A couple whose flight to London on a British Airways subsidiary was cancelled at short notice have won a claim for compensation after the UK Supreme Court ruled that the pilot’s unexpected illness was not an extraordinary circumstance.

The decision is likely to be expensive for the airline — and not just because it will have to pay the legal costs of hearings in four different courts. One of the justices said that tens of thousands of claims were made every year under what was originally a European regulation and the significance of the court’s decision extended far beyond the parties to the case.

Kenneth and Linda Lipton (Leigh Day)

The case goes back to 2018, when Kenneth and Linda Lipton were booked on a two-hour flight from Milan to London operated by BA CityFlyer, a wholly owned subsidiary of British Airways.

Their flight was due to take off at 5.05pm. An hour earlier, the captain phoned in sick. The airline has refused to disclose the nature of the illness — one of the Court of Appeal judges imagined it had resulted from a dodgy prawn sandwich though I would prefer to think it was linguine alle vongole followed by pizza frutti di mare — but in any case the airline’s medical advisers confirmed that the unfortunate and unidentified captain was not fit to fly.

Not surprisingly, BA CityFlyer did not have a spare pilot sitting around in Milan and the flight was cancelled. The Liptons were re-booked onto another airline and reached London City airport two hours and 36 minutes later than their scheduled arrival time.

A BA CityFlyer aircraft at London City Airport

At that time, a well-known EU regulation called (EC) 261/2004 gave passengers flying within Europe a right to compensation if their flights were cancelled or significantly delayed. Under article 7, you were entitled to €250 for a flight of this length. But there was a crucial exception.

Article 5(3) of the 2004 regulations — which is still effective in the UK — says an airline does not have 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”.

Was the captain’s illness an extraordinary circumstance that the airline could not reasonably have avoided?

Yes, insisted BA CityFlyer, because the captain was off duty at the time. They were not responsible for the captain’s lunch or whatever it was.

And Deputy District Judge Printer — sitting at the county court in Portsmouth — agreed:

I am satisfied that the illness of the captain on the evidence before me can properly be ascribed to an external event outside the control of the airline and accordingly it is not intrinsically linked to the operating system of the aircraft.

That was not what the Liptons wanted to hear. They appealed to a circuit judge in Winchester. But Judge Iain Hughes QC upheld the earlier decision.

So the Liptons tried the Court of Appeal. Giving judgment in March 2021, Lord Justice Coulson accepted that there were no previous cases dealing with delay caused by staff illness. But after analysing regulation 261 he ruled against BA CityFlyer.

“The non-attendance of the captain due to illness was an inherent part of the (airline’s) activity and operations as an air carrier,” Coulson said. It “could in no way be categorised as extraordinary”.

Yesterday, the Supreme Court dismissed the airline’s appeal.

There was a complication. Between the date of the cancelled flight and the date when the Liptons’ claim was heard by the Court of Appeal, the United Kingdom had left the European Union. What effect, if any, did that have on the couple’s right to recover compensation under regulation 261?

Everyone agreed that the rights they had when their flight was cancelled in 2018 were not lost when the UK left the EU in January 2020. What was not so not clear was which laws now governed their claim.

There was a transition period — late called an implementation period — between Brexit day and the end of 2020. On 31 December, regulation 261 was amended by new regulations.

That amendment had taken effect by the time the Liptons’ case came before the Court of Appeal in March 2021. But the Supreme Court said the appeal judges should have applied the law that was in force at the time of their flight.

I won’t attempt to summarise the two different ways in which the Liptons’ claim could have been carried forward after the transition period. Lord Lloyd-Jones dissented on this point but nothing turns on it in this case.

“Staff illness, and the need to accommodate such illness on a daily basis, is a commonplace for any business,” said Lord Sales and Lady Rose. “Wear and tear of the aircraft and its component parts is not extraordinary. The wear and tear on people, manifesting itself in illness, should not be regarded as any different.”

Dealing with the airline’s claim that the pilot became unwell while off duty, the two justices said:

It does not matter whether the captain of this flight happened to fall ill an hour before he clocked on for work rather than half an hour afterwards.

It is unrealistic to say that the captain was only an inherent part of the airline’s operation when he had clocked on for work and that in the minutes leading up to that point he was somehow irrelevant to the air carrier’s activity…

If a crew is on a particularly tight schedule, with a meal then a flight then a rest and then a repeat for the return flight, how can it be safely worked out when, why or how the crew member actually fell ill?

Claims should not depend on investigations of that sort, the five justices agreed.

In a statement issued by Irwin Mitchell, their new solicitors, the Liptons 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 wily team has succeeded against all odds.

A spokesperson for British Airways said: “We are disappointed with this decision and respect the judgment of the court.”

I must declare an interest. I recently travelled to London on British Airways. My flight — BA483 on 30 June — landed 3 hours 28 minutes late. BA staff had told me at check-in that the incoming aircraft, which had been scheduled to leave London at 6.40am, did not take off until 8.35am because of crew shortages. Perhaps someone had been at the prawn sandwiches again.

Clearly, a delay of nearly two hours could not have been caused by unavoidable and extraordinary circumstances such as air traffic control restrictions or weather problems. The incoming flight BA402 picked up a further delay during a stopover, presumably because it had missed its original slot.

For a flight of more than 3,500km delayed by more than three hours — as this was — the compensation is now £520.

I put in a claim on 1 July, adding a few comments about the serious deterioration in BA’s service on this sector, and BA tell me my claim is “currently in the queue”. Perhaps they were waiting for yesterday’s ruling.

I’ll update readers here as soon as the airline decides my claim.