Lipton v BA Cityflyer Ltd [2024] UKSC 24
Lipton explains how English courts identify the law governing EU-derived rights that accrued before Brexit. It also decided that routine staff illness is not an extraordinary circumstance excusing an airline from passenger compensation.
Facts
Kenneth and Linda Lipton were booked on a BA Cityflyer flight from Milan to London in January 2018. The flight was cancelled because the captain became ill while off duty and no replacement could be found in time. The passengers travelled on another flight and arrived more than two hours late. They claimed €250 each under Regulation (EC) No 261/2004. BA argued that the pilot's unexpected illness was an extraordinary circumstance relieving it from liability. The claim arose while the United Kingdom was an EU Member State, but the litigation continued after Brexit and after domestic amendments to the passenger-rights regime. The courts therefore also had to identify which version and body of EU-derived law governed the accrued claim.
Legal Issue
Which legal regime governed a passenger claim accrued before the end of the Brexit transition period, and did an off-duty pilot's illness amount to extraordinary circumstances under Regulation 261?
Held
The Supreme Court unanimously dismissed BA's appeal. The passengers' substantive rights were governed by the EU Regulation as it applied when the flight was cancelled in 2018, because later domestic amendments did not retrospectively alter an accrued cause of action. Pilot illness was inherent in the normal exercise of an airline's activity and was not an extraordinary circumstance, even if its timing was unexpected. The Court also addressed the post-Brexit framework. A majority treated the unmodified Regulation applicable to the historic claim as retained EU law and considered that the higher courts had statutory power to depart from retained EU case law. The minority reached the same outcome but regarded the accrued EU right as continuing under transitional provisions rather than as retained EU law.
⭐ Legal Principle
Rights accrued under directly applicable EU law before the end of the Brexit transition period are not retrospectively displaced by later domestic amendments. Under Regulation 261, ordinary staff illness is inherent in airline operations and does not satisfy the extraordinary-circumstances defence merely because it occurs unexpectedly.
Significance
The decision is important both for passenger compensation and for the temporal operation of post-Brexit law. It distinguishes the law governing an accrued claim from later amendments to the domestic regime. The majority's discussion of retained EU law, and the minority's alternative transitional analysis, produced the same result and much of that discussion was not essential to the outcome. Since the Retained EU Law (Revocation and Reform) Act 2023 renamed and altered parts of the framework, students must identify the relevant date before applying Lipton more broadly.
Common exam questions about this case
Why did later amendments to UK passenger law not govern the Liptons' claim?
Their cause of action accrued when the flight was cancelled in 2018, while the EU Regulation applied in the United Kingdom. Nothing in the later domestic amendments clearly removed or altered those accrued rights retrospectively. The Court therefore determined the claim under the substantive rules applicable at the time of cancellation, despite the appeal being heard after Brexit.
Why was the pilot's illness not an extraordinary circumstance?
Airlines necessarily organise and manage staff so that scheduled services can operate. Illness among crew is a commonplace event inherent in that activity, even where a particular illness occurs suddenly and off duty. The defence requires circumstances outside the normal exercise of the carrier's operations, not merely an event that was unexpected or difficult to avoid on the day.
Did every Justice use the same post-Brexit reasoning?
No. The Court agreed on the outcome, but the majority characterised the applicable unamended Regulation as retained EU law and discussed the statutory power to depart from retained EU case law. The minority considered the historic right preserved by transitional provisions without becoming retained EU law. That distinction did not change the passengers' entitlement and parts of the discussion were therefore obiter guidance.