LM-2025-000186 - [2025] EWHC 2098 (Comm)

Fecha: 06-Ago-2025

Mr David Railton KC

Mr David Railton KC:

This is an application by the Second Claimant (“TUI BEL”) and the Third Claimant (“TUI NED”) against the Second Defendant (“SLX EST”) and the Third Defendant (“SLX LAT”) for summary judgment in respect of sums said to be due in respect of the business dealings between them in the period 2022 to 2024.

The Claimants are airlines, and the Defendants operate airline flights. From 2022 to 2024 the Defendants provided the Claimants with aircraft for each summer season, broadly on the basis that the Defendants, as lessors, provided the aircraft, crew, maintenance and insurance.

The arrangements between the parties were governed by a set of contracts, in particular:

(1)

the Aircraft Supply Agreement dated 10 February 2022 (the “ASA”);

(2)

the Aircraft ACMI Common Terms Agreement dated 10 February 2022 (the “CTA”), which includes at Annex D the ACMI Service Level Agreement (“SLA”); and

(3)

the individual Aircraft Specific Lease Agreements (“ASLAs”) for each aircraft leased to the Claimants.

There are five aircraft relevant to the present application. Out of these, four were leased by SLX EST to TUI BEL, and one was leased by SLX LAT to TUI NED. Each lease relates to the Summer season 2024, with the relevant ASLAs ending on 30 September 2024 or 6 October 2024.

In addition to the claims which are the subject of the present application for summary judgment, there are other claims in the present action by the First Claimant (“TUI AIR”) and TUI BEL against the First Defendant (“SLX MAL”). SLX MAL has not yet been served, and takes no part in these proceedings, and TUI AIR is not a party to the present application.

The test for summary judgment is well known, and is not in dispute. The principles have recently been conveniently summarised by Nicklin J in Amersi v Leslie [2023] EWHC 1368 (KB) at [142]. The central question is whether the defendant has a realistic, as opposed to fanciful, prospect of successfully defending the claim.

The detailed formulation and quantification of the claims by TUI BEL and TUI NED has varied during the course of the present application. As presented at the hearing of the application it consisted of essentially five elements:

(1)

Deposit: under Clause 8.1 of the CTA, and Annex A, Clause 3.1, TUI NED paid SLX LAT a cash deposit of €400,000 in respect of aircraft YL-LCT, which was repayable at the end of the relevant lease. This element of the claim is not in dispute, and a credit note was issued by SLX LAT to TUI NED in respect of it on 30 November 2024.

(2)

Block Hours reconciliation: under each ASLA the Claimants agreed to pay for a certain minimum number of hours utilisation of each aircraft (referred to as ‘Minimum Guaranteed Block Hours’). The rent paid under each lease covered those minimum hours. If it turned out that the aircraft could not in fact fly when required, for example because of mechanical failure, or the absence of crew, the minimum hours would be reduced; equally if the aircraft flew more than the minimum, the relevant Claimant would be liable to make an excess payment to the relevant Defendant. It was accordingly necessary at the end of each lease for there to be a reconciliation of the amounts payable each way, as recognised by CTA Annex A, clauses 1.4 and 2.2. TUI BEL claims that it is owed €373,441.77 from SLX EST in respect of this reconciliation (inclusive of the €86,060.52 referred to below), and TUI NED claimed €21,843.18 (since reduced, as referred to below, to €21,709) from SLX LAT.

(3)

Block Hours Utilisation Compensation: in the circumstances set out in Clause 8 of the ASA, it is possible for the Claimants to offset excess utilisation in respect of one aircraft (i.e. an excess over the minimum guaranteed hours) against an under utilisation on another aircraft. TUI BEL claims that it is entitled to an offset between two of the aircraft it leased from SLX EST, resulting in a claim for €86,060.52.

(4)

SLA claims: the service level terms set out in Annex D to the CTA provide for various remedies if there were issues with the Defendants’ performance, including fixed sums payable, e.g., for delays, or aircraft unavailability. This again required a determination at the end of the lease period of any amount payable. TUI BEL claims €603,535 from SLX EST in respect of these claims, and TUI NED claims €75,375 from SLX LAT.

(5)

Costs: Clauses 20.7 and 20.8 of the CTA provide for indemnities to be paid by the Lessor to the Lessee (and by the Lessee to the Lessor) including in respect of reasonable legal costs incurred in connection with the enforcement or preservation of rights under the ASLAs. To the date of the issue of the Claim Form the costs incurred by the Claimants are said to be £36,000. An indemnity is sought in respect of them and further legal costs incurred until judgment.