23 JUL 2014
Dawson v Thomson Airways  EWCA Civ 845
Court of Appeal
19 June 2014
Lord Justice Moore-Bick, Lord Justice Kitchin and Lord Justice Fulford
In February 2004 the European Union published the Denied Boarding Regulation (EC 261/2004). This gives a right to airline passengers to recover compensation in the event of delayed boarding of a flight.
In Dawson v Thomson Airways the Court of Appeal was asked to decide whether the applicable limitation period for claims under the Denied Boarding Regulation was the 6-year period for claims based on a statute (section 9 Limitation Act 1980), or whether the 2-year period laid down by Article 35 Montreal Convention applied.
Mr Dawson's flight was delayed by crew shortages caused by gastric illness in the Dominican Republic. He brought a claim for €600 compensation, as prescribed by the Denied Boarding Regulation, just under 6 years after his flight. The air carrier admitted that, in principle, the circumstances would have given rise to a claim. But it argued that the limitation period was 2 years, not 6, and that it had therefore expired.
The Court of Appeal, upholding the decision of the trial judge,held that the applicable time limit was 6 years, not 2. The essential choice for the Court of Appeal was whether tofollow, on the one hand, a line of authority from the CJEU as to the scope ofthe Montreal Convention, or, on the other hand, the previous English laworthodoxy, as laid down by Lord Hope in Sidhu v British Airways  AC 430.
The orthodoxy following Sidhu was that the Montreal Convention is a comprehensive charter of rights and duties between a carrier and passenger (provided the matter complained of falls occurs between embarkation and disembarkation). In that sphere there is no room for causes of action other than those provided for by the Montreal Convention.In line with this the Supreme Court recently rejected a claim for disability discrimination made by a disabled passenger (Stott v Thomas Cook  UKSC 15).
The CJEU has taken a different approach. In Nelson (Cases C-581/10 and C-629/10) and Moré (Case C-139/11) the CJEU has held that the Denied Boarding Regulation is not excluded by the Montreal Convention. The limitation period for compensation claims was therefore to bedetermined by ‘the national law’. This is striking because the Montreal Convention (which is now itself an EU instrument under the Montreal Regulations (2027/97 and 889/2002)) specifically makes provision for claims regarding delay (albeit in relation to delay of arrival).
In Dawson the air carrier submitted that, even if the CJEU approach was correct, this led back to the Montreal Convention time limit of 2 years. This was on the basis that the ‘national law’ was, effectively, Sidhu and this led the Court back to the Montreal Convention time limit.
The air carrier's arguments were rejected by the Court of Appeal, which held as follows. The claim did not fall within the exclusive jurisdiction of the Montreal Convention. The obligation to pay compensation fordelay under the Denied Boarding Regulation operated at an earlier stage than the delay provisions under the Montreal Convention and related to a different loss.
Further, the Court of Appeal considered that the CJEU in Nelson and Moré would not have contemplated that national courts of Member States would resort to the Convention rather than the domestic law of limitation.The ‘national law’ in this context was therefore the 6-year limitation period prescribed by s 9 Limitation Act 1980.
The meaning and effect of both the Montreal and Denied Boarding Regulations were matters which were to be determined in accordance with the principles laid down by the CJEU. Therefore, limitation was a matter for thenational law, without recourse to the Montreal Convention.
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The most obvious implications of Dawson are that claimants now have 6 years in which to bring denied boarding claims claims. This is likely to increase the potential burden on airlines.
Further, there is now increased uncertainty as to when, outside the Denied Boarding Regulation, an English court may depart from Sidhu and find the Montreal Convention inapplicable. The Court of Appeal in Dawson declined to give any guidance on this. Sidhu therefore remains good law. But one can expect further challenges to its scope. Also, the reasoning in Dawson is difficult to reconcile with Stott. If the English court is required to interpret the Montreal Regulations inaccordance with CJEU authority, then the Supreme Court's refusal to have regard to the CJEU cases in Stott appears difficult to justify. The distinction between the compensation claim for denied boarding in Dawson and the claim for damages for discrimination in Stott does little to assist. It may be that a reference will be made to the CJEU which will have the opportunity to give its determination as to the approach todiscrimination claims in this context.