Sunday, July 21, 2024

Daniel Isenberg successful in important Supreme Court case on EU law claims after Brexit | 11KBW

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The Supreme Court has handed down judgment in Lipton v BA Cityflyer Ltd, unanimously dismissing the airline’s appeal.

The appeal concerned the Liptons’ right to compensation arising from delayed travel from Milan to London in January 2018 where their flight had been cancelled because the pilot was ill and a replacement could not be found.  The substance of the claim turned on whether this amounted to “extraordinary circumstances“, which gives the airline a defence to compensation claims under Regulation (EC) 261/2004.  The Justices unanimously held that it did not.

However, there was a prior issue “potentially of much broader significance“, namely which law is to be applied in cases where the cause of action ‘accrued’ prior to Brexit, but the matter came for determination once the UK was no longer a Member State of the EU, and after the so-called ‘implementation period’. 

The majority of the Court accepted the Liptons’ approach, which it described as the ‘Complete Code analysis’ – namely that European Union (Withdrawal) Act 2018 dealt comprehensively with how EU law and rights and claims thereunder were to be to be applied in the UK following the end of the implementation period.  In doing so, it rejected the ‘Interpretation Act analysis’ (favoured by Lord Lloyd-Jones in his dissent), which was to the effect that the 2018 Act was primarily prospective in effect, without impacting claims that had accrued prior to Brexit, on the basis of section 16 of the Interpretation Act 1978, which provides that, unless the contrary intention appears, repeal of an enactment does not impact rights accrued under that enactment.

Daniel Isenberg appeared for the successful Respondents, led by Michael Rawlinson KC and Max Archer, instructed by Oliver Studdert and Demetrius Danas of Irwin Mitchell LLP.  The judgment is available here.

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