At the end of March 2021, the Court of Appeal handed down its decision on air passenger rights in the case of Lipton v BA City Flyer.

Of particular significance to all English lawyers beyond the field of aviation and consumer rights, however, was the guidance provided by Lord Justice Green at paragraphs 52 – 70 of the judgment concerning the approach to be adopted to retained EU law post-Brexit.

In summary:

• From 11pm on 31 December 2020 (the “IP Completion Day”), EU law ceased to be applicable in the UK Courts. However, the EU (Withdrawal) Act 2018 (as amended, the “EUWA”) maintained as part of UK law, the rights, legislation and case law (domestic and EU) applicable in the EU as at IP Completion Day (together, the “Retained EU Law”). In other words, as far as the UK is concerned, EU law was “frozen” as at IP Completion Day but it can still be amended after that date as is the case with any other domestic case law/legislation through government legislation.
• In terms of status:
  • Under sections 5(1) and 6(1) of the EUWA, after IP Completion Day, EU law (including decisions of the Court of Justice of the EU, “CJEU”) no longer takes supremacy over domestic UK decisions/legislation (including Retained EU Law).
  • However, under section 5(2) of the EUWA, the principle of supremacy “…continues to apply on or after [IP Completion Day] so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before [IP Completion Day]“.
  • In other words, Retained EU Law made pre-IP Completion Day continues to have legislative priority over a piece of domestic legislation that: (i) also pre-dated IP Completion Day; and (ii) covers (all or some of) the same ground.
• In terms of interpretation in the lower courts:
  • Under section 6(2) of the EUWA “a court or tribunal may have regard to anything done on or after [IP Completion Day] by the [CJEU], another EU entity or the EU so far as it is relevant to any matter before the court or tribunal“.
  • Section 6(3) of the EUWA also provides that the lower courts (including, in general, the English High Court) are bound to decide any question as to the meaning, validity or effect in accordance with the decisions of the CJEU or domestic courts made prior to IP Completion Day.
• However, when it comes to the appellate courts (Supreme Court, Court of Appeal or the High Court sitting as an appellate court):
  • Unlike the lower courts, they are not bound by CJEU case law (see section 6(4) of the EUWA and The European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 (“Relevant Court Regulations”); and
  • The Court of Appeal “is bound by retained EU case law so far as there is post-transition case law which modifies or applies that retained EU case law and which is binding on the relevant court“. Further, “[i]n deciding whether to depart from any retained EU case law by virtue of section 6(4)(ba) of the [EUWA] and [the Relevant Court Regulations], a relevant court must apply the same test as the Supreme Court would apply in deciding whether to depart from the case law of the Supreme Court.“

The Court of Appeal therefore noted that it “…cannot therefore assume that the old ways of looking at EU derived law still hold good. We must apply the new approach. There is much that is familiar but there are also significant differences.“

This was the first decision at the Court of Appeal level where English judges had to deal with the concept of diverging from the principles of EU jurisprudence. In the particular case, the Court of Appeal did reach a decision in relation to interpretation of wording of a EU regulation which was divergent from the approach of a CJEU decision, Airhelp Ltd v Scandinavian Airline System SAS (Case C-28/20), that same month. This will surely not be the last such instance and the judgment is a helpful starting point when it comes to interpretation of Retained EU Law going forward.