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Flight delay and cancellation compensation, Tui/Thomson ONLY

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  • David_e
    David_e Posts: 1,498 Forumite
    Part of the Furniture Combo Breaker
    Jez_Taylor wrote: »
    A Cautionary Tale

    Sorry to hear that but thanks for sharing.
  • matt2baker
    matt2baker Posts: 114 Forumite
    Seventh Anniversary Combo Breaker
    Jez_Taylor wrote: »
    A Cautionary Tale
    I have just spent the morning at the County Court and have lost my case.

    So what did this cost you in £ terms then........?
  • blondmark
    blondmark Posts: 456 Forumite
    Jez_Taylor wrote: »
    A Cautionary Tale
    I have just spent the morning at the County Court and have lost my case. My case was based on a 20 hour flight delay from last year following the failure of a Hydro Mechanical Unit (it works with the fuel pump).

    ...

    My entire argument relied on the Wallentin judgement and the interpretation of the meaning of a part being 'inherent' to an aircraft. The Judge saw it differently and stated that the failure of the HMU was beyond the control of the air carrier and that Thomson did everything that was reasonably possible the rectify the issue once it had arisen.

    Very sorry to learn of this disappointing result.

    I have to admit that I winced when I saw the words "... and the interpretation of the meaning of a part being 'inherent' to an aircraft". With respect, this looks a lot like a misunderstanding.

    Wallentin refers not to aircraft parts being inherent to an aircraft (all of them are since none are detachable), but to an event being inherent in the normal exercise of the activity of the air carrier. I'm hoping that's the point you made rather than referring to an aircraft part being inherent to an aircraft (which is meaningless).

    Although a basic misunderstanding of this sort would be enough to sink your claim, and the Judge can only rule on it as it's presented and cannot put words into your mouth, you would have thought that on a careful reading of the case, the Judge could have seen past the semantics and ruled instead on Wallentin's true meaning.

    Since when was an issue with a fuel pump not a problem inherent in the normal exercise of the activity of an air carrier? I bet at least one in the fleet goes wrong every month. Totally and utterly inherent I would have thought, no different from bald tyres, worn-out bolts or split wiper blades. All part and parcel of running an airline.

    It's almost as if you can't set foot in some courts unless you have an expert report stating just how inherent in the normal activity of an air carrier your technical fault really is.
  • MrsChewy
    MrsChewy Posts: 14 Forumite
    I wonder if the new guidelines from the EU are kicking in and claimants should now put more work into ensuring that the airline demonstrates what measures it took to subsequently avoid the disruption.
  • Vauban
    Vauban Posts: 4,737 Forumite
    Part of the Furniture Combo Breaker
    MrsChewy wrote: »
    I wonder if the new guidelines from the EU are kicking in and claimants should now put more work into ensuring that the airline demonstrates what measures it took to subsequently avoid the disruption.

    I don't accept that there are new guidelines from the EU. The document is written by the NEBs of European countries, and is described as "preliminary". Nor does it represent the legal view of the European Commission (who explicitly regard it as non-binding). It cannot supersede either the Regulation or the subsequent binding European case law, such as Wallentin and Sturgeon.

    Despite the very generous interpretation of technical failures (what technical failures wouldn't count as extraordinary, if you wanted to argue the toss with these scenarios), the very first sentence of the document notes that an "extraordinary circumstance" has to "meet the three criteria, unpredictable, unavoidable and external." As Wallentin notes, most of the technical failures experienced by airlines are not external but inherent in the operation of the airline's activity.

    I think you are right though that this document means claimants need to press the airlines on what they did to minimise delay. The document notes that, even if extraordinary circumstances are proved, "the air carrier must also explain what reasonable measures it took to subsequently avoid the disruption". The concept of reasonable measures in defined clearly in the Wallentin judgement (the so-called Third Question). Personally, I struggle to see how a delay of some 20 hours cannot be consistent with an effort to use all the resources at an airlines disposal to prevent the disruption.

    So in my view these guidelines are a terrible con - and some will argue a backdoor attempt to rewrite the law. But they are not the law, and the Court must not be distracted by them. At the end of the day, however, I suspect some judges understand Wallentin, and some do not. There's a bit of luck involved in that - and there have never been guarantees in this process ...
  • blondmark wrote: »
    Very sorry to learn of this disappointing result.

    I have to admit that I winced when I saw the words "... and the interpretation of the meaning of a part being 'inherent' to an aircraft". With respect, this looks a lot like a misunderstanding.

    Wallentin refers not to aircraft parts being inherent to an aircraft (all of them are since none are detachable), but to an event being inherent in the normal exercise of the activity of the air carrier. I'm hoping that's the point you made rather than referring to an aircraft part being inherent to an aircraft (which is meaningless).

    Although a basic misunderstanding of this sort would be enough to sink your claim, and the Judge can only rule on it as it's presented and cannot put words into your mouth, you would have thought that on a careful reading of the case, the Judge could have seen past the semantics and ruled instead on Wallentin's true meaning.

    Since when was an issue with a fuel pump not a problem inherent in the normal exercise of the activity of an air carrier? I bet at least one in the fleet goes wrong every month. Totally and utterly inherent I would have thought, no different from bald tyres, worn-out bolts or split wiper blades. All part and parcel of running an airline.

    It's almost as if you can't set foot in some courts unless you have an expert report stating just how inherent in the normal activity of an air carrier your technical fault really is.

    I have amended my entry. It was the way I had written it. Thomson argued that the part had never failed (produced an exhibit that showed the number of failures they had had of this part in the past year which was zero). They had evidence that this part does not have a shelf life and as they could produce a certificate for the aircraft which showed it was airworthy only 400 flight hours earlier was enough to convince the Judge. These are all points which is was difficult to question and was enough to convince the judge that this problem was not inherent with the operation of the aircraft. I did use all the arguments in Wallentin about minimum standards/ absence of problem with a part can't be relied upon etc but it was not enough.

    My main point regarded the examples in paragraph 26 of Wallentin about what is within the airlines control. I think Wallentin is quite clear but as mine and a couple of recent losses have shown, technical issues are much harder to argue. With regards the CAA guidance, it was clear to me today that this has no binding authority within the court as the Spanish CAA had ruled in my favour so I would not put to much emphasis on this.
  • matt2baker wrote: »
    So what did this cost you in £ terms then........?

    Original fee was £70 then £110 for the court and another £40 or so to amend the claim from Thomson Holidays to Thomson Airways.
  • Vauban
    Vauban Posts: 4,737 Forumite
    Part of the Furniture Combo Breaker
    Jez_Taylor wrote: »
    Original fee was £70 then £110 for the court and another £40 or so to amend the claim from Thomson Holidays to Thomson Airways.

    You didn't have to pay any of Thomson's costs then?

    Unlucky all the same - my commisserations.
  • David_e
    David_e Posts: 1,498 Forumite
    Part of the Furniture Combo Breaker
    edited 29 July 2013 at 8:47PM
    Written before Jez Taylor's further info
    blondmark wrote: »
    I have to admit that I winced when I saw the words "... and the interpretation of the meaning of a part being 'inherent' to an aircraft". With respect, this looks a lot like a misunderstanding.

    I agree. It made me look yet again at Wallentin which says (with my comments!):

    17. It is settled case‑law that the meaning and scope of terms for which Community law provides no definition must be determined by considering their usual meaning in everyday language ....

    Moreover, when those terms appear in a provision which constitutes a derogation from a principle or, more specifically, from Community rules for the protection of consumers, they must be read so that that provision can be interpreted strictly.


    So I read that as saying "extraordinary" means just that - highly unusual, or similar

    18. In this respect, the objectives pursued by Article 5 of Regulation No 261/2004 ... are clear from recitals 1 and 2 in the preamble to the regulation, according to which action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers ....

    A "high level of protection" does not seem consistent with allowing any technical issue to be deemed extraordinary.

    23. ... the circumstances surrounding such an event can be characterised as ‘extraordinary’ ... only if they relate to an event which ... is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin.


    So an airline not being able to predict the problem, etc., is irrelevant if it's the normal exercise of the activity.



    24. In the light of the specific conditions in which carriage by air takes place and the degree of technological sophistication of aircraft, it must be stated that air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise.



    Aeroplanes are very complex and so technical issues are to be expected.
  • David_e wrote: »
    Written before Jez Taylor's further info



    I agree. It made me look yet again at Wallntin which says (with my comments!):

    17. It is settled case‑law that the meaning and scope of terms for which Community law provides no definition must be determined by considering their usual meaning in everyday language ....

    Moreover, when those terms appear in a provision which constitutes a derogation from a principle or, more specifically, from Community rules for the protection of consumers, they must be read so that that provision can be interpreted strictly.

    So I read that as saying "extraordinary" means just that - highly unusual, or similar

    18. In this respect, the objectives pursued by Article 5 of Regulation No 261/2004 ... are clear from recitals 1 and 2 in the preamble to the regulation, according to which action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers ....

    A "high level of protection" does not seem consistent with allowing any technical issue to be deemed extraordinary.

    23. ... the circumstances surrounding such an event can be characterised as ‘extraordinary’ ... only if they relate to an event which ... is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin.


    So an airline not being able to predict the problem, etc., is irrelevant if it's the normal exercise of the activity.



    24. In the light of the specific conditions in which carriage by air takes place and the degree of technological sophistication of aircraft, it must be stated that air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise.



    Aeroplanes are very complex and so technical issues are to be expected.

    David, I just amended my entry so it read a bit clearer. Yes I agree with you and your above interpretation. Any issue around technical issues are going to be more of a gamble which is why the airlines may be more likely to take a gamble on it.
    Its frustrating all the same as I have interpreted Wallentin in exactly the same way as yourself
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