Flight Delay Compensation: Extraordinary Circumstances and the Test

Retained Regulation (EC) 261/2004 ("UK261") applies to:

• Flights departing from a UK airport (any airline).
• Flights arriving in the UK on a UK or EU airline.

Compensation:

• £220 for flights up to 1,500km delayed 3+ hours.
• £350 for flights 1,500-3,500km delayed 3+ hours.
• £520 for flights over 3,500km delayed 4+ hours (£260 if 3-4 hours).

The right to compensation triggers on a 3-hour delay on arrival, regardless of why the airline assigns responsibility. The airline can only escape liability by proving extraordinary circumstances under Article 5(3).

Wallentin-Hermann v Alitalia [2008] (CJEU C-549/07) is binding precedent in retained UK261 law. The two-limb test:

1. Limb 1: The event is not inherent in the normal exercise of the airline's activity.
2. Limb 2: The event is beyond the actual control of the airline.

Even if both limbs are met, the airline must also show that the delay could not have been avoided even if all reasonable measures had been taken. This is the "reasonable measures" requirement — the airline must demonstrate they tried to mitigate.

The CJEU has consistently held that the test is strict. Airlines that cannot produce specific evidence of:

• What the extraordinary event was;
• How it caused the delay;
• What measures they took to avoid the delay;

...usually lose on appeal or in court.

Established as extraordinary:

• Air Traffic Control restrictions or strike — third-party event. Air traffic control is not the airline's responsibility.
• Severe weather closing the airport or making the flight unsafe. The airline must show the weather genuinely affected this flight, not just an earlier one.
• Security threats — bomb scares, terror alerts.
• Hidden manufacturing defects discovered after the aircraft has been in service — Wallentin-Hermann itself. The defect must be unknown to the airline, attributable to the manufacturer, and not have been reasonably discoverable through routine maintenance.
• Bird strike (CJEU Pešková v Travel Service [2017]). But the airline must show it took reasonable measures to inspect and clear the bird strike before flying.
• Lightning strike causing technical damage.
• Airport closure due to a third-party event (snow, volcanic ash, oil spill on runway).
• Third-party industrial action — e.g. ground handler strike.

Established as NOT extraordinary:

• Routine technical problems — Van der Lans v KLM [2015] (C-257/14). Faults discoverable through normal maintenance are inherent in airline operations.
• The airline's own industrial action — Krüsemann v TUIfly [2018]. A "wildcat strike" by airline staff in response to a corporate restructuring announcement is part of the airline's normal commercial risk.
• Crew shortage — whether due to sickness, scheduling, or training issues.
• Knock-on delays from earlier flights — if the earlier delay was within the airline's control, the consequent delay also is.
• Fuel shortages at the airport (usually a contractual matter between airline and fuel provider).
• Booking system failures, IT problems.
• Lost flight slots caused by the airline's own poor scheduling.

When airline rejects your claim citing extraordinary circumstances:

1. Demand evidence in writing — what exactly was the extraordinary event, what measures did they take. The airline bears the burden of proof. Vague refusals ("technical issue", "operational reasons") are not sufficient.
2. Cross-check against known events — flightradar24.com, NATS announcements, weather records for the day, airport news. Many airline excuses do not match reality.
3. Submit a formal complaint to the airline citing the specific case law (Wallentin-Hermann, Van der Lans). Airlines often capitulate at this stage.
4. Escalate to ADR — most UK airlines have signed up to AviationADR or CEDR. Free for consumers. Decision usually within 90 days. Binding on the airline if you accept it.
5. If no ADR or rejection is final, claim in the small claims court — Money Claim Online at moneyclaim.gov.uk. Court fee £35-£70 depending on amount. Limitation 6 years from the flight.

You can also use a claims-handling firm but they typically take 25-35% of the award. Direct claim is usually cheaper.