Bird strikes on aircraft can’t be considered “extraordinary circumstances” under EU Regulation 261 and passengers are entitled to compensation for delays, according to the Advocate General of the European Court of Justice.
The Advocate General issued the opinion yesterday on a Czech case referred to the ECJ.
A spokesman for UK law firm Bott & Co, which specialises in delay compensation, said the opinion “could open the door for £84 million in compensation to UK passengers, many of whom have claims on hold”.
The Advocate General’s opinion is not legally binding, but the ECJ is expected to rule in line it.
Bott & Co described it as “the biggest blow to airlines’ hopes of arguing bird strikes are an extraordinary circumstance”.
The law firm is pursuing a claim against easyJet in the lead case in the UK involving a bird strike, which is due to be heard at Luton County Court in September.
Kevin Clarke, a flight delay compensation litigator at Bott & Co, said: “We’ve always argued bird strikes are claimable cases. We’re delighted the Advocate General has confirmed that interpretation.”
Referring to EU Regulation 261 on air passenger rights, Clarke said: “As much as airlines find this unpalatable, this regulation is designed to provide a high level of protection for passengers and the courts routinely interpret it as such.
“Passengers are entitled to this compensation and they should receive it as soon as possible.”
Bott & Co cited CAA data suggesting there are about 1,500 confirmed reports of bird strikes each year. However, CAA data for 2011-13 shows between 2,219 and 2,467 bird strikes a year.
Lawyers acting for the industry argue airlines can still resist compensation claims for delays due to bird strikes.
Sue Barham, of law firm Holman Fenwick Willan, told an Abta law seminar in May: “Claimants, egged on by claims companies, are pushing the boundaries of what airlines are expected to pick up the tab for.
“The starting point seems to be if something could happen, airlines have to expect it. Whether an event is beyond the control of the airline is no longer relevant.”
But she said airlines are successfully defending bird strike claims, suggesting: “The key is to show evidence of how seldom birds strike the airline’s aircraft.”
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