The Aviation Law Review: United Kingdom

Introduction

The United Kingdom of Great Britain and Northern Ireland (UK) has three constituent legal jurisdictions: England and Wales, Scotland and Northern Ireland.2 However, civil aviation is regulated at the national level. The UK government department responsible for civil aviation is the Department for Transport (DfT).3 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.4 The SST is also charged with carrying out specific duties in furtherance of the interests of air transport users regarding airport operation services.5 The SST is given a wide range of statutory powers in relation to the discharge of these duties.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 retained EU-derived 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; and 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 party to the Chicago Convention on International Civil Aviation 1944.13 It is also party to the 'Two Freedoms' agreement of the same date.

The UK ceased to be a Member State of the European Union on 31 January 2020 but continued to apply EU law as if it was a Member State until the end of a transitional implementation period that expired at 11pm on 31 December 2020.14 From that date, the UK has ceased to be subject to EU law.

As from the end of the transitional implementation period, the then-existing EU-derived domestic legislation, EU regulations and related jurisprudence of the Court of Justice of the EU (CJEU) became part of the UK's law by reason of the European Union (Withdrawal) Act 2018 (as amended) unless, until or to the extent that the UK legislates to the contrary (but EU law created after that date does not do so). The UK has introduced a considerable volume of statutory instruments that has amended UK legislation and amended or revoked EU regulations to determine what has been retained in UK law from the end of the implementation period, including many related to aviation.

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), retained EU-derived regulations and related (pre-Brexit) jurisprudence of the CJEU, as well as the common (i.e., judge-made) law.15

The UK is no longer part of the single aviation market for Community air carriers within the EU (as provided for by Regulation (EC) No. 1008/2008). Route access as between the UK and the EU is now governed by the Trade and Cooperation Agreement between the EU and the UK (TCA) concluded on 24 December 2020.16 Among other things, this gives UK air carriers17 and EU Community air carriers18 the right to fly across the territory of the other party without landing and to make stops for non-traffic purposes to perform point-to-point services between the territories of the two parties, and to carry passengers to two different points in the territory of the other party as part of the same service (i.e., co-terminalisation); and gives EU Member States the right to enter into bilateral arrangements with the UK in respect of all cargo services.19 All other route access to and from the UK is governed by bilateral air services agreements. 20 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.21

The UK has retained EU law on state aid and slots, in both instances with some modification.22 As to competition law, see Section VI.

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.

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, Guadalajara Convention 1961 and Montreal Convention 1999.

The Montreal Convention 1999 currently has force of law in the UK in respect of the liability of a UK air carrier concerning passengers and their baggage by reason of Regulation (EC) No. 2027/97 (as amended)23 as retained in UK law24 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 International Civil Aviation Organization (ICAO) , with effect from 30 December 2009, have been implemented in the UK.25 However, the further revisions set with effect from 28 December 201926 are yet to be implemented.

Subject to specified defences, it is a criminal offence for a UK 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 6.27

It is a general rule of UK law that authorities on the Warsaw Convention 1929 are equally referable to the Montreal Convention 1999.28 Further, it is established that where either convention applies, it provides the exclusive causes of action and remedy.29

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.30

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.31

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, or 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, taking 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 as retained in UK law, the liability of a UK 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).

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)32 that it applies when the place of departure, place of destination or an agreed stopping place is within the UK or other British territory.33

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.34

As to surface damage, see Section II.i.

iii General aviation regulation

The convention-based schemes (outlined in subsections i and ii) of liability in relation to aircraft have been held to apply to helicopters35 and hot-air balloons,36 but not to a tandem heavier than air non-powered paraglider.37 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 or tort, or both: in particular, negligence).

As to surface damage, see Section II.i.

iv Passenger rights

Regulation (EC) No. 261/2004 (on denied boarding, cancellation or long delay) has been retained in UK law with some modification.38 Non-compliance with certain provisions of this Regulation is a criminal offence.39 To date, no successful prosecutions have been recorded. However, in its capacity as the UK's national enforcement body for this Regulation, the CAA has undertaken numerous compliance investigations and initiated enforcement proceedings against several air carriers at various times pursuant to its powers under Part 8 of the Enterprise Act 2002 (as amended). These have resulted in a number of carriers giving formal corrective undertakings,40 and in one case in an enforcement order being made.41

Regulation (EC) No. 1107/2006 (on rights of disabled persons and persons with reduced mobility when travelling by air) has also been retained in UK law.42 Although a claim by a qualifying person may be made for any infringement of this Regulation, including for compensation for injury to feelings,43 no such damages are recoverable where the complaint falls within the scope of the Montreal Convention.44

Directive (EU) 2015/2302 has been retained in the UK and given effect in the form as modified by the Package Travel and Linked Travel Arrangements Regulations 2018 as amended.45 These give various rights to consumers in respect of any contract for carriage by air sold or offered for sale with other travel services so as to form a package or linked travel arrangement.46 They include information requirements, transferability of bookings, protection against price revision, alterations to essential terms and improper performance, rights of termination and to refund, and protection against insolvency. See further Section V.

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

No person may make available in the UK accommodation for the carriage of persons on flights in any part of the world unless they are the operator of the relevant aircraft, the holder of an air travel organiser's licence (ATOL) granted by the CAA, or are exempt or exempted from the need to hold an ATOL.47 Non-compliance with these restrictions is a criminal offence.48

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.49 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 takeoff and landing of an aircraft.50

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. As to product liability law, see Section VIII.iii.

Licensing of operations

i Licensed activities

A person must not operate an aircraft registered in the UK on a commercial air transport operation other than under and in accordance with the terms of a Part-CAT air operator certificate (AOC)51 granted to that person by the CAA.52

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 as retained in UK law.53 This requires, among other things, that its principal place of business is located in the UK54 (see further Section III.ii).

The operator will further require a route licence granted by the CAA that authorises it to operate aircraft on the flights in question55 (the right to do so will also be subject to the availability of traffic rights under any relevant air services agreement with the destination state (see Section I)). 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 must not operate a UK-registered aircraft for the purposes of any public transport56 flight other than under and in accordance with a Part-CAT or national AOC granted to that person by the CAA.57 Further, unless that person holds a valid operating licence granted pursuant to Chapter II of Regulation (EC) No.1008/2008 as retained in UK law, 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.58

ii Ownership rules

A UK operating licence (see Section III.i) is not subject to any express ownership rules. However, unless the SST otherwise consents, a route 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.59

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.60

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 an AOC has been issued to the operator of the aircraft pursuant to the Air Navigation (Overseas Territories) Order 2013.61

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 SST62 (including as to circumstances in which the SST expects to determine an application for permission).63

Safety

Regulation (EU) No. 2018/1139 on common rules in the field of civil aviation (Basic EASA Regulation) and its implementing regulations64 have been retained in UK law with some modification,65 with their application being acknowledged and enforced by the Air Navigation Order 2016 (as amended) (ANO). Together, these regulate safety in relation to, among other things, airworthiness, flight crew licensing and training, and aircraft operation with regard to European Aviation Safety Agency (EASA) aircraft – now known as Part 21 aircraft.66 The corresponding EU regulations are dealt with in the European Union chapter of this publication. The UK regulation in relation to non-EASA aircraft – now known as non-Part 21 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).67 Its functions, duties and powers are set by a combination of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018 and Regulation (EU) No. 996/2010 as retained in UK law (Regulation 996).68 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.69 In contrast, information and evidence obtained or created in the course of its investigations cannot be disclosed by the AAIB to any other person for purposes other than safety investigation, unless the court orders it to do so upon satisfaction that the benefits of the disclosure for any other purpose permitted by law outweigh the adverse domestic and international impact that such action may have on that or any future safety investigation.70 Although a voice or flight data recorder may be ordered to be disclosed on this basis,71 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.72

Regulation (EU) No. 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation has been retained in UK law with some modification.73 The CAA is the competent UK authority for such mandatory occurrence reporting.

Insurance

Regulation (EC) No. 785/2004 (as amended) has been retained in UK law with some modification.74 As retained, it specifies minimum insurance requirements for all aircraft operators and air carriers flying within, into, out of or over the territory of the UK in respect of liability for passengers, baggage and cargo, and third parties. The CAA is the designated authority for monitoring compliance with this Regulation.

The Civil Aviation (Insurance) Regulations 2005 (as amended)75 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.

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; and in relation to merger control, Part 3 of the Enterprise Act 2002 (as amended) and the EU Merger Regulation No. 139/2004 as retained in UK Law.76 The UK's national competition authority for these purposes is the Competition and Markets Authority (CMA).77 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. As to state aid, see Section I.

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.78 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.79

Regulation (EU) No. 2019/712 on safeguarding competition in air transport has been retained in UK law with some modification.80

Wrongful death

In England and Wales,81 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.82 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.83 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.84 Damages for bereavement are also recoverable, but only for the benefit of a limited class of persons85 and in a prescribed amount – currently £15,120.86 See Section VIII.i.

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.87 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,88 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.89 A claim for fixed compensation under Regulation (EC) No. 261/2004 is subject to a six-year limitation period.90

Subject to the court having jurisdiction to entertain an action made against the defendant concerned,91 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 towards passengers and third parties will depend upon the cause of action concerned. It is strict in respect of convention liability (where the relevant conditions of liability contained in the convention are met92) and for surface damage.93 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.94 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 retained and given effect in the UK in the form as provided for by the Consumer Protection Act 1987 (CPA) as amended.95 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]'.96 For these purposes, a product means any goods, including aircraft, and a product that is comprised in another product;97 there is a defect if 'the safety of the product is not such as persons generally are entitled to expect';98 and damage means 'death or personal injury or any loss of or damage to any property (including land)'.99 However, the CPA does not apply to:

  1. 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';
  2. loss of or any damage to the product itself; or
  3. 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.100

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.101

Liability under the CPA is joint and several, and without prejudice to liability on any other basis.102 It cannot be limited or excluded by any contract term, notice or other provision.103

Aside from the CPA, there is no specific statutory scheme for product liability of relevance to the aviation sector.104 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 prohibited105).

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.

The 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.106 Benefits paid by an agency of an EU Member State may also be recoverable.107

Drones

Drones are aircraft and as such are subject to the general regulations concerning aircraft contained in the ANO.108

EU Commission Implementing Regulation 2019/947 of 24 May 2019 on the procedures and rules for the operation of unmanned aircraft and EU Commission Delegated Regulation 2019/945 of 12 March 2019 on unmanned aircraft and on third country operators of unmanned aircraft systems have been retained in UK law and are in force with some modification.109 Detailed further guidance can be found in the CAA's publication CAP 722: Unmanned Aircraft System Operations in UK Airspace – Guidance.110

The ANO makes specific provisions in respect of small unmanned aircraft (SUA).111 These include:

  1. that a person must not cause any article or animal to be dropped from a SUA so as to endanger persons or property;
  2. that a remote pilot may only fly the SUA if reasonably satisfied that the flight can be safely made;
  3. that the remote pilot maintains direct, unaided visual contact with the SUA sufficient to monitor its flight path in relation to other aircraft, persons, vehicles, vessels and structures for the purpose of avoiding collisions;
  4. that the SUA must not fly for the purposes of commercial operations, except in accordance with permission granted by the CAA;
  5. that the operations will be conducted at a height of no more than 400 feet above the surface, unless the CAA gives permission to do so; and
  6. that the flight must not enter a flight restriction zone of a protected aerodrome, except with the permission of the relevant air traffic control unit, flight information service unit or aerodrome operator.112

Additional operating requirements apply to a SUA fitted with surveillance equipment.113

Anyone responsible for a drone weighing between 250 grammes and 20 kilogrammes must register as an operator with the CAA, upon which they will be issued with an operator's registration number that must be displayed on the drone, and must obtain an acknowledgement of competency from the CAA prior to commencing operations.114

Voluntary reporting

The UK has a confidential human factors incident reporting programme (CHIRP), which is run by a charitable trust.115 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),116 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.

Protection is afforded to whistleblowers within the civil aviation industry pursuant to the general provisions of the Public Interest Disclosure Act 1998, which protects them from detrimental treatment from their employer where they make a protected disclosure.117

As to mandatory reporting, see Section IV.

The year in review

Over the past few years, aviation in the UK has been affected, and distracted, by the uncertainty caused by the unfolding saga of Brexit and in particular as to its relationship with the EU and EU law following the completion of the UK's departure from EU membership. Although the UK formally left the EU on 31 January 2020, it continued to apply EU law as if it were a Member State until the end of a transitional implementation period that expired at 11pm on 31 December 2020.118 Negotiations as to the UK's relationship with the EU and EU law thereafter finally resulted in a Trade and Cooperation Agreement between the EU and the UK (TCA) that was concluded on 24 December 2020. The TCA was signed on 30 December 2020 and entered into force on a provisional basis on 1 January 2021. It has since been ratified by the UK and EU Parliaments and formally entered into force on 1 May 2021.119 Part 2, Heading 2, Articles 417 to 458 of the TCA deal with aviation.120 As to the consequences of Brexit, see Section XII.

As with the rest of the world, 2020 and 2021 have also seen the unprecedented effects on the UK of covid-19, which was declared a global pandemic on 11 March 2020. Although this has not caused the UK to formally close its borders, the severe drop in passenger numbers travelling into, out of and within the UK due to the restrictions imposed by the government on movement of UK persons, as well as similar restrictions on travel and movement applied in other countries, has led to a very significant reduction in all aviation activities in the UK. At the time of writing, the effects of this are ongoing and predicted to continue to be felt for a prolonged period.

Outlook

EU law played a very significant role in the law applicable to aviation in the UK until the completion of Brexit. For the time being, much extant EU aviation law has been carried over into UK law upon the completion of that Brexit process on 31 December 2020, albeit with some modification. The TCA has further assisted in clarifying the UK's relationship with the EU, including so far as aviation is concerned. Difficulties no doubt remain, however the impact of this transition has to date been somewhat muted as a result of the intervening consequences of the covid-19 pandemic – which, it is reasonable to anticipate, will have a profound effect upon the size and shape of the UK aviation industry for some time to come. The combination of these factors means that the UK aviation market and aviation law are likely to continue to endure a considerable period of uncertainty over the next few years.

Footnotes

1 Robert Lawson QC is a partner at Clyde & Co LLP.

2 Although the Channel Islands (i.e., the Bailiwicks of Guernsey and Jersey) and Isle of Man enjoy a unique relationship with the UK through the Crown, in the person of the Sovereign, they are not part of the UK but rather are Crown dependencies. See, for example, R (Barclay) v. Lord Chancellor and Secretary of State for Justice [2015] AC 276.

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

5 Civil Aviation Act 2012, Section 2.

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

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, but in relation to passenger rights and general consumer law it also has a range of powers under Part 8 of the Enterprise Act 2002 (as amended).

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

14 As to which, see Sections XI and XII.

15 As to the interpretation of retained EU law see Lipton v. BA City Flyer Ltd [2021] EWCA Civ 454 at [52]–[83].

16 See further Section XI.

17 i.e., carriers (1) either (a) owned, directly or through majority ownership, and effectively controlled by the UK, its nationals, or both, or (b) owned, directly or through majority ownership, and effectively controlled by one or more Member States, by other Member States of the European Economic Area, by Switzerland, by nationals of such states, or by a combination thereof, whether alone or together with the UK and/or UK nationals, that held a valid EU operating licence on the day the transitional implementation period ended; (2) having their principal place of business in the territory of the UK; (3) licenced in accordance with the law of the UK; and (4) holding an air operator certificate issued by the competent authority of the UK, and over which that authority exercises and maintains effective regulatory control: TCA, Articles 417 and 422.

18 i.e., carriers satisfying the requirements of Regulation (EC) No. 1008/2008 (as to which see the European Union chapter of this publication): see TCA, Articles 417 and 422.

19 TCA, Articles 419 and 421. Article 419(6) further provides that neither party shall unilaterally limit the volume of traffic, capacity, frequency, regularity, routing, origin or destination of such air transport services, or the aircraft type or types operated for that purpose by the air carriers of the other party (except as may be required for customs, technical, operational, air traffic management, safety, environmental or health protection reasons, in a non-discriminatory manner).

20 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.

21 As to which, see the Civil Aviation (Allocation of Scarce Capacity) Regulations 2007, as amended by the Operation of Air Services (Amendments etc.) (EU Exit) Regulations 2018.

22 As to state aid, as amended by the Air Services (Competition)(Amendment) (EU Exit) Regulations 2019. As to slots, as amended by the Airport Slots Allocation (Amendment) (EU Exit) Regulations 2019 and 2021, and also by the Air Traffic Management and Unmanned Aircraft Act 2021.

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

24 Namely, as amended by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment) (EU Exit) Regulations 2019. This defines a UK air carrier as an air carrier with a valid operating licence granted by the CAA in accordance with Chapter II of Regulation (EC) No.1008/2008 (as to which see Section III).

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

27 Air Carrier Liability Regulations 2004 (as amended).

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

29 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 and Gahan v. Emirates [2018] 1 WLR 2287, upholding an exception to this in respect of claims for compensation for delay in arrival at the destination pursuant to Regulation (EC) No. 261/2004.

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

31 Section 1(4).

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

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

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

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

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

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

38 Namely as amended by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment) (EU Exit) Regulations 2019. As to the EU Regulation, see the European Union chapter of this publication. As to English decisions of precedent in relation to the regulation post-Brexit, see Lipton v. BA City Flyer Ltd [2021] EWCA Civ 454 and Varano v. Air Canada [2021] EWHC 1336 (QB).

39 The Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005 as amended by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment)(EU Exit) Regulations 2019.

41 Namely in Civil Aviation Authority v. Ryanair DAC, High Court of England & Wales [2021] EWHC 1476 (ch), in respect of Ryanair's refusal to pay compensation to passengers affected by industrial action taken by its pilots in 2018 on the grounds that the delays and cancellations concerned were caused by extraordinary circumstances.

42 Namely as amended by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment) (EU Exit) Regulations 2019. As to the EU regulation, see the European Union chapter of this publication.

43 The Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2014, Regulation 24.

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

45 Namely by the Package Travel and Linked Travel Arrangements (Amendment) (EU Exit) Regulations 2018.

46 For the meaning of these terms see Regulation 2(5) and 2(3) of the Package Travel and Linked Travel Arrangements Regulations 2018 (as amended).

47 Civil Aviation (Air Travel Organisers' Licensing) Regulations 2012 as amended (2012 Regulations), Regulation 9.

48 2012 Regulations, Regulation 69.

49 CA Act 1982, Section 76(1).

50 Peires v. Bickerton's Aerodromes Limited [2017] 1 WLR 2865.

51 A Part-CAT AOC is one issued under Part ARO authorising the holder to operate commercial transport operations: Air Navigation Order 2016 (as amended) (ANO), Article 2 and Schedule 1.

52 ANO, Article 103.

53 Namely as amended by the Operation of Air Services (Amendment etc.) (EU Exit) Regulations 2018 as amended. Certain related provisions are contained in the Operation of Air Services in the Community Regulations 2009 (as amended).

54 In the Regulation as retained this is defined more narrowly than the same term as used in Regulation (EC) No.1008/2008, namely simply as the head office or registered office of the carrier concerned: see Article 2(26).

55 As to which, see CA Act 1982, Section 69A, and Civil Aviation Regulations 1991, Part III (as amended). Significantly, it is a condition of a route licence that the applicant (carrier) is a UK national, or a body that is incorporated under the law of any part of the UK and is controlled by UK nationals, unless the SST otherwise consents to the grant of the licence: CA Act 1982, Sections 69A and 65.

56 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 (as amended). 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.

57 ANO, Article 101(1) as amended by the Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019. The CAA must grant a national AOC 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).

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

59 See footnote 55.

60 CA Act 1982, Section 65(3).

61 ANO, Article 250 (as amended). A breach of this Article is a criminal offence: see ANO, Article 265.

62 See ANO, Article 250(3)–(7).

64 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.

65 Namely as amended by the Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019, as amended by the Aviation Safety (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 (as amended), and by the Aviation Safety (Amendment) (No. 2) Regulations 2021.

66 i.e., an aircraft that the Basic EASA Regulation and its implementing regulations (as retained) require to hold a certificate of airworthiness, a restricted certificate of airworthiness or a permit to fly under its scheme.

68 Namely as amended by the Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019.

69 Rogers v. Hoyle [2015] QB 265.

70 Regulation 996, Article 14. 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).

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

72 Chief Constable of Sussex Police v. Secretary of State for Transport [2016] EWHC 2280 (QB). In BBC v. Secretary of State for Transport [2019] 4 WLR 23, the court refused an application made by media organisations for disclosure of film footage taken by a pilot from the cockpit of an aircraft involved in a fatal accident even though it had been played to the jury in open court during a criminal trial of that pilot.

73 Namely as amended by the Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019 as amended.

74 Namely as amended by the Civil Aviation (Insurance)(Amendment) (EU Exit) Regulations 2018 and 2020.

75 By the Civil Aviation (Insurance)(Amendment) (EU Exit) Regulations 2018.

76 Namely as amended by the Competition (Amendment etc.) (EU Exit) Regulations 2019 as amended.

78 As to this concurrent relationship, see: the Competition Act 1998 (Concurrency) Regulations 2014 as amended by the Competition (Amendment etc.) (EU Exit) Regulations 2019); and the Memorandum of Understanding between the Competition and Markets Authority and Civil Aviation Authority – concurrent powers (9 February 2016).

80 Namely as amended by the Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019. The EU Regulation is addressed in the European Union chapter of this publication.

81 As to Scotland and Northern Ireland, see Section VIII.i. 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.

82 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.

83 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.

84 FAA 1976, Section 4.

85 i.e., the wife or husband, civil partner or cohabiting partner (as defined) 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.

86 FAA 1976, Section 1A.

87 i.e., per Article 29 of the Warsaw Convention and Article 35 of the Montreal Convention.

88 See its Sections 2, 5 and 9 respectively.

89 See its Sections 11 and 12 respectively.

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

91 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 and Montreal Conventions, at Articles 28 and 33 respectively; see Deaville v. Aeroflot Russian International Airlines [1997] 2 Lloyd's Rep 67.

92 See Sections II.i and II.ii.

93 As discussed in Section II.i.

94 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.

95 Including by the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019.

96 CPA, Section 2.

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

98 CPA, Section 3.

99 CPA, Section 5.

100 CPA, Section 5.

101 CPA, Section 4.

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

103 CPA, Section 7.

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

105 See its Article 29.

106 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.

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

108 This is subject to certain exceptions in relation to small unmanned aircraft (as to which see below), as set out in ANO, Article 23.

109 Namely, as amended by the Unmanned Aircraft (Amendment) (EU Exit) Regulations 2020.

111 ANO, Article 23. A small unmanned aircraft is defined for these purposes as any unmanned aircraft, other than a balloon or a kite, having a mass of not more than 20kg without its fuel but including any articles or equipment installed in or attached to the aircraft at the commencement of its flight: ANO, Schedule 1.

112 ANO, Articles 94–94C.

113 ANO, Article 95.

114 ANO, Articles 94C–94G.

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

117 This includes a disclosure that a criminal offence, failure to comply with a legal obligation, or the endangerment of the health and safety of any individual, has occurred, is occurring or is likely to occur.

118 Pursuant to the European Union (Withdrawal) Act 2018 (as amended).

119 It has been implemented in UK domestic law by the European Union (Future Relationship) Act 2020. For the TCA itself, see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/982648/TS_8.2021_UK_EU_EAEC_Trade_and_Cooperation_Agreement.pdf.

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