The three main airlines using this loophole which states that passengers have to submit their claims within two years of the flight otherwise they will not be able to get their money back are Thomson, Jet2 and Wizz Air. They are justifying this on the basis of an international airline law featured in the Montreal Convention. The EC regulation 261/2004 states a six year window for claims to be made against airlines, whereas The Montreal Convention states just a two year statute of limitation for claims to be made. Even with the knowledge that the tightening of the EC regulation 261/2004 does in fact supersede the Montreal Convention airlines are still using the two-year law as their defence in court.
The truth behind the matter is that other airlines such as Easy jet and Virgin are paying Flight Compensation for delayed or cancelled flights dating back six years and the UK courts do consider claims which date back six years. It is only a few airlines that are proving to be difficult to abide by the new EC regulation concerning Compensation for Delayed Flights. However, in May 2014 two test cases will be going through the supreme courts. One being the Dawson case which involves a Thomson flight delay of 8 hours from Gatwick to the Dominican Republic and the second being the Huzar case which involves a Jet2 flight delay of 27 hours from Malaga to Manchester. In both cases the airlines are disagreeing with the EC regulation and are defending themselves using the two-year excuse from the Montreal Convention instead. Thomson appealed after they lost case the Dawson case, and Jet2 have appealed against the Huzar case.
Therefore, in May 2014 the decision of the appeal that will be heard at the UK Supreme Court could essentially open the floodgates for all of the similar cases that have been put on hold, waiting for the appeal decision of these two test cases to be made. If Thomson loses this case then they will have to deal with the backlog of customers that are waiting to submit their claims for Flight Compensation dating back as far as six years. For a backlog of customers dating back six years, this could result in a rather hefty payout for companies like Thomson. After the judgement has been made, it will provide the European Court of Justice with a much clearer and concise understanding which will mean that future cases will be resolved much quicker.