismissed the carrier’s appeal and ruled the Liptons should receive compensation.

Oliver Studdert is the lawyer at Irwin Mitchell representing the couple.

Expert Opinion

“The frustration of a delayed or cancelled flight is something many of us can relate to. The law provides for a modest level of compensation to be provided to those affected to make up for the inconvenience.

“It’s not uncommon for airlines to refuse to pay out on the basis that they consider that the circumstances which led to the delay or cancellation amounted to an extraordinary circumstance. However, this judgment unequivocally confirms that staff illness isn’t an extraordinary circumstance, and that where this is the reason for a delay or cancellation, the passenger has a right to compensation.

“Ken and Linda Lipton fought back and never expected to find themselves in the Supreme Court, but their resilience in doing so will bring clarity and financial relief to many.” Oliver Studdert

What the Supreme Court was asked to consider

By the time the matter reached the Court of Appeal the UK had left the European Union. The Court of Appeal allowed the appeal, giving judgment on the issue of whether there were extraordinary circumstances and on how the Liptons’ rights applied under EU regulations post-Brexit. 

BA Cityflyer appealed to the Supreme Court on two grounds. These were the delays or cancellations arising from short-notice ill health by aircrew or staff was an extraordinary circumstance.

Secondly, because the Liptons’ flight was cancelled before the UK left the EU, but the court determined their case after the UK had left the EU, the Supreme Court was also asked to determine whether it was the EU law at the time of the cancellation that applied, or whether the domestic law that applied following the UK’s exit from the EU. 

All five Supreme Court judges sitting threw out ground one, finding delays or cancellations arising from short-notice ill health by aircrew or staff will not constitute extraordinary circumstances. 

On ground two, four of the five judges ruled with arguments put forward by the Liptons’ legal team – that the couple’s entitlement to compensation on the day their flight was cancelled was enforceable post-Brexit and forms part of “retained EU law”. 

Expert Opinion

“This judgment also addresses which law should be applied following the UK’s exit from the EU as Ken and Linda’s flight took place before Brexit took effect, but the case was determined afterwards.

“The Supreme Court concluded that the Liptons’ entitlement to compensation on the day their flight was cancelled is enforceable post-Brexit and forms part of “retained EU law”." Oliver Studdert

Ken and Linda Lipton issue statement

In a joint statement, the couple said: "We see this as not just a win for ourselves but a victory for people who are prepared to fight for common sense and justice against corporate behemoths who have access to every resource. We never wanted to be in this position but felt we had little choice but to continue our legal case given the stance of the carrier all the way through this. 

“Their insistence to continue this battle to the highest court in the land has now met with the correct conclusion and our significantly smaller, but no less wiley team has succeeded against all odds. 

“We would like to extend our sincerest gratitude to the barristers who represented us and Irwin Mitchell who were tremendous in ensuring our route, whilst painful, was informed at every step of the way, even when it appeared we were able to fight no longer. However, we saw it through, and we won.”

The Liptons were represented by Oliver Studdert and Demetrius Danas of Irwin Mitchell, and counsel: Michael Rawlinson KC, Max Archer and Daniel Isenberg. Their legal team were acting under a conditional fee agreement.

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