Dawson v Thomson Airways Ltd [2014] EWCA Civ 845

Court of Appeal of England and Wales


2. The claim arises out of a delay to a flight from Gatwick to the Dominican Republic in December 2006. Departure was delayed by crew shortages caused by sickness and the flight eventually arrived at its destination over six hours late. Mr. Dawson sought to recover from the airline the amount of 600 per person which under EC Regulation No. 261/2004 is payable as compensation for a flight of that length.

3. Mr. Dawson began these proceedings in December 2012, just before the six year limitation period under section 9 of the Limitation Act 1980 expired. The airline accepted that it would have been liable to make the payment if he had brought proceedings in time, but argued that the claim was out of time and had been discharged by virtue of the two year limitation period contained in article 35 of the Montreal Convention, which governs the liability of carriers by air.


What limitation period applies to claims under Regulation 261– is it the Convention time bar or the time bar specified by national law?


23. In the present case, by contrast, the relationship between Regulation 261 and the Montreal Convention is central to the question whether the claim for compensation falls within the scope of article 35. It also concerns an aspect of the Community legal order, including the relationship between two Community instruments and is therefore one which, as Lord Toulson acknowledged in Stott, raises a question of European law. Section 3(1) of the European Communities Act 1972 provides that any question as to the meaning or effect of any EU instrument shall be for determination in accordance with the principles laid down by any relevant decision of the European Court. I am cautious about accepting Mr. Lawson’s dichotomy between the rulings of the European Court and its reasoning. It is true that the formal rulings are set out at the end of the judgments and to that extent stand apart from the Court’s reasons, but the reasoning is in most cases essential to an understanding of the principles which the ruling seeks to encapsulate. In the cases to which I have referred the Court has held that the loss of time inherent in flight delay constitutes an inconvenience that cannot be categorised as “damage occasioned by delay” within the meaning of article 19 and does not come within the scope of article 29 (or, therefore, article 35): Nelson, paragraph 55. It has also held that the obligation to pay compensation for delay under Regulation 261 operates at an earlier stage than the system laid down in article 29: Nelson, paragraph 57. The Court’s decision in Mor is, of course, consistent with that analysis. Moreover, in the light of the competing arguments in that case it cannot have contemplated that national courts would resort to the Convention in preference to the domestic law of limitation.

24. In my view, therefore, we are bound to follow and apply the decisions of the European Court in relation to the nature of the claim for compensation under article 7 and its compatibility with the Montreal Convention. That includes the Court’s ruling that the obligation in question lies outside the scope of the Convention. If that be correct, the Convention has no application to it. Insofar as it is said that that involves a departure from Sidhu, it is no more than a consequence of the decisions in IATA, Sturgeon, Nelson and Mor. The European Court has ruled on the nature of the obligations created by Regulation 261 and its decisions have to be taken into account when deciding whether the claim falls within the scope of the Convention. In those circumstances I do not think it is helpful to embark on a discussion of the doctrine of precedent as it applies in the context of conflicting decisions of the House of Lords or Supreme Court and the European Court of Human Rights, to which we were referred. Apart from anything else, the statutory provisions are too dissimilar for the authorities to provide much assistance.

25. I acknowledge that other criticisms can be made of the legal regime constituted by the decisions in Sturgeon, Nelson and Mor, not least that the limitation periods applicable to claims under article 19 of the Convention and claims under article 7 of Regulation 261 will frequently differ. However, none of them seem to me to provide a sufficient justification for applying the Convention time bar to a claim of this kind.

26. For these reasons, which are essentially the same as those of the judge, I would dismiss the appeal.

Useful for

Convention two year time bar does not apply to EU261 claims

Treaty provisions considered

Article 35 MC99

Montreal Convention 1999

Legislation considered

EU Regulation 261/2004/

Key subjects or concepts

Exclusivity/ Local Law on Consumers/ Time Bar/