Creating a fairer Britain
These two cases were listed together for appeal in the Court of Appeal over 2 days following hearings in the County Court for Christopher Stott and in the County Court and High Court for Anthony Hook. Both claimants are disabled and had brought claims under the Regulation 9 of the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations which were introduced in the UK to bring into effect the Regulation EC No1107/2006. Both claimants were supported by the Commission from the outset and were represented by Robin Allen QC and Cathy Casserley, Counsel.
In respect of Christopher Stott, his County Court hearing in Manchester was only partially successful in that he was awarded a declaration that the Defendant Thomas Cook had discriminated against him in the way he was treated whilst on a flight from Zante in Greece back to the United Kingdom. However, no compensation for Mr Stott’s injured feelings was awarded as the Judge hearing the case felt constrained by the universal and exclusive operation of the Montreal Convention.
The facts in respect of Mr Hook’s case were similar in that as a disabled person he received less favourable treatment from the Defendant British Airways during a flight to and from Paphos in Cyprus. However, at an early stage in the litigation the Defendant made an application from the County Court to the High Court that Mr Hook’s claim should be struck out because of the application and operation of the Montreal Convention. As the Defendant was successful, Mr Hook appealed to the Court of Appeal.
Thus the issue to be resolved by the Court of Appeal in either case is one of statutory construction - whether in fact the Montreal Convention does have world-wide exclusive application and that under it, compensation can only be awarded in respect of physical injury or death or loss of baggage i.e. no compensation for injury to feelings. This indeed is the submission of both Defendants who are represented by the same Counsel.
Our submission on the Convention (both claimants being represented by Robin Allen QC) is that Regulation EC No1107/2006 clearly contemplates that a member state can enforce a claim that there has been a breach of the Regulation by an action for damages including an action for injury to feelings. Moreover Union law requires that member states provide proportionate dissuasive remedies for breaches of Union law rights and Regulation 9 of the UK Regulations meets those criteria. Our submission is that the Montreal Convention has to be construed to conform with Union law obligations and not the other way around and thus cannot be used to trump or read down either the provisions of the EC Air Regulation or the UK Regulations.
There is also an intervention from the Secretary of State for Transport, who submits that there is legal space for the operation of both the EU Regulation and the Convention and that in fact, one compliments the other.
One likely outcome of the hearing in the Court of Appeal is that the matter will be referred to the CJEU.