Stott v Thomas Cook Tour Operators Ltd & Ors

Mr Tony Hook and Mr Christopher Stott are disabled persons. In unrelated cases each has brought proceedings against an airline complaining of injury to feelings as a result of failure to meet seating needs pursuant to promises made at the time of booking. In Mr Hook’s case the airline is British Airways Plc (BA); in Mr Stott’s case it is Thomas Cook Tour Operators Limited (Thomas Cook). The central issue in the cases is the relationship between, on the one hand, Regulation (EC) No 1107/2006 (the EC Disability Regulation) and the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 S1 2007/1895 (the UK Disability Regulations) and, on the other hand, Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (the first EC Regulation) as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 (the amending EC Montreal Regulation). For convenience, I shall refer to the amended version as the Montreal Regulation.

The Montreal Regulation has a long pedigree going back to the Warsaw Convention of 1929. The Montreal Convention for the Unification of Certain Rules for International Carriage by Air was made on 28 May 1999. It replaced the Warsaw Convention. The European Union is a signatory to it and has ratified the Montreal Convention. BA and Thomas Cook seek to rely on provisions in the Montreal Convention to resist the actions of Mr Hook and Mr Stott. The relevant provisions of the Montreal Convention are Articles 17 and 29, which provide as follows:

“Article 17 - Death and Injury to Passengers and Damage to Baggage

1.

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Article 29 - Basis of Claims

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”

The Montreal Regulation incorporates the Montreal Convention into EU law. Article 3(1) provides:

“The liability of a Community air carrier in respect of passengers and their baggage shall be governed by all the provisions of the Montreal Convention relevant to such liability.”

The EC Disability Regulation and the UK Disability Regulations have a later and different origin. Their immediate prompt was the Proposal for the Regulation of the European Parliament and of the Council concerning the rights of persons with reduced mobility when travelling by air. Com (2005) 47 Final, Brussels, 16 February 2005, which stated in paragraph 1:

“… comparable opportunities for air travel should be open to people suffering the disadvantage of reduced mobility, whether caused by disability, age or some other factor. Passengers with reduced mobility should be confident that their needs will be met throughout the European Community … ”

The EC Disability Regulation contains the following provisions:

“Article 10 – Assistance by air carriers

An air carrier shall provide the assistance specified in Annex II without additional charge to a disabled person or person with reduced mobility departing from, arriving at or transiting through an airport to which this Regulation applies provided that the person in question fulfils the conditions set out in Article 7(1), (2) and (4).”

The “assistance specified in Annex II” includes:

“The making of all reasonable efforts to arrange seating to meet the needs of individuals with disability or reduced mobility on request and subject to safety requirements and availability …

Where a disabled person or person with reduced mobility is assisted by an accompanying person, the air carrier will make all reasonable efforts to give such a person a seat next to the disabled person or person with reduced mobility.

Article 16 – Penalties

The Member States shall lay down rules or penalties applicable to infringements of this Regulation and shall take all the measures necessary to ensure that those rules are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify it without delay of any subsequent amendment affecting them.”

This latter provision gave rise to the UK Disability Regulations, which included:

“Regulation 9: Compensation claims by disabled persons etc

(1)A claim by a disabled person or a person with reduced mobility for an infringement of any of his rights under the EC Regulation may be made the subject of civil proceedings in the same way as any other claim in tort or (in Scotland) in reparation for breach of statutory duty.

(2)For the avoidance of doubt, any damages awarded in respect of any infringement of the EC Regulation may include compensation for injury to feelings whether or not they include compensation under any other head.”

Thus, the battle lines are drawn. BA and Thomas Cook seek to rely on the Montreal Convention and its reception into EU law by the Montreal Regulation. Mr Hook and Mr Stott seek to rely on the EC Disability Regulation and Regulation 9 of the UK Disability Regulations. The Montreal regime is part of a longstanding internationally agreed structure which includes restrictions and limitations on liability. The EC Disability Regulation and the UK Disability Regulations are part of a European innovation in the field of anti-discrimination legislation.

Before turning to the legal analysis, it is necessary to refer to the factual background. In Mr Stott’s case it is based on the findings of the judge at the trial in Manchester County Court. In Mr Hook’s case no trial has taken place because his claim was struck out by the judge in the Central London County Court and his appeal to the High Court was dismissed by Supperstone J. Accordingly, his case falls to be considered on the assumption that his pleaded case is factually correct.

Mr Stott is severely disabled and a permanent wheelchair user. When he travels by air he relies on his wife to assist with his personal needs because he cannot move around the aircraft cabin. On 12 September 2008 a booking was made with Thomas Cook for Mr and Mrs Stott to fly from East Midlands Airport to Zante, departing on 22 September and returning on 29 September. After making the booking Mr Stott spoke to Thomas Cook by telephone to say that he had booked and paid to sit next to his wife on both flights. On 19 September he telephoned again and was assured that he and his wife would be seated together. No problem arose on the outward flight. At the check-in for the return flight, Mr and Mrs Stott were informed that they would not be sitting together. When they protested, a supervisor told them that the problem would be solved at the departure gate. However, at the gate they were told that other passengers had already boarded and the seat allocation could not be changed. When Mr Stott had boarded, his wheelchair overturned and he fell to the cabin floor. No-one present seemed to know what to do. Mr Stott felt very embarrassed, humiliated and angry. Mrs Stott was also very distressed. Mr Stott was then seated in an aisle seat in front of his wife. It was very difficult for her to assist with his catheterisation and other personal needs during the flight. No assistance was forthcoming from the cabin crew.

At the trial, the judge granted a declaration that Thomas Cook had breached Mr Stott’s rights under the EC Disability Regulation but dismissed the claim for damages by reference to the Montreal Convention. Thomas Cook does not challenge the declaration, but Mr Stott appeals against the rejection of the claim for damages. But for the Montreal Convention, the judge would have awarded damages in the sum of £2,500 for injury to feelings but would have made no award of aggravated damages.

Mr Hook suffers from mobility and learning disabilities. On 26 July 2008, accompanied by members of his family, he flew with BA from Gatwick to Paphos, returning on 10 August. On both flights seating arrangements which had been promised by BA in advance did not materialise. As a result his needs as a disabled person were not met. This created difficulties for him and his family. They all found the flights very distressing and they have resolved not to fly again. In response to Mr Hook’s claim for damages and a declaration pursuant to the EC Disability Regulation and the UK Disability Regulations, BA applied to strike out the damages claim by reference to the Montreal Convention. Its application was successful in the Central London County Court and Mr Hook’s appeal was dismissed by Supperstone J whose judgment has the neutral citation [2011] EWHC 379.

It is common ground that the Montreal Convention governs events from boarding until disembarkation. Breaches of the EC Disability Regulation or the UK Disability Regulations have a broader temporal scope. An airline may fail to meet the requirements of a disabled person not only as a result of an act or omission occurring between boarding and disembarkation, but also as a result of administrative or service deficiencies occurring between booking and boarding (for example, failure to process promised arrangements) or after disembarkation (for example, within the airport terminal). Moreover, a wrongful act or omission occurring before boarding, if unrectified, may cause distress which only crystallises on board. It will be necessary to return to these and other variables later but they must be kept in mind when considering the legal issues. At this stage I simply record that a central submission on behalf of Mr Scott and Mr Hook, supported by the intervention of the Secretary of State for Transport, is that the EC Disability Regulation and the UK Disability Regulations are not in conflict with the Montreal Convention but are complementary or supplementary to it. The former have as their object the improvement of access to air travel for disabled persons and operate at a gateway level. Their aim is to assume that, when a disabled person contemplates air travel, he will have increased confidence that his requirements will be met.

Before turning to the legal issues, it is appropriate to refer to two of the many authorities cited to us. Between them they provide a flavour of what is to follow.

Sidhu v British Airways PLC

This case, [1997] AC 430, is at the heart of the airlines’ submissions. The unfortunate plaintiffs were on a flight from London to Kuala Lumpur via Kuwait. It landed in Kuwait in the early hours of 2 August 1990, a few hours after the Iraqi invasion of Kuwait had begun. Some of the passengers were permitted to leave the aircraft and they went to the transit lounge. Shortly afterwards, the airport was attacked and taken over by Iraqi forces. The passengers and crew were detained by the Iraqis and not released until 21 August 1990. They claimed damages against the airline at common law for personal injuries caused by negligence. The airline applied for the dismissal of the action because it was time-barred under the Warsaw Convention (as amended) which was part of English law by reason of Schedule 1 to the Carriage by Air Act 1961. At first instance, in the Court of Appeal and in the House of Lords it was held that the plaintiffs had no rights save under the Convention and that any such rights were time-barred. The headnote describes the holdings of the Appellate Committee as follows:

“… that the issue was the meaning of the Convention as a whole, rather than the Act of 1961 and it had to be given a purposive construction; that although the Convention was a partial harmonisation of the rules relating to international carriage by air it was comprehensive in respect of the issues covered; that under the Convention carriers surrendered their freedom to limit or exclude liability in damages to passengers in exchange for the conditions and limits on claims set by the Convention; and that, accordingly, where the Convention had not provided a remedy, no remedy was available either under the common law or otherwise.”

The only substantive judgment was given by Lord Hope, who said (at page 453):

“The language used [in the Convention] and the subject-matter with which it deals demonstrate that what was sought to be achieved was a uniform international code, which could be applied by the courts of all the high contracting parties without reference to the rules of their own domestic law. The Convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those cases with which it deals – and the liability of the carrier is one of them – the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law …

It was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available. So it set out the limits of liability and the conditions under which claims to establish that liability, if disputed, were to be made. A balance was struck, in the interests of certainty and uniformity.”

A little later (at page 454), he added:

“The domestic courts are not free to provide a remedy according to their own law, because to do this would be to undermine the Convention. It would lead to the setting alongside the Convention of an entirely different set of rules which would distort the operation of the whole scheme.”

Sidhu was central to the reasoning of the courts below in the cases giving rise to the present appeals.

R (ota) International Air Transport Association (IATA) v Department of Transport

This decision of the Grand Chamber of the ECJ, [2006] 2 CMLR, arose out of a challenge by way of judicial review to the decision of the Department of Transport to implement Articles 5, 6 and 7 of Regulation 261/2004 which established new Community rules on immediate standardisation and assistance that airlines should give to passengers who have been denied boarding or whose flights have been cancelled or subject to long delays. The challenge asserted, inter alia, inconsistency with the Montreal Convention and lack of legal certainty. The ECJ distinguished between (i) delay causing damage that was almost identical for every affected passenger, redress for which might take the form of standardised and immediate assistance for everybody concerned through the provision of food, accommodation, telephone facilities and the like, and (ii) delay causing passengers to suffer individual damage, inherent in their personal reason for travelling, redress for which required a case-by-case assessment on the basis of individual claims. Whereas Article 29 of the Montreal Convention applied to the latter, it did not follow that the Convention was intended to shield carriers from other forms of intervention such as standardised and immediate assistance. The critical parts of the judgment are contained in these passages:

“44.

It is clear from Articles 19, 22 and 29 of the Montreal Convention that they merely govern the conditions under which, after a flight has been delayed, the passengers concerned may bring actions for damages by way of redress on an individual basis, that is to say for compensation, from the carriers liable for damage resulting from that delay …

46.

The Montreal Convention could not … prevent the action taken by the Community legislature to lay down, in exercise of the powers conferred on the Community in the fields of transport and consumer protection, the conditions under which damage linked to … inconvenience should be redressed. Since the assistance and taking care of passengers envisaged by Article 6 of Regulation 261/2004 in the event of a long delay to a flight constitute such standardised and compensatory measures, they are not among those whose institution is regulated by the Commission. The system prescribed by Article 6 simply operates at an earlier stage than the system which results from the Montreal Convention.

47.

The standardised and immediate assistance and care measures do not themselves prevent the passengers concerned, should the same delay also cause them damage conferring entitlement to compensation, from being able to bring in addition actions to redress that damage under the conditions laid down by the Montreal Convention.

48.

Those measures, which enhance the protection afforded to passengers’ interests and improve the conditions under which the principle of restitution is applicable to passengers, cannot therefore be considered inconsistent with the Montreal Convention.”

Mr Robin Allen QC for Mr Stott and Mr Hook, supported by Ms Kassie Smith for the Secretary of State, seeks to put the present claims for damages for injury to feelings of disabled passengers into a similar analytical framework. It is suggested that claims pursuant to Regulation 9 of the UK Disability Regulations, deriving from Articles 10 and 16 of the EC Disability Regulation, are not inconsistent with the Montreal Convention because, to use the imagery deployed by Ms Smith, the UK and EC Regulations “occupy a different legal space” and because they are concerned with the logically prior question of access to air travel.

The question thus becomes: is this a Sidhu-type case or an IATA-type case?

In his skeleton argument, Mr Allen summarises his submissions as follows:

a)

“The EC Disability Regulation was made to give effect to fundamental rights and to give access to air travel for disabled persons which they would not otherwise have.

b)

As a matter of European law, each Member State must provide disabled persons with an effective, proportionate and dissuasive remedy for breach of the EC Disability Regulation.

c)

In accordance with the EC Disability Regulation and general principles of Union law, the UK was entitled to make the UK Disability Regulations and make provision for actions for damages including damages for injury to feelings.

d)

The principle of exclusivity set out in Sidhu does not have the effect for which it has been cited and the reach and effect of the Montreal Regulation has been overextended by the Courts below. Rather the Montreal Convention and the Montreal Regulation are irrelevant to the Appellants’ claims because they are simply not concerned with the subject-matter of the EC Disability Regulation.

e)

Alternatively, the Montreal Regulation cannot overrule the requirements of the EC Disability Regulations being later in time and made to give effect to fundamental rights.”

In advancing these submissions, Mr Allen seeks to emphasise the history and evolution of the legislation. One strand of development began with the Warsaw Convention of 1929 which eventually gave rise to Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents, the purpose of which was expressly stated to be “to improve the level of protection of passengers involved in air accidents” (Recital (1)). Its assumption was that the Warsaw Convention required revision. The Montreal Convention was then promulgated on 28 May 1999. It was signed by the European Community on 9 December 1999 and eventually came into force in the European Union on 28 June 2004.

In the meantime, a second strand of development was discernible at a European level from 2000, beginning with the Communication from the Commission to the European parliament and the Council: Protection of Air Passengers in the European Union, (COM (2000) 365 Final Brussels, 12 June 2000 (the Communication). It stated (at page 5):

“Apart from the Warsaw Convention of 1929 (amended in 1999 by the Montreal Convention) dealing above all with the liability of air carriers in the case of accidents, loss of baggage and delays, and general national and Community legislation on consumer protection, little was done in the past to protect our passengers.”

Then, under the heading Case for further Action, it stated (at page 7):

“The [Amsterdam] Treaty also commits the Community to combat discrimination on the grounds of disability and to take into account the needs of disabled people for measures relating to the internal market.”

Then (at page 13):

“Disabled people … must be able to count on similar treatment in order to plan their journeys in advance and to avoid unpleasant surprises when making them.”

At about the same time, the European Charter of Fundamental Rights (the Charter) was published. It was signed by the Presidents of the European Parliament, the Council and the Commission at Nice on 7 December 2000. Article 21 (reflecting Article 13 of the EC Treaty and, now, Article 14 of the TFEU) prohibits discrimination on numerous grounds including disability and Article 26 further provides:

“The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.”

All this, submits Mr Allen, set the scene for the free-standing EU legislation which would, in various ways, supplement the protection of air passengers in relation to matters not addressed by the Montreal Convention.

The first manifestation of such legislation was Regulation (EC) No 261/2004 of 11 February 2004 which prescribed common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. This was the Regulation considered by the ECJ in the IATA case (paragraph 13, above). In relation to compensation, it provided not only for fixed sums (Article 7) but also for the possibility of “further compensation” (Article 12).

The next and, for present purposes, final development of the second strand was the EC Disability Regulation itself. It was the fulfilment of the Proposal for a Regulation of the European Parliament and of the Council concerning the rights of persons with reduced mobility when travelling by air published by the Commission in 2005. The Proposal stated (at page 1):

“… poor access to [air travel] can severely impede the integration of many citizens, to the detriment of society as a whole. Consequently, comparable opportunities for air travel should be open to people suffering the disadvantage of reduced mobility, whether caused by disability, age or some other factor. Passengers with reduced mobility should be confident that their needs will be met throughout the European Community, whatever airline or airport they plan to use.”

This policy came to be reflected and advanced in Articles 10 and 16 of the EC Disability Regulation and its progeny, Regulation 9 of the UK Disability Regulations. The submission is that what I have called “the second strand” can be seen from this history to be a permissible European protective structure unaffected and uninhibited by, but complementary to, the Montreal Convention. As I have said, the submission is supported by the Secretary of State.

The principal submission for Mr John Kimbell on behalf of the airlines is that the case for Mr Hook and Mr Stott transgresses the principle of exclusivity established by Article 29 of the Montreal Convention and illustrated by Sidhu. He relies on numerous authorities from various jurisdictions in support of this submission and I shall refer to some of them later. At this stage, I refer to two American cases upon which he places particular reliance. In Tseng v El Al Israel Airlines (1999) SCt 662, Justice Ginsburg cited Sidhu with approval. In rejecting a claim for psychological harm, she said (at page 161) that a claim for damages

“if not allowed under the [Warsaw] Convention is not available at all.”

In King v American Airlines (2002) 284 F. 3d 352 the US Court of Appeals for the Second Circuit was concerned specifically with a discrimination claim. Mr King claimed to have been “bumped” off a flight on account of his race. Judge Sotomayor (now Justice Sotomayor of the Supreme Court) said:

“The aim of the Warsaw Convention is to provide a single rule of carrier liability for all injuries suffered in the course of international carriage of passengers and baggage. As [Tseng] makes clear, the scope of the Convention is not dependent on the legal theory pled nor on the nature of the harm suffered …

Notably, every court that has addressed the issue of whether discrimination claims are pre-empted by the Warsaw Convention post-Tseng has reached a similar conclusion.”

The South African case of Potgieter v British Airways PLC (2005) (2) SA 133(c) is to like effect.

These cases were concerned with events occurring during or after boarding and before disembarkation. Mr Kimbell accepts that the Montreal Convention does not impact upon claims when the injury is suffered prior to boarding (Ross v Ryanair) [2005] 1 WLR 2447) or after disembarkation (Adatia v Air Canada).

The emphasis which Mr Kimbell places on authorities from other jurisdictions is put by reference to the principle of international comity. In Morris v KLM [2002] 2 AC 628, Lord Mackay said (at paragraph 7):

“Because I consider that the Warsaw Convention should have a common construction in all the jurisdictions of the countries that have adopted the Convention, I attach crucial importance to the decisions of the United States Supreme Court in [inter alia] … Tseng … particularly as the United States is such a large participant in carriage by air.”

The same approach was articulated by Lord Mance in the Deep Vein Thrombosis case [2006] 1 AC 495 (at paragraph 55).

Turning to the European context, Mr Kimbell submits that the Montreal Convention is an integral part of the European legal order and that neither the EC Disability Regulation nor the UK Disability Regulations can override it. In Wallentin-Herman v Alitalia – Linee Acree Italiano [2008] ECR I – 11061 the Court of Justice said (at paragraph 28):

“… it must be stated that the [Montreal] Convention forms an integral part of the Community legal order. Moreover, it is clear from Article 300(7) EC [now Article 216(2) TFEU] that the Community institutions are bound by agreements concluded by the Community and, consequently, that those agreements have primacy over secondary Community legislation.”

Similarly, secondary domestic legislation - in this case the UK Disability Regulations - cannot override primary domestic legislation. The Carriage by Air Act 1961 (as amended) incorporates the Montreal Convention into domestic law: section 1. “Community air carriers” (which include BA and Thomas Cook) are taken out of section 1 of the Carriage by Air Act (section 1 (2)) but by Article 3 of the First EC Regulation their liability in respect of passengers and their baggage “is governed by all provisions of the Montreal Convention relevant to such liability”. Accordingly, submits Mr Kimbell, there is no “legal space” for the UK Disability Regulations to occupy in the sense contended for by Mr Hook, Mr Stott and the Secretary of State. The exclusivity of the Montreal Convention prevails.

Finally, Mr Kimbell submits that the invocation of fundamental rights takes the matter no further. There is no fundamental right to damages for injury to feelings on the part of disabled passengers. The UK Disability Regulations provide criminal and administrative sanctions. These are “effective, proportionate and dissuasive” within the meaning of Article 16 of the EC Disability Regulation, which did not and could not provide a basis for undermining the exclusivity of the Montreal Convention.

A claim for compensation pursuant to Regulation 9 of the UK Disability Regulations relates to “an infringement of any … rights under the EC Regulation”. It is common ground that where the act or omission constituting the infringement and the consequential injury, loss or damage occurred before boarding or after disembarkation, the Montreal Convention does not apply and, in principle, there is no impediment to a claim for damages, including compensation for injury to feelings. However, the timeline may be more complicated. The act or omission, or a substantial part of it, may occur before the commencement of boarding (for example, an administrative failure to make the necessary arrangements to ensure appropriate and promised seating) but the real injury, loss or damage may only crystallize on board. The “assistance” to disabled persons required by Article 10 and Annex II of the EC Disability Regulation plainly contemplate steps taken before and after the period which begins with boarding and ends with disembarkation, as well as in the course of carriage. By way of example, in the case of Mr Stott, the findings suggest that there were continuing failures by Thomas Cook staff to take steps to fulfil the assurances given to Mr Stott about seating, at least in relation to the return flight. However, the temporal question is: when were Mr Stott’s feelings truly injured? If the answer is “only when he boarded”, the Montreal Convention issue becomes crucial.

I shall now address the issues arising on these appeals under a number of sub-headings.

The domestic authorities

The leading domestic authority is Sidhu which I described at paragraphs 11 and 12 above. It is clear authority for the exclusivity of the Convention “in those cases with which it deals” (Lord Hope at page 453). Earlier in his speech (at page 437G), Lord Hope referred to the Warsaw Convention providing “an exclusive cause of action and remedy in respect of claims for loss, injury and damage sustained in the course of, or arising out of, international carriage by air”. He also identified (at page 441F) “the stark issue” of “whether a passenger who has sustained damage in the course of international carriage by air due to the fault of the carrier, but who has no claim … under … the Convention, is left without a remedy” (emphasis added). That was indeed the conclusion. I should refer to one other passage (at page 447 F-H) where he said:

“The intention seems to be to provide a … regime, within which the restriction on the carrier’s freedom of contract is to operate. Benefits are given to passengers in return, but only in clearly defined circumstances to which the limits of liability set out by the Convention are to apply. To permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier. Thus the purpose is to ensure that, in all questions relating to the carrier’s liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action. The carrier does not need to make provision for the risk of being subjected to such remedies, because the whole matter is regulated by the Convention.”

On any view, these are expansive words of great generality.

An early application of Sidhu in this jurisdiction was Chaudhari v British Airways PLC (unreported, 16 April 1997) in which the Court of Appeal upheld the striking out of a claim by a disabled passenger whose complaint related to injury caused during a flight because of allegedly negligent seating and lack of facilities. Before long, Sidhu was also informing the decision of the US Supreme Court in Tseng (paragraph 24, above). Tseng was itself followed by the House of Lords in Morris v KLM Royal Dutch Airlines, (see, paragraph 27, above; especially, Lord Steyn at paragraphs 14-15). The same approach is apparent in the Deep Vein Thrombosis case in which the pleaded cause of action related to what the airlines “knew or ought to have known prior to the flight”. The issue was whether the onset of DVT sustained during the course of, or arising out of, international carriage by air was capable of being “an accident” causing bodily injury within the meaning of Article 17 of the Warsaw Convention. It was not. The case is notable for its references to the need for consistent interpretation of the Convention in all signatory States (see paragraph 27, above).

Although these domestic authorities all related to the Warsaw Convention, they are equally referable to the Montreal Convention: Barclay v British Airways PLC [2010] QB 187, 192A, per Laws LJ.

It is abundantly clear from these authorities that, “in those cases with which it deals”, the Montreal Convention has exclusivity in domestic law.

CJEU authorities

I have already referred (paragraph 13, above) to IATA. In dealing with delays, cancellations and denied boarding, it was, in terms, addressing situations which “operate at an earlier stage than the system which results from the Montreal Convention” (Judgment, paragraph 46) and “cannot … be considered inconsistent with the Montreal Convention” (Judgment, paragraph 48). Rehder v Air Baltic [2010] Bus LR 549 is another cancellation case in Luxembourg to like effect (see Judgment, paragraph 27), which describes Regulation 261/2004 and the Montreal Convention as falling within “different regulatory frameworks”. Walz v Clickair SA [2011] Bus LR 855 was concerned with the loss of checked-in baggage during a flight from Barcelona to Porto. In applying the Montreal Convention, the CJEU referred (at paragraph 20) to the Convention as “an integral part of the European legal order”. It added (at paragraphs 35-36):

“… in the various situations in which a carrier is held liable pursuant to … the Montreal Convention, the ‘equitable balance of interests’ … requires that there be clear limits on compensations relating to the total damage sustained by each passenger in each of those situations, regardless of the nature of the damage caused to that passenger.

Indeed, a limitation of the compensation so designed enables passengers to be compensated easily and swiftly, yet without imposing a very heavy burden of damages on air carriers, which would be difficult to determine and to calculate, and would be liable to undermine, and even paralyse, the economic activity of those carriers.”

The most recent European authority is Rodriguez v Air France (CJEU, Third Chamber, 13 October 2011, Case C-83/10). Like IATA, it is a delay case involving compensation claims in the context of Regulation 261/2004. The claimants sought the fixed amounts set out in the Regulation and, in some cases, additional compensation pursuant to national law for non-material damage. Article 12 of the Regulation permits “further compensation”. Mr Allen seeks to draw support from this case but it seems to me that it does not assist him. To borrow the language of IATA, Rodriguez is about circumstances which “operate at an earlier stage than the system which results from the Montreal Convention” and so it was permissible for the Regulation and national law to provide for “further compensation” without trespassing upon the territory of the Montreal Convention.

Authorities from other jurisdictions

In view of the obligation to strive for uniformity of interpretation, it is particularly appropriate to take into account authorities from other jurisdictions. Most of those referred to by counsel are from the United States. I have already referred to Tseng and King (paragraphs 24 and 25, above). It is worth saying a little more about their facts. The plaintiff in Tseng complained about an intrusive security search immediately prior to boarding. She was then permitted to board. Her pleaded causes of action included assault and false imprisonment but she alleged no bodily injury. The Supreme Court (Justice Stevens dissenting) concluded that her claim was defeated by the exclusivity of the Convention. In view of the fact that the search took place in a room prior to the physical act of boarding and, I infer, the injury to feelings must have been sustained to a real level at that point, it illustrates a broad, and certainly not a pedantic, approach to the concept of boarding.

The claimants in King had a booking with American Airlines from New York to Freeport, Grand Bahamas, with a change at Miami. They were “bumped” at Miami. Upon arrival they were told that the Freeport flight was overbooked and were offered compensation to give up their seats, which they declined. After they had been permitted to board a bus for transportation from the terminal to the aircraft, their boarding passes were confiscated and they were not allowed to board. They alleged discrimination on the ground of race. The Court held their claim to be defeated by the Convention. I have set out the most relevant passages at paragraph 25, above. Again, the decision points to a broad approach to the temporal question in relation to the period of carriage, probably on the basis that it ran from boarding in New York to expected disembarkation in Freeport. Towards the end of her judgment, Judge Sotomayor referred to a submission on behalf of the plaintiffs that a decision against them would “open the doors to blatant discrimination aboard … flights, invoking images of airline passengers segregated according to race and without legal recourse”. In rejecting the submission, she referred to the case of Turturro, 128 F. Supp 2d at 181, and cited this passage:

“The Convention massively curtails damages awards for victims of horrible acts of terrorism; the fact that the Convention also abridges recovery for … discrimination should not surprise anyone.”

Waters v Port Authority of New York and New Jersey, 158 F.Supp.2d 415, is a recent United States District Court case involving disability discrimination and is to like effect (see, in particular, pages 428-429).

The final American authority to which I should refer is Wysotski v Air Canada [2006] WL 581093, a decision of a Californian District Court. Technically a baggage claim, it related to a lost cat and included an allegation of negligent infliction of emotional distress. Breyer J said:

“The Warsaw Convention … would cease to be an exclusive remedy – and the Supreme Court’s opinion in [Tseng] would be gutted – if plaintiffs who could not assert state-law claims for the act itself were nonetheless permitted to sue under state law for ex ante representations that the act would not occur or ex post failure to redress the harm.”

This is some persuasive authority on the temporal question.

I complete this summary of Mr Kimbell’s global tour by simply recording his citation of the South African case of Potgieter v British Airways PLC (2005) (2) SA 133 (C), which draws on, inter alia, Sidhu and Tseng and the Virgin Islands case of Sever v Liat (1974) Ltd, 16 February 2011, Case No 04/76, another “bumping” case which resulted in a race discrimination claim. The “bumping” culminated in the physical removal of the plaintiff from the overbooked aircraft. The judgment, in rejecting the claim on Convention grounds, contains the most recent review of the authorities to which I have referred.

What does one take from the authorities from other jurisdictions? They plainly show a consistent approach, unequivocally applying the exclusivity principle and doing so in an expansive way. They offer no support to Mr Hook and Mr Stott.

Fundamental rights and effective remedies

At its highest, the case for Mr Hook and Mr Stott is that protection against discrimination on grounds of disability is a fundamental right recognised as such by EU law: see Article 19 of TFEU and Articles 21 and 26 of the European Charter of Fundamental Rights (the Charter). In Marshall v Southampton and South West Hampshire Health Authority (Teaching) (No 2) [1993] ICR 893, the ECJ stated (at paragraph 24):

“… the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. As the Court stated in the Van Colson case, those measures must be such as to guarantee real and effective judicial protection and have a real deterrent effect … ”

No one doubts this general principle or its importance. However, its application to a particular case has to be seen in the context of that case.

Two initial points seem to me to be of particular relevance in the present context. First, within its own terms, the EC Disability Regulation and, in particular Article 10, say nothing mandatory about a compensatory remedy. The relevant recitals are in the following terms:

“(15)

Member States should supervise and ensure compliance with this Regulation and designate the appropriate body to carry out enforcement tasks. This supervision does not affect the rights of disabled persons and persons with reduced mobility to seek legal redress from courts under national law

(18)

Member States should lay down penalties applicable to infringements of this Regulation and ensure that those penalties which could include ordering the payment of compensation to the person concerned, should be effective, proportionate and dissuasive.” (Emphasis added)

Article 16, headed “Penalties”, then provides:

“The Member States shall lay down rules on penalties applicable to infringements of this Regulation and shall take all necessary measures to ensure that those rules are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission and shall notify it without delay of any subsequent amendment affecting them.”

Thus, the emphasis is on penalties. The reference to compensation in Recital (18) is no more than discretionary – “could include”. It was certainly not seen as essential to effectiveness. In the United Kingdom, Regulations 3 and 4 of the UK Disability Regulations provide a criminal sanction for breach of the obligations imposed by the EC Disability Regulation. The Civil Aviation Authority is the designated enforcement body. Article 15 of the EC Disability Regulation also requires a complaints procedure and the Equality and Human Rights Commission is the designated complaints body in the United Kingdom. We have been provided with material which shows that the UK structure for enforcement and complaints substantially reflects the structures adopted in the other Member States. Such combinations of criminal sanctions and administrative complaints machinery do not come into conflict with the Montreal Convention which is solely concerned with civil liability and damages. In my judgment, it cannot be said that only by permitting a civil claim for damages for injury to feelings is it possible to ensure that the rights created by the EC Disability Regulation and its enforcement are “effective, proportionate and dissuasive”. I come to this conclusion without regard to an ancillary point made by Mr Kimbell, namely that a Magistrates Court convicting an errant airline might make a criminal compensation order in any event. A victim has no right to such an order and it seems to me that it is not a persuasive point on this issue.

Secondly, I accept the submission on behalf of BA and Thomas Cook about the place of the Montreal Convention in the European legal order. It is well supported by authority: see Wallentin-Herman (paragraph 28, above). In the IATA case, the Opinion of Advocate General Geelhoed was clear (at paragraph 32):

“The Community is party to the Montreal Convention and there is no doubt that the Community is bound by this Convention … there was an obligation to refrain from adopting Community legislation which could be incompatible with the Montreal Convention.”

It is therefore incumbent upon us to construe EU and domestic legislation so as to avoid a conflict with the Montreal Convention. To the extent that the EC Disability Regulation permitted (but did not require) domestic compensatory remedies, and to the extent that Regulation 9 of the UK Disability Regulations provides one, it is axiomatic that they should be construed, if they can be, in a manner consistent with the Montreal Convention. This militates strongly against a conclusion that, in order to be “effective, proportionate and dissuasive” the remedial structure must embrace something which would bring it into conflict with the Montreal Convention. Such a conclusion would be wrong.

Nor, in my judgment, does the Charter strengthen the appellants’ case. Whilst it provides further recognition of disability rights as fundamental rights, it cannot be said to amount to or reflect a reordering of the normative provisions with which we are concerned. It is unnecessary to embark on an analysis of the status of the Charter in EU law, in particular in relation to the special provision about the United Kingdom. Assuming the position about that which is most favourable to the appellants, it takes the present case no further.

The wheelchair provision

In the course of submissions there was some debate about the potential significance of Article 12 of the EC Disability Regulation. Under the heading Compensation for lost or damaged wheelchairs, other mobility equipment and assistive devices, it provides:

“Where wheelchairs or other mobility equipment or assistive devices are lost or damaged whilst being handled at the airport or transported on board aircraft, the passenger to whom the equipment belongs shall be compensated in accordance with the rules of international, Community and national law.”

It seems to me that this provision casts little light on the issue in the present appeals. It cannot and does not purport to invade the exclusivity of the Montreal Convention “in those cases with which it deals”.

Sea change?

The next question is whether it can be said that the events which began to unfold at a European level from about 2000 enable or require us to identify the “second strand” to which I referred earlier (paragraphs 18-23, above) so as to conclude that the EC Disability Regulation and the UK Disability Regulations represent a new departure in protective legislation which now occupies legal space left vacant by the Montreal Convention. Clearly, the Montreal Convention is not all-embracing in the sense of covering every manifestation of the relationship between a passenger and an airline. Cases such as IATA and Ross v Ryanair (paragraph 26, above) demonstrate that. However, once one is within the timeline and space governed by the Convention, it is the governing instrument in international, European and domestic law. It was open to the EU and domestic legislatures to develop the law in relation to such things as the improvement of access for disabled passengers and assistance to passengers affected by delays or cancellations, provided that they did not trespass into the domain of the Convention. They have done so. In identifying that domain, it was and is not appropriate to apply a novel approach to the construction of the Convention by reference to a perceived second strand or sea change in the European instruments. Nor would it be appropriate to depart from the comity approach which extends beyond the Member States of the European Union. The scope of the Convention cannot have been altered by these European developments.

Drawing all this together, I am satisfied that the case for Mr Hook and Mr Stott is unsustainable. The real injuries to their feelings (for which they deserve and have my sympathy) were sustained at times when the Montreal Convention governed their situations. Its exclusivity both provided and limited their rights and remedies. Accordingly, their claims for compensation for injury to feelings could not succeed. For all the reasons I have set out in this judgment, I would dismiss their appeals.

I agree.

I also agree.