The Supreme Court has ruled in favour of a couple who claimed €250 (around £220) in damages for flights that were cancelled after the pilot fell ill. The Supreme Court ruled that the reason for the cancellation did not constitute ‘extraordinary circumstances’.

In Lipton and another v BA Cityflyer Ltd The court heard that Mr and Mrs Lipton were claiming compensation for the cancellation of their BA Cityflyer flight to Milan. Cityflyer refused to pay on the grounds that the pilot falling ill was an extraordinary circumstance under Regulation 261, the EU Flight Compensation Regulation.

The Liptons’ claim was dismissed by a deputy district judge in the Portsmouth County District Court, on appeal by a circuit judge in the Winchester County District Court, but upheld by the Court of Appeals. Cityflyer appealed to the Supreme Court.

In their first judgment, Lord Sales and Lady Rose, with whom Lady Simler agreed, acknowledged the ‘all too familiar story of frustration and annoyance’.

Cityflyer’s two grounds of appeal before the Supreme Court asked what was meant by ‘extraordinary circumstances’ and whether the pilot’s illness counted as such. The second ground asked what effect, if any, Brexit had on Lipton’s ability to claim compensation under Regulation 261 when the UK was still an EU member state.

The judges ruled in the couple’s favour, saying the Court of Appeal had erred in holding that the amended version of Regulation 261 and the Liptons’ claim formed part of ‘preserved EU law’. The court said: ‘This is contrary to a fundamental principle of the rule of law which Parliament must respect, which requires that the law applicable is the one in force at the time when the material events occurred, rather than a different version introduced at a later date.

“If we were to analyse the situation as the Court of Appeal did, we would get strange results and undermine the important value of the final decision in a legal case.”

Regarding the meaning of ‘extraordinary’ and the dismissal of the appeal, the judgment states: ‘The absence of the captain due to illness was an inherent part of Cityflyer’s activities and operations as an airline and could in no way be categorised as extraordinary.’

Lord Burrows gave a concurring judgment, as did Lord Lloyd-Jones, although the latter judge disagreed with the reasoning about accrued EU legislative rights. He said: ‘The essential point of difference between us is whether the statutory provisions about retained EU law have only prospective effect. However, I agree with the majority that this difference between us is not decisive in these proceedings and the differing views expressed are therefore obiter.’