Wed Jun 01, 2022 8:40 am
From the Judgement Hearing date: 26 April 2022 (this in the public domain available from the Technology and Construction Court Claim No: HT-2021-000495.
The airworthiness aspects were addressed, he was somewhat surprised at the lack of discussion with the QCAA to resolve the grounding issue. I dont totally agree with his comments here as the manufacturer has no direct relationship with the local CAA, the relationship is between the operator and regulator. The normal process is for the operator to seek input from the manufacturer where required and then present that along with their arguments to the regulator. Practically this is normally done by OEM representatives that are imbedded with the airline.
"Airworthiness
16. On any view, the question of how, if at all, the Condition affects the airworthiness of the A350s in question is critical. It may affect the question of breach of the A350 Agreement and, if Airbus is correct in its interpretation of the SCL, it directly affects whether the AOG Compensation claimed is payable.
17. Here, one has the most unfortunate situation of the EASA (European Union Aviation Safety Agency) taking the view that there are presently no airworthiness implications (although it appears that it expects updates from Airbus on its investigations into the Condition), while the Qatar Civil Aviation Authority (“QCAA”) considers that there are. Or at least there might be, and that is sufficient for it to ground Qatar’s A350s. On Airbus’s case, there is no rational basis for the QCAA to have grounded these aircraft. It seems to me that the QCAA should be capable of being persuaded to change its position, provided that Airbus, as the manufacturer, can demonstrate (as it contends it can) with all the information and expertise at its disposal, that in truth there are no airworthiness concerns. So persuading the QCAA must be in Airbus’s general interests. It is, of course, also in Qatar’s commercial interests, since it says that what it seeks, above all else, is to get its grounded A350s back in the air. Indeed, that was one of the hoped-for results of the proposed Preliminary Issue Trial which it has proposed. Airbus does not accept that Qatar really does seek that, but this does not matter for present purposes.
18. When I asked why there had not been detailed and intensive contact between Airbus and the QCAA to date, I was told first by Airbus that this is essentially a regulatory matter between Qatar and the QCAA and it was not for Airbus to intervene. That does not seem a very sensible or proactive approach. I was then told that Airbus had asked to join with Qatar in dealing with the QCAA at the outset but Qatar did not invite it to participate. If that is true, that is not a very sensible approach either. Whatever else happens in this case, I now expect Qatar and Airbus to work proactively together to try and satisfy the QCAA that its current approach is wrong. The fact that, if the QCAA is prepared to change its approach, this might adversely affect Qatar’s position in the litigation, in that the aircraft, whatever other faults they may have, might not now be regarded as unairworthy, is irrelevant. Moreover, it seems to me to be at least highly arguable that if Qatar does not work with Airbus in seeking to change the QCAA’s mind it would be failing reasonably to mitigate its losses. The converse, of course, is that Airbus must be a willing partner in all of this, so as to enable Qatar to mitigate such losses."
I also could not help noticing "Or at least there might be, and that is sufficient for it to ground Qatar’s A350s. On Airbus’s case, there is no rational basis for the QCAA to have grounded these aircraft." This is a big part of the case, is there actually a safety issue needing to ground aircraft, if not, there is no AOG payments.
He also addressed the two injunctions, one to do with stopping to deliver aircraft, the other to stop termination of aircraft under the contract.
"THE INJUNCTION APPLICATIONS
Introduction
36. There are two injunction applications before me. The first, made on 17 December, 2021 alongside the Preliminary Issue Application, is for an order restraining Airbus from exercising its purported right to:
(1) tender any new aircraft for delivery, through the Technical Acceptance Process;
(2) deliver any Certificate of Acceptance in relation to any new aircraft; and
(3) seek any pre-delivery payments for new aircraft
(“The Delivery Injunction”).
37. The second, made on 10 February 2022 is to:
(1) restrain the Defendant from implementing or by any means howsoever acting on:
(a) a Notice of Termination dated 17 January 2022 with reference CT2200370 relating to an A350XWB aircraft MSN 409; or
(b) a Notice of Termination dated 28 January 2022 with reference CT2200595 relating to an A350XWB aircraft MSN 430; (collectively the "Notices"); or
(c) any other such Notice of Termination;
(2) restrain the Defendant from marketing or selling or otherwise disposing of in any way to third parties or otherwise howsoever aircraft MSN 409 or MSN 430;
(3) restrain the Defendant from issuing any further Notice(s) of Termination in respect of any A350XWB Aircraft scheduled for delivery by the Defendant pursuant to the Aircraft Specific Purchase Agreement dated 18 June 2007
(“the Termination Injunction”)."
Both injunctions were denied
"48. For all those reasons, there is no basis for the grant of the Delivery Injunction."
"61. For all the reasons given above, I refuse the application for the Termination Injunction."
