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Flight delay and cancellation compensation, Tui/Thomson ONLY
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I have received a reply today from Thomsons stating that they have looked into our claim and as follows is part of the reply:
'We've looked in detail at the circumstances that surround your experience and I can see from our internal airline reports that the aircraft experienced unforeseen technical issues with the engine in-flight. The aircraft then had to make an emergency landing at Athens Airport for this to be investigated and repaired. Components that form part of the aircrafts engine have a certain life span. Therefore this would be classed as Extraordinary Circumstances as this would not be a result of poor maintenance or anything that could have been foreseen. Therefore this delay is classed as Extraordinary Circumstances.'
The letter then goes on the quote other gibberish (I assume they do this to try and baffle people and therefore hope they give up - something which I won't be doing!).
It then states:
'In the case of your flight, the cause of delay an 'unexpected flight safety shortcoming' arising from the discovery of a technical fault that doesn't fall into the category of something that was or ought to have been discovered during routine maintenance.'
Then quotes the decision of the Wallentin-Hermann V Alitalia.
Specific replay to our complaint:
'In the case of the issue that affected your aircraft, there was an unexpected surge in the engines while in-flight. As a problem with engines could potentially be a serious problem, the aircraft has to be inspected, and in some cases, repaired as soon as possible. Incidents such as these are rare and not something that either ought to have been detected during routine maintenance or which occurred as a result of the failure of Thomson to implement a satisfactory maintenance scheme or fail to implement that scheme accordingly, the failure in-flight was entirely unexpected. Therefore, the circumstances are not of a kind which would fall outside the definition of Extraordinary Circumstances'.
I guess no airline actually knows they are going to have an in-flight failure or is that me just being me?!
Any thoughts with regards to going forward would be appreciated.
Thanks
Hi, well theyve opened up with the usual EC, but look at the wording, "Components that form part of the aircrafts engine have a certain life span." well if they have a certain lifespan, it should have been replaced whilst having routine maintenance.0 -
Just an update on my case.....
I forwarded my court bundle to Thomson, which they received Friday. Surprise, Surprise Saturday morning I have a letter from Mr Moran offering me full settlement including interest. :j
For reference the flight was TOM039 which was delayed by 12hrs 48min on 5th Nov 12.
In the court bundle I included:
All Correspondence between Thomson and me (including the without prejudice letters as they were not offers to settle and should not have been marked as such)
All Court paperwork including the N1
Wallentin-Herman V Alitalia
EC 261/2004
Sturgeon and Others V Air France
Witness Statement from me.
I've included a copy of my witness statement, as it may prove useful to someone on here (Just make sure the comments apply before blindly copy and pasting though).
1) Thisstatement relates to denied bording on flight TOM039 which was scheduled todepart from CancunAirport at 22:30GMT on the 5th November 2012.The flight actually departed at 11:18hrs GMT on the 6th November with a totaldelay of 12hrs and 48 minutes, and subsequent claim under Regulation 261/2004
On flight TOM039were both ****** and ******. On arrival at Gatwick airport ******* was handed aletter by a representative of the airline. This can be exhibited at ***/1 Thisshows the reason of the delay
"Yourflight could not operate until the following day due to an operational issuewith the crews legally permitted working hours"
2).*****contacted the defendant on the 7th November 2012 requesting compensation forthe delayed flight however did not receive a response until January requestingthat a claims form be completed. ****** sent a further letter before actiongiving the defendant 21 days to respond to the claim before legal action wastaken. On the 18 March 2013 the defendant responded stating thatthey had concluded their investigation and gave the following reason for thedelay
"Yourflight was delayed due to the aircraft that was scheduled to service yourflight being hit by lightning and needing a window replacing and therefore anew aircraft was used to replace it. This caused a knock on effect on yourflight which subsequently led to your delay"
Paragraph 6 ofthe defence filed states " That the aircraft which was scheduled tooperate the claimants flight, aircraft registration G-OBYG was subject to anunexpected technical fault namely a malfunctioning toilet caused by a blockageas a result of a sanitary product having been disposed of by a previouspassenger. This resulted in a delay in the departure of the aircraft fromLondon Gatwick to Cancun.
With referenceto paragraph 6; On the flight to Cancun (TOM062) which Mr****** and Miss ****were on this exact same fault occurred, namely a blocked toilet which resultedin the Captain requesting passengers refrain from taking in excess liquid orfrom using the remaining toilets unless absolutely necessary otherwise theplane would need to be diverted to the United States mid flight for repair.
The judgementfrom WALLENTIN-HERMANN v ALITALIA Case C-549/07 provides guidance on what wouldbe an extenuating circumstance
Article 5(3) ofRegulation (EC) No 261/2004 of the European Parliament and of the Council of 11February 2004 established common rules on compensation and assistance topassengers in the event of denied boarding and of cancellation or long delay offlights, and repealing Regulation (EEC) No 295/91, must be interpreted asmeaning that a technical problem in an aircraft which leads to the cancellationof a flight is not covered by the concept of ‘extraordinary circumstances’within the meaning of that provision, unless that problem stems from events which,by their nature or origin, are not inherent in the normal exercise of theactivity of the air carrier concerned and are beyond its actual control. TheConvention for the Unification of Certain Rules for International Carriage byAir, concluded in Montreal on 28 May 1999, is not decisive for the interpretationof the grounds of exemption under Article 5(3) of Regulation No 261/2004.
The frequency of the technical problems experienced by an air carrier is not initself a factor from which the presence or absence of ‘extraordinarycircumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 canbe concluded.
The fact that an air carrier has complied with the minimum rules on maintenanceof an aircraft cannot in itself suffice to establish that that carrier hastaken ‘all reasonable measures’ within the meaning of Article 5(3) ofRegulation No 261/2004 and, therefore, to relieve that carrier of itsobligation to pay compensation provided for by Articles 5(1)(c) and 7(1) ofthat regulation.
3).STURGEON& OTHERS v AIR FRANCE Cases C-402/07 & C-432/07 provides furtherguidance on what is not an extraordinary circumstance:
Articles 2(l), 5and 6 of Regulation (EC) No 261/2004 of the European Parliament and of theCouncil of 11 February 2004 establishing common rules on compensation andassistance to passengers in the event of denied boarding and of cancellation orlong delay of flights, and repealing Regulation (EEC) No 295/91, must beinterpreted as meaning that a flight which is delayed, irrespective of theduration of the delay, even if it is long, cannot be regarded as cancelledwhere the flight is operated in accordance with the air carrier’s originalplanning.
Articles 5, 6 and 7 of Regulation No 261/2004 must be interpreted as meaning thatpassengers whose flights are delayed may be treated, for the purposes of theapplication of the right to compensation, as passengers whose flights arecancelled and they may thus rely on the right to compensation laid down inArticle 7 of the regulation where they suffer, on account of a flight delay, aloss of time equal to or in excess of three hours, that is, where they reachtheir final destination three hours or more after the arrival time originallyscheduled by the air carrier. Such a delay does not, however, entitlepassengers to compensation if the air carrier can prove that the long delay wascaused by extraordinary circumstances which could not have been avoided even ifall reasonable measures had been taken, namely circumstances beyond the actualcontrol of the air carrier.
Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that atechnical problem in an aircraft which leads to the cancellation or delay of aflight is not covered by the concept of ‘extraordinary circumstances’ withinthe meaning of that provision, unless that problem stems from events which, bytheir nature or origin, are not inherent in the normal exercise of the activityof the air carrier concerned and are beyond its actual control.
4).It will besaid that an adverse inference should be drawn to the fact that the defence haschanged it reason for the delay on two occasions. It is also submitted that theDefendant has failed to prove that the cancellation has been caused byextraordinary circumstances or that either of these faults actually occurred.No detail is given in the defence of the circumstances which lead to thecancellation.of Mr ******and Miss ****** flight.
It would also besaid that given the exact same fault occurred on Mr ****** & Miss ******flight to Cancun that a fault of this nature is inherentin the normal exercise of the activity of the Air Carrier.
In relation toparagraph 3 of the defence statement; All responses in relation to the reasonfor delay have been by TUI Travel, who are the owners of the plane both Mr *****& Miss ***** travelled on which displays the TUI logo on its tail, and assuch it is submitted that TUI is the correct carrier in this instance
This statementconsisting of ..... pages each signed byme is true to the best of my knowledge and belief I make it knowing that, ifit is tendered in evidence, I shall be liable to prosecution if I have wilfullystated anything in it which I know to be false or do not believe to be true
You will see that I showed the defendant as TUI Travel. Obviously this isn't correct, but I decided to run with it anyway as you can see by the argument above countering the defence statement filed.
Hopefully this may help someone out who doesn't have the time to change defendants (or doesn't want too) as ultimately they will cave in at the last hurdle anyway.
For those struggling with the court side of things I would suggest you read the FAQ at the beginning of the thread.
This book from amazon helped me prepare for court "Small Claims Procedure in the County Court"
Its probably the best £18 I've spent as it laid the whole process out for me including what to expect if we had actually made it to court.0 -
If I haven't got any tickets or proof that I was on a particular flight have I got no chance at compensation? I wrote a letter of complaint after the holiday and received the usual fob off letter but haven't got a copy of this either as it was 2008.
Same here, we have the payments from our bank, so that would help, but in your dealings with Thomson, have they ever denied you were a passenger or on the flight? I didnt think so.
You can ask for these details directly, or someone will be along to advise what to put on your witness statement.0 -
Terry, bloody brill mate, this will help me as they have stated wrong name, however they did say right of re-service be dipensed with. ( Not sure if they are saying that it is OK or they insist on us serving new form with name change on N244.Just an update on my case.....
I forwarded my court bundle to Thomson, which they received Friday. Surprise, Surprise Saturday morning I have a letter from Mr Moran offering me full settlement including interest. :j
For reference the flight was TOM039 which was delayed by 12hrs 48min on 5th Nov 12.
In the court bundle I included:
All Correspondence between Thomson and me (including the without prejudice letters as they were not offers to settle and should not have been marked as such)
All Court paperwork including the N1
Wallentin-Herman V Alitalia
EC 261/2004
Sturgeon and Others V Air France
Witness Statement from me.
I've included a copy of my witness statement, as it may prove useful to someone on here (Just make sure the comments apply before blindly copy and pasting though).
1) Thisstatement relates to denied bording on flight TOM039 which was scheduled todepart from CancunAirport at 22:30GMT on the 5th November 2012.The flight actually departed at 11:18hrs GMT on the 6th November with a totaldelay of 12hrs and 48 minutes, and subsequent claim under Regulation 261/2004
On flight TOM039were both ****** and ******. On arrival at Gatwick airport ******* was handed aletter by a representative of the airline. This can be exhibited at ***/1 Thisshows the reason of the delay
"Yourflight could not operate until the following day due to an operational issuewith the crews legally permitted working hours"
2).*****contacted the defendant on the 7th November 2012 requesting compensation forthe delayed flight however did not receive a response until January requestingthat a claims form be completed. ****** sent a further letter before actiongiving the defendant 21 days to respond to the claim before legal action wastaken. On the 18 March 2013 the defendant responded stating thatthey had concluded their investigation and gave the following reason for thedelay
"Yourflight was delayed due to the aircraft that was scheduled to service yourflight being hit by lightning and needing a window replacing and therefore anew aircraft was used to replace it. This caused a knock on effect on yourflight which subsequently led to your delay"
Paragraph 6 ofthe defence filed states " That the aircraft which was scheduled tooperate the claimants flight, aircraft registration G-OBYG was subject to anunexpected technical fault namely a malfunctioning toilet caused by a blockageas a result of a sanitary product having been disposed of by a previouspassenger. This resulted in a delay in the departure of the aircraft fromLondon Gatwick to Cancun.
With referenceto paragraph 6; On the flight to Cancun (TOM062) which Mr****** and Miss ****were on this exact same fault occurred, namely a blocked toilet which resultedin the Captain requesting passengers refrain from taking in excess liquid orfrom using the remaining toilets unless absolutely necessary otherwise theplane would need to be diverted to the United States mid flight for repair.
The judgementfrom WALLENTIN-HERMANN v ALITALIA Case C-549/07 provides guidance on what wouldbe an extenuating circumstance
Article 5(3) ofRegulation (EC) No 261/2004 of the European Parliament and of the Council of 11February 2004 established common rules on compensation and assistance topassengers in the event of denied boarding and of cancellation or long delay offlights, and repealing Regulation (EEC) No 295/91, must be interpreted asmeaning that a technical problem in an aircraft which leads to the cancellationof a flight is not covered by the concept of ‘extraordinary circumstances’within the meaning of that provision, unless that problem stems from events which,by their nature or origin, are not inherent in the normal exercise of theactivity of the air carrier concerned and are beyond its actual control. TheConvention for the Unification of Certain Rules for International Carriage byAir, concluded in Montreal on 28 May 1999, is not decisive for the interpretationof the grounds of exemption under Article 5(3) of Regulation No 261/2004.
The frequency of the technical problems experienced by an air carrier is not initself a factor from which the presence or absence of ‘extraordinarycircumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 canbe concluded.
The fact that an air carrier has complied with the minimum rules on maintenanceof an aircraft cannot in itself suffice to establish that that carrier hastaken ‘all reasonable measures’ within the meaning of Article 5(3) ofRegulation No 261/2004 and, therefore, to relieve that carrier of itsobligation to pay compensation provided for by Articles 5(1)(c) and 7(1) ofthat regulation.
3).STURGEON& OTHERS v AIR FRANCE Cases C-402/07 & C-432/07 provides furtherguidance on what is not an extraordinary circumstance:
Articles 2(l), 5and 6 of Regulation (EC) No 261/2004 of the European Parliament and of theCouncil of 11 February 2004 establishing common rules on compensation andassistance to passengers in the event of denied boarding and of cancellation orlong delay of flights, and repealing Regulation (EEC) No 295/91, must beinterpreted as meaning that a flight which is delayed, irrespective of theduration of the delay, even if it is long, cannot be regarded as cancelledwhere the flight is operated in accordance with the air carrier’s originalplanning.
Articles 5, 6 and 7 of Regulation No 261/2004 must be interpreted as meaning thatpassengers whose flights are delayed may be treated, for the purposes of theapplication of the right to compensation, as passengers whose flights arecancelled and they may thus rely on the right to compensation laid down inArticle 7 of the regulation where they suffer, on account of a flight delay, aloss of time equal to or in excess of three hours, that is, where they reachtheir final destination three hours or more after the arrival time originallyscheduled by the air carrier. Such a delay does not, however, entitlepassengers to compensation if the air carrier can prove that the long delay wascaused by extraordinary circumstances which could not have been avoided even ifall reasonable measures had been taken, namely circumstances beyond the actualcontrol of the air carrier.
Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that atechnical problem in an aircraft which leads to the cancellation or delay of aflight is not covered by the concept of ‘extraordinary circumstances’ withinthe meaning of that provision, unless that problem stems from events which, bytheir nature or origin, are not inherent in the normal exercise of the activityof the air carrier concerned and are beyond its actual control.
4).It will besaid that an adverse inference should be drawn to the fact that the defence haschanged it reason for the delay on two occasions. It is also submitted that theDefendant has failed to prove that the cancellation has been caused byextraordinary circumstances or that either of these faults actually occurred.No detail is given in the defence of the circumstances which lead to thecancellation.of Mr ******and Miss ****** flight.
It would also besaid that given the exact same fault occurred on Mr ****** & Miss ******flight to Cancun that a fault of this nature is inherentin the normal exercise of the activity of the Air Carrier.
In relation toparagraph 3 of the defence statement; All responses in relation to the reasonfor delay have been by TUI Travel, who are the owners of the plane both Mr *****& Miss ***** travelled on which displays the TUI logo on its tail, and assuch it is submitted that TUI is the correct carrier in this instance
This statementconsisting of ..... pages each signed byme is true to the best of my knowledge and belief I make it knowing that, ifit is tendered in evidence, I shall be liable to prosecution if I have wilfullystated anything in it which I know to be false or do not believe to be true
You will see that I showed the defendant as TUI Travel. Obviously this isn't correct, but I decided to run with it anyway as you can see by the argument above countering the defence statement filed.
Hopefully this may help someone out who doesn't have the time to change defendants (or doesn't want too) as ultimately they will cave in at the last hurdle anyway.
For those struggling with the court side of things I would suggest you read the FAQ at the beginning of the thread.
This book from amazon helped me prepare for court "Small Claims Procedure in the County Court"
Its probably the best £18 I've spent as it laid the whole process out for me including what to expect if we had actually made it to court.
So our flight was bought from First Choice, ( I put TUI in brackets on the claim) The plane livery was First chaoice, with TUI on the tail,
anyway enough for now, im sure to have more questions0 -
Very many congratulations, TerryUK73! Great result.0
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If I haven't got any tickets or proof that I was on a particular flight have I got no chance at compensation? I wrote a letter of complaint after the holiday and received the usual fob off letter but haven't got a copy of this either as it was 2008.
This is typical Thomson stalling & trying to put you off. Have you still got your booking ref? If not, send Thomson a Subject Access Request, it will cost you £10 & you should get all the info they have on you.
Have you still got your bank statements? that will confirm booking and if your lucky like me, I have a visa transaction from the airport approx. 45 minutes before we boarded the plane.0 -
Hi All,
So heres what ive done so far.
Sent the initial letter to thomson about my flight delay
Got two letters back stalling
Sent letter stating if its not settled within 14 days will go to court
Now i have just received a reply from thomson (a long 4 page reply) stating:
"as part of our investigation I can see from our internal airline reports that the aircraft experienced a technical issue prior to departure and the decision was then made for this aircraft to return to stand. Therefore the root cause of this delay sits under Extraordinary Circumstances, as the technical issue with the aircraft was not due to poor maintenance and is not something that could have been foreseen as it had passed its pre-flight safety checks."
Does it really count as an extraordinary circumstance? when we was on the plane after 3 hours the pilot informed us that it was due to a problem with a leakage at the brakes, then we were delayed a further hour because when the part was repaired, we had to wait for a back-up pilot to come as our pilots would run out of flight time mid-way through the flight? Surely this isn't extraordinary circumstances? Any advice would be appreciated.
Thanks0 -
My flight to the Dominican Republic from Gatwick (TOM048) on Jan 26th 2011 was delayed for more than 24 hours. We were told simply that there was no aircraft available. I sent a claim to Thomson on May13th 2013 and eventually had a reply on July 12th 2013 rejecting my claim as it was more than 2 years ago. They quoted the Montreal convention but it seems this is just another way of fobbing us off. I have since written to the CAA and expect a reply shortly.0
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Thanks have had a letter from him just can't put my hands on it at the moment0
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