Mr and Mrs Lipton were represented at the Supreme Court by Michael Rawlinson KC and Corinne Novell of 12KBW, Max Archer (formerly of 12KBW) and Daniel Isenberg of 11KBW instructed by Irwin Mitchell.

The post below is by Michael Rawlinson KC and Corinne Novell of 12KBW. This case has been widely reported in the media including the BBC, Independent and Evening Standard.

1. The Supreme Court has now handed down Judgment in Lipton v BA Cityflyer [2024] UKSC 24. This small claim has been considered by every tier of the civil Judiciary (DDJ Printer 28.06.19; first appeal by HHJ Iain Hughes KC on 11.02.20; the Court of Appeal (Coulson, Green and Haddon-Cave LJJ) who handed down Judgment on 30.03.21 and now the Supreme Court (Lords Lloyd-Jones; Sales; Burrows and Ladies Rose and Simler JJSC). That is 10 Judges in total!

2. The claim arose out of a flight cancelled on the evening of 30.01.18 (the date will become important). Mr and Mrs Lipton were travelling from Milan to London City Airport but owing to the cancellation they arrived some 2 ½ hours later than they should have done. The flight was cancelled owing to the unspecified illness of the pilot. The Liptons each claimed the fixed sum of 250 Euros they said that they were entitled to arising from the delay as stipulated by the directly effective EU Regulation, (EC) No 261/2004. BA demurred by relying on the provisions of Article 5(3) within that Regulation, which relieved the airline of its obligation to pay where it (that is the airline) could show that

“cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”.

Their argument was that unforeseen short notice illness was an extraordinary circumstance unless it could be shown by the passenger (thus reversing the burden applicable under the Regulation) that the crew illness had arisen from a cause for which the airline itself was responsible. An example would be where it had supplied contaminated food in its own canteen etc.

3. Their argument succeeded before the DDJ and before HHJ Iain Hughes KC. It failed before the Court of Appeal who held that there was little conceptual difference between sudden and unforeseen mechanical disrepair in an aircraft (which both the Court of Justice of the European Union (“CJEU”) and UK domestic courts had long held could not amount to extraordinary circumstances) and the sudden indisposition of pilots and aircrew. BA quickly appealed to the SC and anecdotally they, and other airlines, have avoided providing compensation thereafter to passengers who find their journeys interrupted by significant delay/cancellation owing to flight illness.

4. However, this was not the only, and indeed on one view, not even the major significance of this case. This other significance arose because of the timings:

4.1.   Both at the time of the delay and when the matter had come before the DDJ and HHJ Iain Hughes KC, the United Kingdom was a member state of the EU or was undergoing the (then) uncompleted process of withdrawal during which EU derived law was deemed to remain in force as if we were not seeking to withdraw.

4.2.  The claim, being brought pursuant to Regulation EU 261/2004, was one to which s2(1) European Communities Act 1972 applied. In order to grasp the absolutely fundamental nature of the debate before the SC, it is necessary for a moment to consider that Section. For my purpose which is simply to summarise parts of the SC’s Judgment, it is enough to recite the following parts of s2(1):“2(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the [Accession] Treaties…are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly…”

Thus up to and including the hearing before HHJ Iain Hughes KC, the position was straightforward: the Liptons sued relying upon directly effective EU legislation, the meaning and extent of which was determined solely by the Court of Justice of the European Union (“CJEU”) in the light of the TFEU[1], because s2(1) of the 1972 Act permitted them to do so in UK law (albeit the precise effect of s2(1) itself became a live issue in the appeal – see below).

4.3. However, by the time the matter came before the Court of Appeal, the UK had just reached and gone past 31.12.20 ie the date when the Brexit Implementation Period was completed (“IP completion day”) for the purpose of Brexit. This was the first appeal on any topic therefore in which directly effective European Legislation had come to be considered after IP completion day.

4.4. The question therefore became: what happened to the root of their cause of action, namely the fixed level of compensation arising from the alleged breach of the directly effective Regulation once we were no longer Member States of the EU and had passed out of the transitional phases of the implementation of Brexit, or as Lady Rose was to pithily state the issue [50] of the SC Judgment

“50. It is common ground, and rightly so, that the delay caused by the matter [ie the Lipton’s claim] becoming contentious and needing to be resolved through litigation cannot deprive the Liptons of whatever cause of action they had at the time of the relevant events which gave rise to it. The question is: what is it that prevented their pre-Brexit accrued cause of action being extinguished by the UK’s exit from the EU and the repeal of section 2(1) of the ECA 1972?”

4.5. The parties had been alive to this issue before the hearing of the Court of Appeal and first at our instigation and latterly at the direct invitation of the Court of Appeal itself, the parties set out their interpretation. Broadly it was to this effect (as set out in [40] of the SC judgment:

(a) EU Regulation 261 had, as a result of the UK domestic Brexit legislation, become incorporated into UK domestic law by virtue of the EU (Withdrawal) Act 2018 (EU(W)A) as amended by the Withdrawal Agreement Act 2020.

(b) The meaning and effect of Regulation 261 should be determined by reference to CJEU case law made prior to 31 December 2020.

(c) General principles of EU Law as derived from the Charter of Fundamental Rights and the Treaty on the Functioning of the EU (“TFEU”) are relevant to the interpretation of Regulation 261, but in any event the only principle engaged in this appeal, namely the need to provide protection to consumers, is expressed within Regulation 261 itself.

(d) The Court of Appeal was not bound by any retained CJEU case law or any retained general principles, but could depart from them if it considered it right to do so.

(e) Neither party contended that the court should exercise that right as they confined their dispute to the interpretation of Regulation 261 and the European jurisprudence.

(f) Neither party believed that the Trade and Cooperation Agreement (ie the treaty entered into between the UK and the EU as part of Brexit) “TCA” affected the appeal.

4.6. Green LJ in his Judgment approached matters differently and made the following findings:

(a) He found that the precise version of the EU Regulations which applied was not the one in force at the time of the delay but the subsequently amended UK version; (This is not central to the story but set out for completeness);

(b) He went on to find that the TCA did in fact effect the position of the UK post Brexit. He found that, when read in conjunction with s29 of the Future Relationship Act 2020 which, he held, incorporated the TCA into UK law, any piece of subsisting UK domestic legislation had to be read in such a way that that such legislation should be held subordinate to the terms of the TCA where it was at variance with the TCA. It will be recalled that the TCA was a bitterly fought over negotiation at a point where it was generally thought that the UK was the weaker negotiating partner. In particular, on his reading, the following provisions of the TCA would trump UK domestic legislation

“AIRTRN 22. [The UK  and EU “share the objective of achieving a high level of consumer protection and shall co-operate to that effect” [ensuring that] “effective and non-discriminatory measures” [were taken to protect the interests of consumers]”

4.7. To continue the picture of the state of the argument before and during the hearing before the SC, it is necessary to turn to the arguments raised.

(a) BA had obtained permission to appeal to the SC having argued in writing that whilst the EU(W)A 2018 was the instrument by which EU law (Regulations/Directives/CJEU principles/treaty obligations etc) were translated into UK law, the causes of action arising out of them were not so translated because the 2018 Act did not expressly refer to them.

(b) How then did they, that is BA, consider that the Liptons could still maintain their action after Brexit (the fact that they could so continue with the claim was not something which anyone doubted)? They did so by an ingenious method. They further argued:

(i) The effect of the Brexit legislation was to repeal the effect of section 2 ECA 72;
(ii) UK domestic legislation already made provision for what happened as a result of the repeal of legislation – it was contained within section 16 Interpretation Act 1978 which stated:

“16(1)….where an Act repeals an enactment, the repeal does not, unless the contrary intention appears….(c) affect any right, privilege…acquired under that enactment…(e) affect any legal proceeding or remedy in respect of any such right, privilege….and any such ….legal proceeding or remedy may be …continued…as if the repealing Act had not been passed”

(iii) Thus BA stated the state of affairs was this

  • As at the moment of IP completion day the Liptons had in their possession something which BA described as an ‘accrued EU law right’;
  • That right consisted of the ability to bring proceedings based on a breach of the directly effective Regulation 261/2004 (ie the right to compensation for delayed or cancelled flights);
  • The UK basis for that right was s2 ECA 72;
  • The Brexit legislation repealed s2 ECA 72;
  • But the prior ‘accrued EU law right’ possessed by the Liptons was maintained by operation of s16 of the Interpretation Act 1978

This approach was styled by the majority in the SC as the ‘Interpretation Act’ analysis.

(c) On behalf of the Liptons we respectfully demurred from this analysis by arguing the following:

(i) The intention of Parliament, clearly expressed via Acts such as the EU(W)A 2018, was to create a complete code whereby arrangements were made for the translation of then existing EU law rights into UK domestic law so as to ensure a continuity necessary for the smooth continuing operation of UK legal life and individual’s continuing rights;
(ii) That this code was embodied in ss2-6 of the 2018 Act;
(iii) That whilst it is true there was no express reference made to causes of action as a result of EU Regulations Parliament:

    • Clearly intended that reference to ‘Regulations’ expressly contained in s3 of the 2018 Act also incorporated reference to causes of action arising thereunder and/or;
    • Causes of action so arising were caught up in the ‘miscellaneous’ provisions of s4 of the 2018 Act

But that either way the intention of the legislation was that those rights would be translated into UK law, to be subject to sovereign control by Parliament, and implemented and continue to have effect in that manner.

(iv) In short, there was no such thing as BA’s alleged ‘accrued EU law right’ standing outside the framework of the 2018 Act; the width and effects of which were necessarily wholly undefined and, by Parliament itself, wholly unrecognised.

(v) That were it otherwise there would arise a number of odd results as set out below.

(vi) First, it would require a conclusion that in deciding who and which EU rights were to be translated into domestic UK law, Parliament had wholly overlooked the single most important aspect to the citizen, namely how such rights were exercised as a matter of practicality (ie the causes of action arising from such rights);

(vii) Second, if BA were right, it would mean that there was an amorphous body of rights which were awaiting identification and discovery presumably via elucidation in the common law;

(viii) Third, since the 2018 was completely silent on the existence of these supposed ‘Accrued EU law rights’ it followed that such rights stood wholly outside all parts of the Act. Included within the Act were the provisions which Parliament had passed removing the binding effect of the CJEU on UK law. We argued that unless the Act did apply to the supposed ‘accrued EU law rights’ then such rights fell outwith the scheme whereby the binding effect of the CJEU was removed from them ie the CJEU would still bind the UK Courts so far as the causes of action arising out of them were concerned. In turn, since the existence of the cause of action depended on the width and meaning of the right itself, this would give the CJEU a continuing control over the rights of UK citizens for some period to come. Yet further, given the declaratory nature of CJEU rulings (like those of the common law, the law as stated on day X is deemed to be the law as it has always been) the UK would remain controlled by CJEU law not just as it happened to stand as at IP completion day but as it subsequently developed.

(ix) Whatever one thought of the political merits of Brexit, this clearly was not the intention of the Parliament which passed the 2018 and subsequent legislation;

(x) Separately we argued that BA’s approach required section 2 ECA 72 to have been repealed. We argued that the 2018 Act’s approach to s2 did not amount to a repeal as envisaged by s16 Interpretation Act 1978. A repeal, we argued, occurred when a substantive right created in legislation was removed by subsequent instrument. Section 2 did not create a right, it merely created the architecture by which the source of law emanating from the unicameral EU processes entered into the UK’s bicameral system. It was no more than a conduit pipe and to say that section 2 had been repealed in the sense needed by BA for its argument to work, was to confuse the stoppering up of the conduit pipe with the reversal of the flow of the pipe’s contents.

Our approach was referred to by the majority in the Supreme Court as ‘the complete code’ analysis.

4.8. To complete the picture:

(a) It should be borne in mind that given the UK equivalent of EU 261/2004 was broadly identical, BA were never able – despite our requests that they should do so – to identify what practical difference any of this made to the Lipton’s claim should BA’s defence on ‘extraordinary circumstances’ fail. But in fairness to them, it was also acknowledged by us all, and the Court, that there might well be situations in the future where differences between the original EU and amended UK texts which rendered the analysis crucial.

(b) Whilst BA positively attacked Lord Green’s reliance on the TCA we remained neutral on it;

(c) We also remained neutral as to which version of the Regulation should be used ie as between the EU version in place at the time of the incident or the subsequent version as passed by the UK Parliament as part of its Brexit process

(d) In short, with respect to the second aspect of this appeal, the two sources of asserted control on the UK’s power to control its own legislation raised in this appeal were:

(i) Lord Green’s reading of the TCA into s29 of the Future Relationship Act 2020; and
(ii) What we identified as the ramifications of BA’s case should it be accepted, namely that in respect of causes of action, the CJEU would still bind UK courts in their interpretation of the same on an ongoing basis (ie including any post Brexit developments.

5. The SC’s Judgment

This is a long and complex Judgment and what follows is not intended as anything other than a general guide to the Judgments of the majority given constraints of space.

5.1. They determined that the ratio extended to the narrower point alone: did delays/cancellations amount to ‘extraordinary circumstances’ where they arose from short-notice ill health by aircrew/staff thus relieving the airline the duty provide compensation? This the Court answered unanimously in the Lipton’s favour. They did so for the reasons expressed in the Judgment of Coulson LJ below and, in doing so, drew support from the subsequent judgment of the CJEU in TAP Portugal C-156/22, as a worked example. Thus compensation is equivocally now available where qualifying periods of delay have been experienced from this cause.

5.2. In respect of the wider, constitutional point, the Court split 4-1 in favour of the Liptons’ arguments (Lord Lloyd-Jones dissenting). The main Judgment was provided by Lady Rose and Lord Sales (with whom Lady Simler agreed) with Lord Burrows providing his own judgment on this point which concurred with the main Judgment. All of this was obiter but clearly of the highest persuasive weight since, in deciding as they did, the Court was self-consciously providing guidance to Courts below faced with the following questions, namely:

“60….(a) What is the version of the relevant EU instrument that applies to the determination of their claim (b) In considering their claim, is the court bound to apply rulings of the CJEU which are handed down post-Brexit or may the Court have regard to such rulings, being free to decide not to follow them? (c) If the claim makes its way to the Court of Appeal or to this Court …..could this Court or the other relevant court decide to depart from a pre-Brexit ruling of the CJEU if the test specified in the statute is satisfied?”

5.3. The majority of the Court adopted the ‘Complete Code’ analysis put forward by the Liptons and in doing so adopted the reasoning underpinning the analysis (see for example [83]; [90-127]). However it also emphasised in both making those findings and applying inferential reasoning the fact that construed intention of Parliament was to sever ties with the EU as a source of law and to provide a comprehensive code for incorporating into UK domestic law the fruits of that prior source. In particular it rejected Green LJ’s analysis regarding the TCA (see [79-80]).

5.4. The majority answered their own questions in the following way [132]:

(a) The appropriate Regulation text to consider is the EU one in force at the time of Implementation Day and not any subsequent UK version;
(b) That Regulation is deemed to have been incorporated into UK law (so as to have become retained UK law[2]) by s3 of the 2018 Act;
(c) Therefore s6 of the 2018 Act (which deals with the relationship between UK Courts and the CJEU applies

(i) The Court is not bound by any post Brexit CJEU case law in determining their claim but may have regard to it (s6(1) and (2) of the 2018 Act;
(ii) The SC, CA and a number of other prescribed Courts, if the statutory test is met, are entitled to depart from any CJEU judgment (even those prior to the completion of IP).

6. Where does this take us? The SC have identified the construed intention of Parliament and have left no real scope for arguing that via any intended or unintended consequence of the Brexit legislation of the last government, any wider ties of binding precedent or control, other than those which we already understood to exist, remain between the UK and the EU. This identified Parliamentary intention was only enhanced by the effects of the even-more Brexit oriented and subsequent Retained EU Law Act 2023. Thus any future political moves to create such closer or additional ties of law between the UK and the EU will need to proceed on the basis that any desired change to the present status quo will require fresh primary legislation.








[1] Charter of Fundamental Rights and the Treaty on the Functioning of the EU

[2] The further effect of ‘assimilation’ created by the REUL Act 2023 was not considered by the Court since on any view it did not affect this appeal.