I INTRODUCTION

The United Kingdom has three constituent legal jurisdictions: England and Wales, Scotland and Northern Ireland. However, civil aviation is regulated at national level. The UK government department responsible for civil aviation is the Department for Transport (DfT).2 The Secretary of State for Transport (SST), who heads that department, is charged by statute with the general duty of organising, carrying out and encouraging measures for the development of civil aviation; designing, developing and producing civil aircraft; promoting safety and efficiency in the use thereof; researching questions relating to air navigation; and organising, carrying out and encouraging measures for safeguarding the health of persons on board aircraft.3 The SST is also charged with carrying out specific duties in furtherance of the interests of air transport users regarding airport operation services.4 The SST is given a wide range of statutory powers in relation to the discharge of these duties.5

The DfT currently states its aviation policy to be:

Our airports and airlines support the UK economy. We're making sure they provide the domestic and international connections the UK needs to grow and prosper. We're looking at the impact of air travel on climate change and also on noise levels for people living near airports. We're continuing to make sure that air travel is safe and secure.6

The principal regulator of civil aviation in the UK is the Civil Aviation Authority (CAA).7 It is a statutory body, with its constitution, functions and duties set by the Civil Aviation Acts of 1982 and 2012 as amended (CA Act 1982 and CA Act 2012 respectively).

The CAA has a wide remit. Its functions and duties embrace the licensing of air transport and the provision of accommodation in aircraft; the provision of air navigation services; the licensing and economic regulation of aerodromes; the registration of aircraft; the safety of air navigation and aircraft; the health of persons on board aircraft; the control of air traffic; the certification of aircraft operators; the licensing of air crew; and certain responsibilities concerning national security.8 The CAA is also designated as the UK body responsible for exercising a number of powers under EU regulations concerning civil aviation in areas falling within its responsibility. It is given a wide range of statutory powers in relation to the discharge of its duties.9

The CAA has the general objective that it must perform its functions in the manner that it considers best calculated to ensure that British airlines10 provide air transport services that satisfy all substantial categories of public demand11 at the lowest charges consistent with a high standard of safety in operating the services, an economic return to efficient operators on the sums invested in providing the services and securing the sound development of the UK's civil air transport industry. In addition, it aims to further the reasonable interests of users of air transport services.12

As a matter of UK law, an international treaty or convention does not have direct domestic effect. Accordingly, even when signed and ratified by the UK, an international treaty or convention will only have domestic legal effect when incorporated into UK law by statute, whether directly or indirectly.

The UK is currently a Member State of the European Union, and for as long as this remains the case13 it is thereby subject to EU law. In particular, EU regulations have direct application in the UK.

The law related to aviation in force in the UK is therefore currently to be found in UK statute, secondary legislation made pursuant to such statute (by way of statutory instrument or Order in Council), EU regulations and related jurisprudence of the Court of Justice of the European Union, as well as the common (i.e., judge-made) law.

The UK is party to the Chicago Convention on International Civil Aviation 1944.14 It is also party to the ‘Two Freedoms' agreement of the same date.

As an EU Member State, the UK is part of the ‘single aviation market' for Community air carriers within the EU, as provided for by Regulation (EC) No.1008/2008. Outside of this area, route access to and from the UK is via either a horizontal agreement made between the EU and the non-Member State or a bilateral air services agreement made between the UK and the state concerned.15 The CAA has the task of determining the allocation of scarce capacity on any route that is the subject of any such air services agreement.16

The UK is also currently subject to EU law on such matters as state aid and slots. As to competition law, see Section VI, infra.

The Cape Town Convention 2001 and associated Aircraft Protocol have force of law in the UK in the form of and as provided by the International Interests in Aircraft Equipment (Cape Town Convention) Regulations 2015.

II LEGAL FRAMEWORK FOR LIABILITY

i International carriage

The UK is party to the Warsaw Convention 1929, Hague Protocol 1955, Montreal Additional Protocols (MAP) Nos. 1 to 4 of 1975, the Guadalajara Convention 1961 and the Montreal Convention 1999.

The Montreal Convention 1999 has force of law in the UK in respect of the liability of a ‘Community air carrier'17 concerning passengers and their baggage by reason of Regulation (EC) No. 2027/97 (as amended),18 and in respect of any other carriage to which it applies by reason of Section 1 of the Carriage by Air Act 1961 as amended (1961 Act) and as Schedule 1B to that Act. The revised liability limits of the Montreal Convention set by ICAO, with effect from 30 December 2009, have been implemented in the UK.19

Subject to specified defences, it is a criminal offence for a Community air carrier to fail to comply with the tariff requirement contained in Article 3a of Regulation (EC) No. 2027/97 or the notification provisions contained in its Article 6.20

It is a general rule of UK law that authorities on the Warsaw Convention 1929 are equally referable to the Montreal Convention 1999.21 Further, it is established that where either convention applies, it provides the exclusive causes of action and remedy.22

The Warsaw Convention 1929 as amended at The Hague 1955 (Warsaw-Hague) has force of law in the UK as set out in Schedule 1 to the 1961 Act, while the Warsaw-Hague Convention as further amended by MAP No. 4 has force of law as set out in Schedule 1A to the same Act. The Guadalajara Convention also continues to have force of law in relation to carriage governed by the latter two conventions.23

The 1961 Act provides that if more than one of the aforesaid conventions applies to a carriage by air then the most recent one has force of law.24

In relation to international carriage to which none of the aforesaid conventions apply, the Warsaw Convention 1929 as amended by MAP No. 1 and the Guadalajara Convention 1961 continue to have force of law as set out in Schedule 3 to the Carriage by Air (Applications of Provisions) Order 2004 (2004 Order), while the Warsaw and Guadalajara Conventions continue to have force of law as set out in Schedule 2 to that Order in relation to carriage, to which Schedule 3 does not apply.

The UK is not a party to the Rome Conventions of 1933 or 1952 on surface damage, nor to the Montreal Protocol of 1978 on that topic. Further, it has yet to even sign the Unlawful Interference Compensation Convention 2009 or the General Risk Convention 2009.

Liability for surface damage is, however, provided for in relation to all carriage (irrespective of whether it is international) by Section 76(2) of the CA Act 1982. It permits damages to be recovered on a strict liability basis for material loss or damage caused to any person or property on land or water by, or by a person in, or an article, animal or person falling from, an aircraft while in flight, take-off or landing (unless the loss or damage was caused, or was contributed to, by the negligence of the person by whom it was suffered); with that liability being upon the owner of an aircraft unless it has been bona fide demised, let or hired out for any period exceeding 14 days to any other person by its owner, and no pilot, commander, navigator or operative member of its crew is in the employment of the owner, in which event the liability is upon the person to whom the aircraft has been so demised, let or hired out.

ii Internal and other non-convention carriage

By reason of Regulation (EC) No. 2027/97, the liability of a Community air carrier in respect of all passengers and their baggage is governed by the Montreal Convention 1999 for the purposes of English law, regardless of whether the carriage is international or domestic (see Section II.i, supra).

Any other UK domestic carriage of persons, baggage or cargo performed by an aircraft for reward, or gratuitously by an air transport undertaking, is governed by Schedule 1 to the 2004 Order. This applies a slightly modified version of the Montreal Convention to such carriage. It has been held in relation to its predecessor (which made the same provision in relation to the Warsaw-Hague-MAP No. 4 Convention)25 that it applies when the place of departure, place of destination or an agreed stopping place is within the UK or other British territory.26

Where carriage by air falls outside the above provisions (such as gratuitous carriage by a private person) any liability of the carrier in respect of passengers, baggage or cargo will fall to be determined according to the common law - predominantly via the tort of negligence, or an express or implied contractual duty of reasonable skill and care. With regard to tortious liability there is persuasive authority that the maxim res ipsa loquitur applies in respect of an air crash against the owner or operator of the aircraft concerned, so as to impose a rebuttable presumption of liability in negligence.27

As to surface damage, see Section II.i, supra.

iii General aviation regulation

The convention-based schemes (outlined in subsections i and ii, supra) of liability in relation to ‘aircraft' have been held to apply to helicopters28 and hot-air balloons,29 but not to a tandem heavier than air non-powered paraglider.30 Liability in respect of any means of carriage not by an ‘aircraft' will fall to be determined according to the common law (i.e., the law of contract and/or tort, in particular, negligence).

As to surface damage, see Section II.i, supra.

iv Passenger rights

Regulation (EC) No. 261/2004 (on denied boarding, cancellation or long delay) currently has direct effect in the UK (see the ‘European Union' chapter of this publication). Non-compliance with certain provisions of this regulation is a criminal offence.31 However, to date, no successful prosecutions have been recorded, although the CAA, which is the UK's national enforcement body for this regulation, has undertaken numerous compliance investigations and initiated enforcement proceedings against several air carriers at various times.

Regulation (EC) No. 1107/2006 (on rights of disabled persons and persons with reduced mobility when travelling by air) also currently has direct effect in the UK and is addressed in the ‘European Union' chapter of this publication. Contravention of various articles of this regulation is a criminal offence.32 Although a claim by a qualifying person may be made for any infringement of this EU Regulation, including for compensation for injury to feelings,33 no such damages are recoverable where the complaint falls within the scope of the Montreal Convention.34

Directive 90/314/EEC has been given effect in the UK in the form of the Package Travel, Package Holidays and Package Tours Regulations 1992. These give various rights to a consumer in respect of any contract for carriage by air sold or offered for sale as part of a ‘package' with other transport, accommodation or ancillary tourist services. They include information requirements, transfer of bookings, price revision, alterations to essential terms, the making of alternative arrangements and liability for proper performance.

The UK does not have any other domestic provisions dealing specifically with the rights of air passengers. The general UK statutory consumer protection law is, however, applicable, except where its application to contracts of carriage by air is expressly excluded.

v Other legislation

The general provisions of UK law may also give rise to liability. However, no action lies in respect of trespass or nuisance by reason only of the flight of an aircraft over any property at a height above the ground, which, having regard to wind, weather and all the circumstances of the case, is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order and any orders under Section 62 of the CA Act 1982 have been duly complied with.35 For these purposes, ‘flight' is not restricted to lateral travel from one fixed point to another, but rather embraces all movement that takes place between the take-off and landing of an aircraft.36

It is to be noted that the UK has stringent anti-bribery rules, as contained in the Bribery Act 2010. As to competition law, see Section VI, infra. As to product liability law, see Section VIII.iii, infra.

III LICENSING OF OPERATIONS

i Licensed activities

A person must not operate an aeroplane registered in the UK on a commercial air transport operation other than under and in accordance with the terms of an EU air operator certificate (AOC)37 granted to that person by the CAA.38

In order to be able to carry passengers, mail or cargo for remuneration or hire, that person will also need a valid operating licence granted by the CAA pursuant to Chapter II of Regulation (EC) No. 1008/2008.39 This requires, among other things, that its principal place of business is located in the UK (see further Section III.ii, infra). It is dealt with substantively in the ‘European Union' chapter of this publication.

Although such a (UK) Community air carrier40 is entitled to operate intra-Community air services as of right as part of the single EU aviation market,41 it can only operate services to or from elsewhere if it holds a route licence granted by the CAA that authorises it to operate those flights42 (and subject to the availability of traffic rights under any relevant air services agreement with the destination state (see Section I, supra). In practice, such a licence will allow any operations within the area permitted by the holder's AOC, although it may be subject to restrictions in specific circumstances.

A person without an applicable EU AOC must not operate a UK-registered aircraft for the purposes of any other public transport43 flight other than under and in accordance with a national AOC granted to that person by the CAA.44 Further, any such other carriage for reward of passengers or cargo can only be performed if the operator holds and complies with the terms of an air transport licence granted by the CAA.45

ii Ownership rules

It is a requirement of an EU operating licence (see Section III.i, supra) that Member States or nationals of Member States own more than 50 per cent of the undertaking to which it is granted and effectively control it, whether directly or indirectly through one or more intermediate undertakings (except as provided for in an agreement with a third country to which the EU is a party).46 This and other requirements of Regulation (EC) No. 1008/2008 for the licence holder are dealt with in the ‘European Union' chapter.

As mentioned in Section III.i, supra, it is also a requirement of an EU operating licence that the applicant's principal place of business is in the issuing Member State (i.e., in the current context, the UK).

A UK national AOC is not subject to any express statutory ownership rules. However, unless the SST otherwise consents, an air transport licence can only be granted to a UK national or a body that is incorporated under the law of a part of the UK or a relevant overseas territory, and is controlled by UK nationals.47

iii Foreign carriers

An aircraft registered elsewhere than in the UK must not take on board or discharge any passengers or cargo in the UK where valuable consideration is given or promised for their carriage, unless the operator or charterer of the aircraft, or the government of the country in which the aircraft is registered, has been granted permission to take on board or discharge any passengers or cargo for such purpose by the SST or the CAA, and any conditions to which such permission may be subject are satisfied; or the aircraft is flying pursuant to traffic rights conferred upon a Community air carrier as part of the single EU aviation market; or an AOC has been issued to the operator of the aircraft pursuant to the Air Navigation (Overseas Territories) Order 2013.48

The decision to grant such permission is normally made by the CAA, but it must take into account any advice given to it by the SST (including as to circumstances in which the SST expects to determine an application for permission).49,50

IV SAFETY

Regulation (EC) No. 216/2008 on common rules in the field of civil aviation (the Basic EASA Regulation) and its implementing regulations51 currently have direct effect in the UK, with their application being acknowledged and enforced by the ANO. Together these regulate safety in relation to, among other things, airworthiness, flight crew licensing and training, and aircraft operation with regard to EASA aircraft.52 They are dealt with in the ‘European Union' chapter of this publication. The corresponding national regulation in relation to non-EASA aircraft is provided for separately in the ANO. The CAA is the relevant UK regulator in both instances.

The ICAO Annex 13 civil aviation safety investigation authority for the UK is the Air Accidents Investigation Branch of the DfT (AAIB).53 Its functions, duties and powers are set by a combination of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 (1996 Regulations) and Regulation (EU) No. 996/2010. All air accidents and serious incidents occurring in or over the UK must be reported to it, pursuant to these regulations.

A report of the AAIB is admissible in civil proceedings in England and Wales as evidence of the facts that it states and as expert evidence in relation to the opinion it gives where that is the product of a special expertise that its authors can be taken to or do have, but is not admissible for the opinion it expresses on facts that require no such expertise to evaluate.54 In contrast, relevant records55 obtained by the AAIB in the course of its investigations cannot be disclosed by it to any other person for purposes other than accident or incident investigation, unless the court56 orders it to do so upon satisfaction that the interests of justice in the judicial proceedings or circumstances in question outweigh any adverse domestic and international impact that disclosure may have on the investigation into the accident or incident to which the record relates or any future accident or incident investigation undertaken in the UK.57 Although a voice or flight data recorder may be ordered to be disclosed on this basis,58 it is almost inconceivable that an order would be made for the disclosure of a statement made to the AAIB in the course of its investigations.59

Regulation (EU) No. 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation has direct effect in the UK. The CAA is the competent UK authority for such mandatory occurrence reporting.

V INSURANCE

Regulation (EC) No.785/2004 (as amended) has direct effect in the UK. It specifies minimum insurance requirements for all aircraft operators and air carriers flying within, into, out of or over the territory of an EU Member State in respect of liability for passengers, baggage and cargo, and third parties. The CAA is the designated UK authority for monitoring compliance with this regulation.

The Civil Aviation (Insurance) Regulations 2005 create sanctions for non-compliance with various provisions of Regulation (EC) No. 785/2004, including a number of criminal offences. They also specify the minimum level of passenger insurance for non-commercial operations by light aircraft.

VI COMPETITION

The aviation sector is subject to the general provisions of UK competition law, the principal components of which are: in relation to anticompetitive behaviour and abuse of dominant position, Chapters I and II of the Competition Act 1998 (as amended) respectively, which reproduce Articles 101 and 102 of the Treaty on the Functioning of the European Union; and in relation to merger control, Part 3 of the Enterprise Act 2002 (as amended) and the EU Merger Regulation No. 139/2004. The UK's national competition authority for these purposes is the Competition and Markets Authority (CMA).60 Its powers and duties are set out in the aforementioned Acts as amended. Part 6 of the Enterprise Act 2002 imposes criminal liability upon individuals in relation to the making and implementation of cartel arrangements.

The CA Act 2012 makes specific provision for the regulation of the operators of ‘dominant airports' and gives the CAA related duties and powers. These are concurrent with the CMA's duties and powers.61 The CAA also has competition powers in respect of air traffic services. The CAA has set out how it will apply its powers and duties in its Guidance on the Application of the CAA's Competition Powers.62

VII WRONGFUL DEATH

In England and Wales,63 if death is caused by any wrongful act, neglect or default, then any action for damages against another person that the deceased could have brought (had his or her death not ensued) can be brought for the benefit of his or her dependants.64 The recoverable damages are for their loss of dependency on the deceased (calculated on a multiplicand/multiplier basis), for loss of the pecuniary value (including gratuitous services) that was or would have been provided by the deceased, as well as for funeral expenses.65 Any benefits that have accrued or will or may accrue to any person from the deceased's estate or otherwise as a result of his or her death are to be disregarded.66 Damages for bereavement are also recoverable, but only for the benefit of a limited class of persons67 and in a prescribed amount - currently £12,980.68 See Section VIII.i, infra.

VIII ESTABLISHING LIABILITY AND SETTLEMENT

i Procedure

Each of the UK's three legal jurisdictions has a separate court system, each with their own rules of procedure but subject to a common apex in the UK Supreme Court. There is also some variation between the substantive law in each jurisdiction, in terms of both applicable domestic statute and common law.

In each jurisdiction, civil proceedings may be commenced in one of two levels of court depending on the value and complexity of the claim: in England, in the High Court of Justice or county court; in Scotland, in the Outer House of the Court of Session or sheriff court; and in Northern Ireland, the High Court of Justice or county court. In all of these courts the determination is, in general, by judge alone.

There is currently no compulsory alternative dispute resolution scheme in force in the UK with regards to any class of aviation dispute, including in respect of claims against carriers by consumers.

The time limit for bringing a claim in the UK depends on the nature of the cause of action relied upon. In relation to convention-based liability an action must be brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.69 In England and Wales, the general law as to time is set out in the Limitation Act 1980 (as amended). It sets primary (but in certain circumstances displaceable) requirements that an action founded on tort, contract or to obtain any sum recoverable by virtue of any enactment, shall not be brought after the expiration of six years from the date on which the cause of action accrued,70 and that an action for personal injury or death shall not be brought after three years from the later of the date of accrual of the cause of action or of knowledge.71 A claim for fixed compensation under Regulation (EC) No. 261/2004 is subject to a six-year limitation period.72

Subject to the court having jurisdiction to entertain an action made against the defendant concerned,73 there is no artificial restriction upon who may be added as a defendant to any action (whether carrier, owner, pilot, manufacturer or otherwise).

In England and Wales, where the same damage is caused to a claimant by the default of two or more persons then each wrongdoer is liable for the whole damage, regardless of whether any other person is also held liable. The allocation of liability between wrongdoers may be the subject of contractual agreement (e.g., providing for guarantee or indemnity). Any person liable in respect of any damage suffered by another may also be entitled to recover a contribution from any other person liable in respect of the same damage via the Civil Liability (Contribution) Act 1978, in such amount ‘as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question'.

ii Carriers' liability towards passengers and third parties

The nature of a carrier's liability will depend upon the cause of action concerned. It is strict in respect of convention liability,74 where the relevant conditions of liability contained in the convention are met, and for surface damage.75 Otherwise, liability will generally be fault-based. The person making a claim bears the burden of proof. The requisite standard of proof is the balance of probabilities.

Any convention liability will be subject to any applicable limit of liability contained therein.76 There is no artificial financial limit in respect of surface damage or for fault-based liability at common law.

iii Product liability

Directive 85/374/EEC (on liability for defective products) has been implemented into UK law by the Consumer Protection Act 1987 (CPA) as amended. It provides that (subject to the provisions of its Part I) the producer, any person who holds himself or herself as the producer, the importer and, if the supplier fails to state whom he or she bought the product from, the supplier, of a product is liable where any damage ‘is caused wholly or partly by a defect in [the product concerned]'.77 For these purposes, a ‘product' means ‘any goods', including aircraft, and a product that is comprised in another product;78 there is a ‘defect' if ‘the safety of the product is not such as persons generally are entitled to expect';79 and ‘damage' means ‘death or personal injury or any loss of or damage to any property (including land)'.80 However, the CPA does not apply to:

  • a property that, at the time it is lost or damaged, is not ‘of a description of property ordinarily intended for private use, occupation or consumption' and not ‘intended by the person suffering the loss or damage mainly for his own private use, occupation or consumption';
  • b loss of or any damage to the product itself; or
  • c loss of or any damage to the whole or any part of any product that has been supplied with the product in question comprised in it.81

It therefore does not provide for liability in respect of damage to business property or pure economic loss, and does not require proof of fault. It is subject to specified defences, including state of the art.82

Liability under the CPA is joint and several, and without prejudice to liability on any other basis.83 It cannot be limited or excluded by any contract term, notice or other provision.84

Aside from the CPA, there is no specific statutory scheme for product liability of relevance to the aviation sector.85 Outside the CPA's scope, product liability therefore falls to be determined according to the general common law of contract or tort (in particular, negligence).

iv Compensation

An award of damages by UK courts is determined by a judge, rather than a jury. As a general rule, an award is limited to an amount equalling the loss actually suffered, and exemplary or punitive damages are not recoverable (and in the case of Montreal Convention-based liability they are expressly prohibited).86

In the case of personal injury, in England and Wales, general damages are recoverable for pain, suffering and loss of amenity. The amount awarded is usually set by reference to the Judicial College Guidelines and past case law. General damages may also be awarded for such things as handicap on the labour market and loss of congenial employment. In addition, special damages may be awarded for the pecuniary loss suffered for such things as loss of earnings and pension, medical or other expenses, cost of care and the cost of adaptive equipment. Future loss is calculated on a multiplicand/multiplier basis, with the multiplier set by reference to actuarial tables. As to compensation in cases of wrongful death, see Section VII, supra.

The UK government provides a comprehensive system of social security benefits and a National Health Service (NHS), which is essentially free to users. There is statutory provision for the recovery from a tortfeasor of certain benefits and NHS charges by the Compensation Recovery Unit of the Department for Work and Pensions.87 Benefits paid by an agency of another EU Member State may also be recoverable.88

IX VOLUNTARY REPORTING

The UK has a Confidential Human Factors Incident Reporting Programme (CHIRP), which is run by a charitable trust.89 It provides a totally independent, confidential (but not anonymous) reporting system for all individuals employed in or associated with the aviation industry, making available a means by which they are able to raise safety-related issues of concern without being identified to their peer group, management or regulatory authorities. This allows for the collection of confidential safety data. When appropriate, CHIRP acts or advises on information gained through the confidential reports it has received.

There is also an independent UK Airprox Board (UKAB),90 to which a report can be made of a situation in which, in the opinion of a pilot or air traffic services personnel, the distance between aircraft, as well as their relative positions and speed, have been such that the safety of the aircraft involved may have been compromised (an ‘Airprox'). The UKAB provides impartial assessments on cause and risk for all Airprox reported in UK airspace. When appropriate, it makes safety recommendations aimed at reducing the likelihood of a recurrence of any given Airprox event. No names are published in UKAB's reports, in order to encourage an open and honest reporting environment.

As to mandatory reporting, see Section IV, supra.

X THE YEAR IN REVIEW

On 23 June 2016, the UK government held a referendum asking whether the UK should leave the EU. It resulted in a majority voting in favour of ‘Brexit' (51.9 per cent to 48.1 per cent). On 29 March 2017, the UK government acted upon this result by giving notice to the European Council that the UK is to leave the EU. Pursuant to the terms of Article 50 of the Treaty of Lisbon, this means that the UK will cease to be an EU Member State on 29 March 2019 unless the European Council, in agreement with the UK, unanimously decides to extend the UK's membership beyond that date. Formal negotiations between the UK government and the EU on the terms of its ‘Brexit' and the UK's future relationship with the EU, including with regards to the application of EU law in and by the UK, commenced in June 2017. As to the consequences of this, see Section XI, infra.

On 1 July 2015, the Airport Commission (which had been set up by the UK government and charged with making recommendations with regards to the expansion of airport capacity in the UK) published its final report.91 This concluded that expanded capacity is crucial for the UK's long-term prosperity, and recommended that while each of the three schemes shortlisted were credible, the proposal for a new north-west runway at Heathrow Airport presented the strongest case and offered the greatest strategic and economic benefits. On 25 October 2016, the UK government confirmed that a new north-west runway at Heathrow was its preferred scheme and stated that it would be subject to consultation through a draft National Policy Statement. The consultation itself was then published on 2 February 201792 and closed on 25 May 2017. A final Airports National Policy Statement and Appraisal of Sustainability will be laid before Parliament once views from this consultation have been considered. Any further progress towards the building of a new runway is subject to and must await this process.

On 2 February 2017, the UK government also published a consultation on UK airspace policy. It considers a number of important changes that are linked to, but not dependent on, a new north-west runway at Heathrow Airport.93

XI OUTLOOK

As can be seen in this chapter, EU law currently plays a very significant role in the law applicable to aviation in the UK. It also provides the basis upon which UK air carriers have access to the single EU aviation market and, similarly, the air carriers from other EU states have access to the UK. As matters presently stand, it is far from clear whether this will continue to be the case upon ‘Brexit' (i.e., as from 29 March 2019, unless a later date is agreed). The UK aviation market and aviation law are therefore likely to endure a considerable period of uncertainty over the next few years. It is reasonable to expect that this will cause at least some restructuring within the industry as participants seek to protect themselves against what might otherwise be the result of the UK's divorce from the EU and its laws. Indeed, the Irish carrier Ryanair has already announced that it has pivoted growth away from the UK to other EU airports, will be basing no additional aircraft at its UK airports in 2017 and is cutting its growth rate from 15 per cent to 6 per cent for 2017,94 while the UK carrier easyJet has indicated an intention to apply for an AOC from one of the remaining EU Member States.95 Undoubtedly, these will be exciting times for anyone interested in the evolution of UK aviation law.

1 Robert Lawson QC is a barrister and partner in the aviation group of Clyde & Co LLP.

2 In relation to the DfT generally, see www.gov.uk/government/organisations/department-for-transport.

3 Civil Aviation Act 1982 (as amended), Section 1.

4 Civil Aviation Act 2012, Section 2.

5 As set out in the Civil Aviation Acts 1982 and 2012.

6 See www.gov.uk/government/policies/aviation-and-airports.

7 In relation to the CAA generally, see www.caa.co.uk/home.

8 See, in particular, CA Act 1982, Section 3.

9 Principally, as set out in and under the CA Acts 1982 and 2012.

10 I.e., those having power to provide air transport services and appearing to the CAA to have their principal place of business in the UK, the Channel Islands and the Isle of Man, and to be controlled by persons who are UK nationals or from the time being approved by the SST for this purpose: CA Act 1982, Section 4(2).

11 So far as British airlines may reasonably be expected to provide such services.

12 CA Act 1982, Section 4 and CA Act 2012, Section 1.

13 As to which, see Sections X and XI, infra.

14 The Chicago Convention is given domestic effect in the UK largely by and under the CA Act 1982.

15 Article 6 of Chicago Convention maintains such a requirement for schedule services (in respect of contracting states), c.f. the general waiver for non-scheduled services in its Article 5.

16 As to which, see the Civil Aviation (Allocation of Scarce Capacity) Regulations 2007.

17 Namely, a carrier within the meaning of that phrase in Regulation (EC) No.2027/97: 1961 Act, Section 14. Its Article 2 defines this as a carrier with a valid operating licence granted by a Member State in accordance with Regulation (EEC) No. 2407/92. That regulation has since been repealed and replaced by Regulation (EC) No. 1008/2008, as to which, see Section III.i, infra.

18 Namely, by Regulation (EC) No. 889/2002.

19 By the Carriage by Air (Revision of Limits of Liability under the Montreal Convention) Order 2009.

20 Air Carrier Liability Regulations 2004 (as amended).

21 See, for example, Barclay v. British Airways Plc [2010] QB 187 at [6].

22 Sidhu v. British Airways Plc [1997] AC 430; Stott v. Thomas Cook Tour Operators Ltd [2014] AC 1347. But see Dawson v. Thomson Airways Ltd [2015] 1 WLR 883.

23 As set out in the Carriage by Air (Supplementary Provisions) Act 1962.

24 Section 1(4).

25 The Carriage by Air Acts (Application of Provision) Order 1967.

26 Holmes v. Bangladesh Biman Corpn [1989] AC 1112.

27 George v. Eagle Air Services Ltd [2009] 1 WLR 2133 at [12]-[13].

28 See, for example, Fellowes (or Herd) v. Clyde Helicopters Ltd [1997] AC 534.

29 Laroche v. Spirit of Adventure (UK) Ltd [2009] QB 778.

30 Disley v. Levine [2002] 1 WLR 785.

31 The Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005.

32 The Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007.

33 2007 Regulations, Regulation 9.

34 Stott v. Thomas Cook Tour Operators Ltd [2014] AC 1347.

35 CA Act 1982, Section 76(1).

36 Peires v. Bickerton's Aerodromes Limited [2017] EWCA Civ 273.

37 Namely, whichever of an EU-OPS AOC or a Part-CAT AOC is applicable to the operation in question. An EU-OPS AOC is one granted pursuant to Annex III of Regulation (EEC) No. 3922/91 as amended: Air Navigation Order 2016 (ANO), Article 2 and Schedule 1. It is required for A to A commercial transport aeroplane operation, i.e., an operation performed by an aeroplane powered by a propeller engine with a maximum operational passenger seating configuration of nine or fewer seats and a maximum take-off mass of 5,750 kg or less; for the purpose of transporting passengers, cargo or mail for remuneration or other valuable consideration; starting and ending at the same place: see ANO, Articles 102 and 2, and Schedule 1. A Part-CAT AOC is one granted under Annex II to Regulation (EU) No. 965/2012 (EASA Air Operations Regulation) authorising the holder to operate commercial transport operations: ANO, Article 2 and Schedule 1. It is required for the purposes of transporting passengers, cargo or mail for remuneration or other valuable consideration that is carried out in accordance with Annex III and IV of the EASA Air Operations Regulation, but that is not an A to A commercial operation: see ANO, Articles 103 and 2, and Schedule 1.

38 ANO, Articles 102 and 103.

39 Certain related provisions are contained in the Operation of Air Services in the Community Regulations 2009.

40 That is, an air carrier with a valid operating licence granted by a competent licensing authority in accordance with Chapter II of Regulation (EC) No. 1008/2008, in this instance by the CAA.

41 See Regulation (EC) No.1008/2008, Chapter III.

42 As to which, see CA Act 1982, Section 69A, and Civil Aviation Regulations 1991, Part III.

43 The meaning of ‘public transport' for these purposes is rather convoluted and is qualified by various special rules and exceptions, as to which, see ANO, Articles 6 to 16. However, at its core, it embraces any flight that is not for the purposes of commercial air transport but for which valuable consideration is given or promised for the carriage of passengers or cargo.

44 ANO, Article 101(1). The CAA must grant such a certificate if it is satisfied that the applicant is competent to secure the safe operation of aircraft of the type specified in the certificate on flights of the description and for the purpose specified, having regard in particular to the applicant's previous conduct and experience, equipment, organisation, staffing, maintenance and other arrangements: Article 101(2).

45 CA Act 1982, Section 64. As to the grant of such a licence see Section 65 and the Civil Aviation Regulations 1991, Part III.

46 Regulation (EC) No.1008/2008, Article 4(f).

47 CA Act 1982, Section 65(3).

48 ANO, Article 250. A breach of this article is a criminal offence: see ANO, Article 265.

49 See ANO, Article 250(3)-(7).

50 As to the application process itself, see www.caa.co.uk/Commercial-industry/Airlines/Licensing/Foreign-carrier-permits/About-foreign-carrier-permits/.

51 Including those commonly known as the EASA Aircraft Certification Regulation, the EASA Continuing Airworthiness Regulation, the EASA Air Operations Regulation, the EASA Aircrew Regulation and the EASA Aerodromes Regulation.

52 I.e., an aircraft that the Basic EASA Regulation and its implementing regulations require to hold an EASA certificate of airworthiness, an EASA restricted certificate of airworthiness or an EASA permit to fly.

53 In relation to the AAIB generally, see www.gov.uk/government/organisations/air-
accidents-investigation-branch.

54 Rogers v. Hoyle [2015] QB 265.

55 I.e., any item in the possession, custody or power of the AAIB of a kind referred to in sub-paragraphs (a) to (e) of paragraph 5.12 of ICAO Annex 13: 1996 Regulations, Regulation 18(3). This in turn means: any statements taken from persons by the investigation authorities in the course of their investigation; all communications between persons having been involved in the operation of the aircraft; medical or private information regarding persons involved in the accident or incident; cockpit voice recorders and transcripts from such recordings; recordings and transcriptions of recordings from air traffic control units; and opinions expressed in the analysis of information, including flight information recorder information.

56 I.e., in England and Wales, the High Court, in Scotland, the Court of Session, and in Northern Ireland, the High Court: 1996 Regulations, Regulation 18(3). A Coroner has no power to order such disclosure:
R (on the application of the Secretary of State) v. Her Majesty's Senior Coroner for Norfolk [2016] EWHC 2279 (Admin).

57 1996 Regulations, Regulation 18.

58 See, for example, Lord Advocate, Petitioner [2015] SLT 450.

59 Chief Constable of Sussex Police v. Secretary of State for Transport [2016] EWHC 2280 (QB).

60 In relation to the CMA generally see www.gov.uk/government/organisations/competition-
and-markets-authority.

61 As to this concurrent relationship, see: the Competition Act 1998 (Concurrency) Regulations 2014; and the Memorandum of Understanding between the Competition and Markets Authority and Civil Aviation Authority - concurrent powers (6 June 2014).

62 CAP 1235, dated 12 May 2015: http://publicapps.caa.co.uk/modalapplication.aspx?appid=11&mode=
detail&id=6485.

63 As to Scotland and Northern Ireland see Section VIII.i, infra. There are broadly similar, but in some respect distinct, rules as to damages in these two jurisdictions. However, a review of the differences is beyond the scope of this chapter.

64 Fatal Accidents Act 1976 (as amended) (FAA 1976), Section 1. Section 1(3) gives a list of who may qualify as a ‘dependant' for these purposes. Section 2 sets a general rule that the action must be brought in the name of the executor or administrator of the deceased. It also provides that only one action may be brought in respect of the death.

65 Where the death is not instantaneous, the deceased's pre-death losses are recoverable by his or her estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. This could include any pre-death pain and suffering.

66 FAA 1976, Section 4.

67 I.e., the wife or husband or civil partner of the deceased; or where the deceased was a minor who was never married or had a civil partner, his or her parents if he or she was legitimate and his or her mother if he or she was illegitimate.

68 FAA 1976, Section 1A.

69 I.e., per Article 29 of the Warsaw Convention and Article 35 of the Montreal Convention.

70 See its Sections 2, 5 and 9 respectively.

71 See its Sections 11 and 12 respectively.

72 Dawson v. Thomson Airways Ltd [2015] 1 WLR 883.

73 Including as provided for by any exclusive jurisdictional code, such as that in respect of a claim against a carrier as contained in the Warsaw & Montreal Conventions, at Articles 28 and 33 respectively; see Deaville v. Aeroflot Russian International Airlines [1997] 2 Lloyd's Rep 67.

74 See Section II.i and ii, supra.

75 As discussed in Section II.i, supra.

76 See, for example, Articles 21 and 22 of the Montreal Convention, as incorporated into English law as Schedule 1B to the 1961 Act and revised by the Carriage by Air (Revision of Limits of Liability under the Montreal Convention) Order 2009.

77 CPA, Section 2.

78 CPA, Sections 1(2) and 45(1).

79 CPA, Section 3.

80 CPA, Section 5.

81 CPA, Section 5.

82 CPA, Section 4.

83 CPA, Section 2(5) and (6).

84 CPA, Section 7.

85 Save with reference to employees, as to which see the Employer's Liability (Defective Equipment) Act 1969.

86 See its Article 29.

87 In respect of England and Wales, see the Social Security (Recovery of Benefits) Act 1997 and Part 3 of the Health and Social Care (Community Health and Standards) Act 2003 (as amended) respectively.

88 See Donkers v. Storm Aviation Ltd [2015] 1 All ER (Comm) 282.

89 See www.chirp.co.uk.

90 See www.airproxboard.org.uk/home. The UKAB is sponsored and funded by the CAA and its military equivalent, the Military Aviation Authority.

91 See www.gov.uk/government/publications/airports-commission-final-report.

92 The Consultation on Draft Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England. See www.gov.uk/government/uploads/system/uploads/attachment_data/file/589082/consultation-on-draft-airports-nps.pdf.

93 See www.gov.uk/government/uploads/system/uploads/attachment_data/file/588186/uk-airspace-policy-a-framework-for-balanced-decisions-on-the-design-and-use-of-airspace-web-version.pdf.

94 See https://otp.tools.investis.com/clients/uk/ryanair/rns/regulatory-story.aspx?cid=901&newsid=858853.

95 See http://uk.reuters.com/article/uk-britain-eu-easyjet-idUKKBN1701MU?il=0; and http://mediacentre.easyjet.com/stories/10207.