The claimants (M) claimed damages or compensation arising out of the disruption caused to air travel by the spread of volcanic ash from Iceland into European airspace. M were a family who had been on holiday in Ecuador. They were returning to the United Kingdom by air, via Madrid. Flight restrictions imposed as a result of the ash cloud meant that flights from Madrid to London had been cancelled. M received a full refund from the defendant airline (D) in respect of the portion of their tickets relating to the Madrid to London leg of their journey. M then made their own way home from Madrid to London. M claimed their travel expenses as damages for breach of contract and compensation under Regulation 261/2004. D denied that it was in breach of the contract of carriage, relying on its conditions of carriage, or of the Regulations.

HELD: (1) D relied on the evidence of a "pricing manager" that a passenger who purchased a flight directly or through its website was required to confirm that he or she had read and accepted D's conditions of carriage prior to the ticket being issued. That evidence was not sufficient and no documentary or other evidence had been produced to confirm that the conditions were accepted in the instant case. D had failed to discharge the burden of proof by producing cogent evidence of incorporation by reference. Therefore D's terms did not apply (see para.11 of judgment). (2) D had proved that the flight was cancelled by reason of the flight restrictions caused by the presence of volcanic ash in European airspace following the eruption of Iceland's Eyjafjallajokull volcano. The cancellation was due to circumstances outside D's responsibility or control in which it was impossible to operate the flight. It did not amount to a breach of a term of the contract of carriage. D had proved that the circumstances represented meteorological conditions incompatible with the operation of the flight and unavoidable extraordinary circumstances which by virtue of art.5(3) of the Regulation excluded D from having to pay compensation for cancellation under art.7(1)(a) (paras 18, 19, 27). (3) In the absence of a finding of breach of contract arising from the flight cancellation alone, M had the choice of either being re-routed or accepting reimbursement and making their own transport arrangements at their own cost. The Regulation did not require the carrier to fund passengers' alternative transport arrangements. M relied on what had been said by D's representative at Madrid airport, but there was no evidence that the representative either refused to fly M or failed to offer an alternative flight as soon as possible or offered or agreed to pay the costs of alternative transport. D had satisfied its assistance obligations pursuant to the Regulations in circumstances in which M chose not to wait and made their own way from Madrid to London (paras 29, 36, 40, 42).

Claim dismissed