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Daniel Isenberg successful in important Supreme Court case on EU legal claims after Brexit

The Supreme Court has handed down its verdict Lipton v BA Cityflyer Ltdwhich unanimously rejects the airline’s appeal.

The appeal concerned Lipton’s right to compensation as a result of delayed travel from Milan to London in January 2018 where their flight had been canceled because the pilot was ill and a replacement could not be found. The matter in the claim was decided by whether this amounted to “extraordinary circumstances“, which gives the airline a defense against compensation claims under Regulation (EC) 261/2004. The judges unanimously held that it did not.

But there was a previous problem”potentially of much wider significance”, namely which law should apply in cases where the cause of action “arising” before Brexit, but the issue arose for determination when the UK was no longer a member state of the EU, and after the so-called “implementation” period’.

The majority of the court accepted Lipton’s approach, which it described as “Complete Code Analysis” – namely that the European Union (Repeal) Act 2018 dealt exhaustively with how EU law and rights and claims under it would apply in the UK after the end of the implementation period. In doing so, it rejected the “Interpretation Act analysis” (favored by Lord Lloyd-Jones in his dissent), which held that the 2018 Act was primarily prospective in effect, without affecting claims that had arisen before Brexit, on the basis of section 16 of the Interpretation Act 1978, which provides that the repeal of an Act does not affect the rights conferred by this Ordinance, unless the contrary intention appears.

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

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