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Court success thread
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Mark2spark wrote: »Well, just to be clear for others yet to embark on the journey, even if *your* case is likely to be stayed, it still MUST be commenced before 6 years are up.
Or two if Dawson is lost (which I think is unlikely, btw).0 -
Forgot to post this but Thomson settled the day before court for full amount a day before court. It was flight TOM2592 from Manchester to Ibiza on the 1st July 2011 delayed by 10 hours.
They originally claimed that the aircraft was damaged by a 3rd party baggage handler, later changed in there defense to fuel surge valva fault0 -
Well done and congratulations - the successes keep on rising.:beer:If you're new. read The FAQ and Vauban's Guide
The alleged Ringleader.........0 -
I recently settled via mediation for VS016 22.06.13 (27 hour delay.)
Not the full amount but sufficient to avoid a day off work and the associated hassle. Perhaps a good route if you cant take time off or may lose earnings, can't travel etc.
Mediation took just over an hour and a decision was reached.
As always don't accept the first offer (or the second!) all in all a relatively easy process.
Thanks to every one who posted and the mods for their input that gave me the confidence to give it a go.0 -
Won case ZB248 LGW/SSH. 3rd party damage. Counsel forgot to turn up but did not really matter as Judge discounted Huzar stay attempt since not related, came down to non proof of damage same as KAB case last year. Did not award for wife as not in claimant box only in Particulars of claim box, no interest as not on original claim. max £90 a day for attendance which he calculated as 2 half days from original adjourment. Awarded taxi fares to/from though. Sent email to airline though and they immediately added my wife's amount and within a week received bank transfer. Many thanks to KAB and Coby plus all main peeps on here for consistent sound advice in general to read and undterstand. Others have to understand that in small claims judges reason differently to each other and each similar case can have a different outcome.0
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Should have inserted date which was 10 Dec 20120
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1. So after what has been quite the saga, I finally won my year-long legal battle with Monarch Airlines, after they effectively threw in the towel. Pull up a virtual chair and a (hopefully less virtual) glass of your poison, and I will talk you through it ...
2. My delay was on the 8th of April 2012 – ZB249 Sharm el Sheikh to Gatwick. When we (my wife, I and our three boys) arrived at the airport, the flight was showing as “cancelled” and, after quite a few hours of chaos, we were given a letter informing us that we would be delayed for 24 hours and bussed to a local hotel. (It wasn’t great – and the room we were given was for two, rather than five!)
Monarch Says No
3. I wrote a letter ofcomplaint on return to the UK and requested compensation under Regulation 261/04. The Nelson/Tui case was still being heard in the European Court, so Monarch refused to process the claim inadvance of that judgement. Once the European Court concluded the case in October, I wrote again. Monarch eventually sent me forms to fill ino n behalf of the family, and then ... that was it. I heard nothing.
4. After three months, I decided that it was clear Monarch were not dealing with this seriously. So I started a claim via “Money Claim OnLine”(MCOL). [This, it subsequently transpired, was a mistake – as strictly speaking all five of us were claimants, and we therefore should have used different forms.] A few days later after starting court action, Monarch finally wrote to decline my claim. They said:"Our records show that prior to take off of the outbound flight, theflight deck crew saw cracks in the right hand side windscreen of the aircraftscheduled to operate your flight. The aircraft returned to the stand whereengineers attended in order to perform the requisite checks. It was ascertainedthat a new windscreen was required and this was transferred from Luton toGatwick via taxi. Engineers from Virgin assisted in the rectification workwhich was carried out in the Virgin hangar. Extra sealant was required and wassourced by Virgin from their hangar in Heathrow. The rectification work tooklonger than first anticipated as the sealant would not set, as a resultpassengers and crew were required to ‘night stop’ in London and the flightdeparted the following day. This had an unfortunate knock on effect to yourflight which resulted in passengers having to stay overnight in Egypt, beforethe aircraft arrived at Sharm El Sheik to operate your flight.
“Windscreens are liable to break without prior indication as they aresubject to extreme temperature changes at high altitude. The necessity tochange a windscreen is rare and as such spare components are stored in the mainstores at Luton.
“Having considered the factual background of thisincident, I am satisfied that this was indeed an extraordinary circumstancethat could not have reasonably been prevented by Monarch. I am unable to agreeto your claim for compensation.”
5. At the same time as starting court action, I also wrote to the CAA. This was a complete and utter waste of time. As the wheels of justice turned slowly, I occasionally called the CAA for an update. Each time it transpired that Monarch had not actually responded to their requests for information so they could investigate my case. So nothing happened. Ever. What kind of regulator is ignored by its industry? Not a very good one, I humbly suggest. Eventually – in autumn – I received the standard impersonal email to say that the CAA had asked Monarch to reconsider their refusal and that they were effectively washing their hands of the matter. I am so pleased that I didn’t wait nine months for that!
Starting the Claim
6. The initial Court process was not too difficult. The particulars of claim in my original MCOL submission were straightforward, and it cost me £80 to start the process (which the defendant pays if you win):
I am claiming compensation for myself,my wife and our three children under Article 7of EC 261/2004, pursuant to the Sturgeon judgment in the ECJ (Case C-402/07of 19 November 2009), which provides for €600 per passenger to be paid in the following circumstances.
These were that Monarch delayed our flight from Sharm el Sheikh to London Gatwick on 08/04/12 and did not return us until 09/04/12, a delay of some 24 hours. Despite writing to Monarch on four occasions since this event, most recently on 27 January with a final noticebefore action, they have declined to respond to my request for compensation.
The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 08/04/2012 to 11/02/2013 on £2,475.00 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.54.”
7. Within a fortnight,M onarch indicated that they would defend the claim in full, and a fortnight later I received their first, short defence. You can see what was in Monarch’s defence here: http://forums.moneysavingexpert.com/showpost.php?p=60010777&postcount=1180.
8. The so-called “AllocationQuestionnaire” followed a few weeks later. This is the document where both sides answer some straightforward questions, in order for the case to be put on the small claims track and (hopefully) transferred to your local court. The convention is that cases should be transferred to a claimant’s local court (if they are individuals suing a corporation). Though I note that the Northampton central court has started to allocate these to particular courts where District Judges are familiar with the law. In my view, it is a real advantage to get an experienced DJ: the most peverse judgements reported on this forum seem to be from judges who are new to the Regulation and haven’t fully digested the law.
9. The Allocation Questionnaire is also the document where you tick the box to agree mediation. Everyone should do this, in my opinion. It doesn’t slow up the process. And it shows a degree of willing. Indeed, some airlines, like Virgin, seem to use this stage of the process to effectively concede the claim (you need to negotiate as bit, though!). But not Monarch. They were hopeless. Though they ticked the box agreeing to mediation, on the day of my scheduled mediation call it transpiredthat their in-house lawyer was not in the office. Neither the mediator nor Monarch’s staff could find her. Five minutes later, the mediator called me to say that Monarch had just informed her that they were “withdrawing”from mediation. It wasn’t the last time they would show contempt for due process.
The First Hearing
10. In July, I received an order from District Judge Stewart at Winchester County Court instructing both parties to deliver to the other and to the Court offices copies of all documents on which they intend to rely, no later than six weeks before the date of the hearing (ie 20 August). Accordingly I submitted my bundle of documents to the Defendant and to the Court on 19 August. By the end of August, however, I had received nothing from Monarch. I wrote to the Court to complain, but the Judge did not spark. I eventually got Monarch’s bundle of documents about two weeks before the hearing.
11. The process of assembling your own bundle represents, I believe, the most time consuming part of the process. You need to construct a legal argument that captures all the key facts, addresses the main points of law, and refutes the defence provided by the airline. I attach here the main document, which contained my case: https://www.dropbox.com/s/fif1qhv7zkd83w6/Particulars%20and%20Argument.pdf
And the list of others documents, to which this document made reference, which comprised my bundle: https://www.dropbox.com/s/ems609zytxof20a/List%20of%20bundle%20documents.pdf
12. I am not a lawyer, so cannot pretend to have any expertise. But this bundle got good feedback from the Judge – he said it would put many a solicitor to shame! – so I think this is the sort of thing you need. The main argument document is key: focus it on what happened and how this relates to the law as is (and not how the airline will misrepresent it).
13. The first time the bundle was used in anger however proved to be a bit of a damp squib. The hearing was scheduled for the 1st October. Monarch’s bundle – and in particular the two witness statements provided by the Operations Manager andSenior Engineer – was full or errors and inconsistencies. Indeed, much of it seemed copied and pasted from other cases, and some of it was simply absurd (including a claim that the replacement windshield had been sent from Luton to Gatwick by taxi and that arrived within thirty minutes of despatch – even though it is a seventy mile trip roundthe M25!). I looked forward, therefore,to discrediting Monarch’s account in Court.
14. In the week or so before the hearing, I wrote to Monarch to ask if they would be providing their witnesses for examination. They told me that they thought this was unlikely, as both were busy men and Winchester was a long way from Luton. I was slightly disappointed, but assumed that I could not compel them to attend.
15. When I arrived at Court, I met Monarch’s barrister – who was a thoroughly decent chap. He confirmed that there were no witnesses, but offered me some further documents that he wanted to rely on in court (including the McDonagh judgement, which he wanted to use to argue that events out of the ordinary were by definition “extraordinary”). We chatted amiably around flight delay issues for thirty minutes or so whilst waiting to go in, and he had some very interesting insights. He also explained that the principal responsibility of the barrister was to the court, and therefore he was not permitted to trip up or confuse a Litigant in Person, and would indeed help to ensure the right points of law were referred to where appropriate. (And to give him his due, he was true to his word – he had a case to argue, but did it fairly and even helped me out with acouple of references which I was struggling to find.)
16. However, the first hearing proved shorter than any of us had expected. The Judge took badly to the non-appearance of Monarch’s witnesses. Monarch should have requested the Court’s permission, he said, if they intended not to produce them. How could he, the Judge, come to a view on whether the technical defect was “extraordinary” if the engineer was not here to explain the background and answer our inevitable questions. If the witnesses were not here, the credibility of the evidence would be adversely affected. He therefore advised Monarch to request an adjournment. I tried to say I was happy to proceed without the witnesses, and didn’t believe I was materially disadvantaged – but the Judge was clear that due process must be followed and so we were sent on our way.
Back to Court for the Second Time
17. The second hearing was scheduled for the 17th December. A few weeks beforehand, Monarch wrote to the Court to request a stay pending the Huzar judgement. I wrote to the Court in turn to say I disagreed – Huzar was not cardinal to my case, which instead relied on Wallentin’s “inherence” point, as well as the “all reasonable measures” test. The Judge wrote a brief response to Monarch to inform them that the hearing was to remain “listed” – in effect refusing to stay the second hearing.
18. I was away on business for much of November and December, and when I got home I found a new bundle ofdocuments. Much of it was the same, but the two witness statements had been substantially rewritten. Many of the assertions in the earlier statements – about how long it had taken to transfer the parts, about how this kind of failure had never happened before, and about how Monarch had attempted to put us on an alternative flight – had all been removed. Indeed, the new statements were so bland they were almost useless. Clearly, the prospect of being interrogated on the veracity of their accounts had concentrated the two witnesses’ minds and they were not (understandably) willing to perjure themselves.
19. For the second hearing, Monarch brought not just another London barrister (different from the first, but equally affable and very impressive), but their in-house paralegal, and their two witnesses. I went over to introduce myself, and had a perfectly pleasant discussion. One of the witnesses, whose statement included the 140 mph taxi nonsense, seemed very nervous – perhaps he thought I was going to haul him over the coals and expose the inaccuracies in his statement. (Of course I was!) Monarch’s barrister did usefully confirm that they were no longer requesting a stay and were as keen to “get this over with”as I was. It was clearly inconvenient to them to produce their witnesses, one of whom confirmed that he had never been asked to appear in court before. This suggests to me that Judges do not regularly require witnesses to appear in person, but perhaps Claimants should try to insist on it – particularly if they have compelling questions that only the witness can address.
20. The second hearing also started badly for Monarch. The Judge appeared vexed that the barrister had changed since the last hearing (which technically was the same hearing, but adjourned part-heard). Apparently it was irregular to swap barristers half way through. The Judge invited their barrister to cross-examine me, but in truth there was little for her to do: she picked up my point about Monarch’s terrible punctuality record and said that I could not be certain of the reasons for all these delays, which I readily conceded I could not. But that was about it really. Then we got on to the witnesses.
21. Before the witnesses began, I asked the Judge for his help with a problem I had. It would seem, I said, that Monarch’s witnesses had provided two statements each. Which was the correct version, I asked, and did this mean that they were now disowning the contents of their first statement? The Judge was clearly unimpressed by this and agreed that the second versions would stand, but he wanted to understand why the witnesses had done this. Both explained, with degrees of credibility, the discrepancies. The super-sonic taxi was, apparently, a “typographical error”, and other assertions were removed because – although the witnesses probably thought they were true – they could find the actual evidence to substantiate them.
22. I have to say that I thought the witnesses were deeply unimpressive. They struggled to answer basic questions about my case. For the engineer, this is how our “exchange”went:
- I pressed the engineer on Monarch’s assertion in para 8 of their defence of 12 March that“cracks in the windscreen can arise without any initial indications, given they are subject to extreme changes in temperature and altitude”? Are extreme temperatures and atmospheric pressures not inherent in the experience of flying an aircraft? He agreed they probably were.
- The engineer said that checks to the windscreen were made every 800 flying hours,and that the last check was on 23 February – about six weeks before the failure. But Monarch have not produced that maintenance report: have he read it, and what did it say about the state of the window before it cracked? He conceded that he had not even seen the report, and therefore couldn’t comment.
- One technical article I had read by a Boeing engineer suggested that cracking of the outerply in flight deck windshields no 1 and no 2 significantly affected schedule reliability – and that windshields have an average life of 8-11 years or 20-30k flight hours. Was this windscreen at the beginning, middle or end of its average service life? The engineer couldn’t give any assessment as to the age of the window.
- Monarch has had a significant punctuality problem with the Gatwick to Sharm route. The CAA’s statistics show that less than 64% of Monarch’s flights departed on time, and that nearly 20% were delayed by an hour or more (compared to 2% of easyJet’s flights). Why was this? How many of Monarch’s delays were caused by technical problems? And how many of those technical problems were caused by Monarch’s own inadequate maintenance regime? None were caused by inadequate maintenance, the engineer said (slightly indignantly). So it is inherent in the operation of an airline, I asked, that aircraft develop technicalfaults regardless of maintenance? The engineer didn’t reply to that one.
- In his signed statement of 11 September, the engineer said that the relevant parts were transferred to Gatwick by taxi, and that they arrived within 30 minutes. The engineer now said this was a “typo” – so how long in fact did the parts take to arrive? He said he didn’t actually know and couldn’t therefore say – so how I was meant to believe the 30 minutes was a “typo” is beyond me!
- 24 hourswas a very substantial delay to fix the aircraft that was scheduled to perform ZB249. Where is the “event print out” document, that would give a clear chronology of what actually happened, and what actions Monarch took in response? The engineer confirmed he had not seen the document, but thought it would exist.
- Why, I asked, did Monarch lack the facilities and spares at Gatwick airport to fixthese problems? Was it not a significanthub of activity (serving 41 destinations)? If Monarch had the facilities and spares on site, would work not have started on the repair significantly earlier? The engineer confirmed that it would.
23. For their operations manager, we covered the following:
- Given the significantly poor punctuality that Monarch has experienced in recent years,what contingency provisions did Monarch make for when one of their aircraft is taken out of service due to technical failure? He talked generally about these, but wasn’t especially compelling.
- In his signed statement of 11 September, the Ops Manager said that once the failure ofthe plane occurred, Monarch attempted to offload myself and the fellow passengers onto a 3rd party carrier, but there was no availability. And that because of this, a decision was taken to overnight the passengers in Sharm and wait for the plane to be fixed. So when exactly was that decision taken? The Ops Manager replied that he didn’t know. I responded that, according to Monarch’s own evidence (an email they submitted as part of their bundle) this decision was taken within 45 minutes of the incident.
- Could the OpsManager explain exactly what efforts Monarch made to find alternative aircraftwithin their fleet or to lease from a third party supplier? With whom did Monarch speak to attempt to procure an aircraft? I had a list of adozen carriers that Monarch had previously used to “wet lease” planes in these circumstances. Did they speak to all these carriers – plus presumably carriers based in Egypt who could have performed this flight on their behalf – before taking the decision to delay passengers return from Egypt by over 24 hours? Did they really do all this within the 45 minutes before a decision to overnight us in Sharm was taken?
- There were additionally nine other flights leaving Sharm that afternoon for the UK which passengers could have been offloaded onto. Did the Ops Manager explore that possibility? He confirmed that it would have been their practise to do so, but could offer no evidence that they had done so on this occasion.
24. Alas, I fear that my interrogation of the witnesses may have been too effective. The Judge noted that Monarch had failed to answer a number of quite significant questions, and this was unfortunate. He therefore advised them that, given the gaps in their testimony, they should consider applying for a further adjournment in order to disclose further documents, including the event print out document,that would answer my points. Alternatively, they might consider settling with the Claimant. So Team Monarch went into a huddle and agreed that they would seek a further adjournment.
25. This was obviously a disappointment, as I had hoped to get this wrapped up before Christmas. But the Judge said that a third hearing would not be necessary. Monarch had until the end of the week to provide the documents and to make a final written submission. I would then be given a further week (until the 30th December) to respond. The Judge would then issue a written judgement on the 6th January. The end was in sight. Or was it?0 -
Third Time Lucky
26. Over the next couple of days, Monarch sent me a couple of documents. One was the notorious “event print out” with the detailed chronology of what happened. The second was irrelevant and added nothing. But that was it. There was nothing on the state of the windscreen or on what efforts they had made to find an alternative plane. Lots of the questions therefore remained hanging. And there was no final submission. So over Christmas I wrote my response, which you can find here: https://www.dropbox.com/s/axmxr0os9sbt1ce/Final Argument.pdf.
The event print out showed, significantly, that Monarch's earlier account of events was substantially misleading. The document proved that, after the incident was reported at 0907, work on repairing the aircraft did not commence until 1319, and that it took some four hours – not thirty minutes – for the spare parts to be transferred from Luton to Gatwick. The event print out also confirmed that extra sealant was required, but that this was determined at 2258 in the evening – almost 14 hours after the incident. As the email from Monarch’s customer services officer clearly shows, the decision to overnight passengers in London and Sharm was taken before 10am – less than an hour after the incident occurred and over an hour before the spare parts were even requested from Luton.
27. When I dropped off my documents at Court however on the 30th, I asked what documents Monarch had submitted. None, came the reply. Not even the “event print out”, which appeared only to have been sent to me. I was furious that, having requested a stay, Monarch appeared to have had no intention of providing the information the judge had demanded. I email Monarch’s legal department who indeed confirmed that “No further documents were in fact submitted.” I therefore emailed the Court:
“Further to my letter of yesterday, please be advised that the Defendant has now written to me to confirm that, despite Judge Stewart's order of 17 December, they do not intend to serve any further documents to the Court. This includes the "event print out" document,which was disclosed to me but not apparently shared with yourselves. As I make reference to this document in my own submission, I attach it for the Court's convenience.
“I am grateful for the equitable manner in which Judge Stewart has managed proceedings. I should however like to register my concern and frustration at the behaviour of the Defendant. At our hearing on the 17th December, the Defendant requested an adjournment precisely in order to provide further information to the Court (as their witnesses were unable to answer basic questions about the issues under examination). It is nowclear that the Defendant had no intention of providing this additional evidence.
“Unfortunately, this was the second occasion on which the Defendant had sought an adjournment. Our first hearing on 1 October 2013 was adjourned at the Defendant's request as they had failed to make available their witnesses for questioning, or to indicate to the Court that they would not be doing so.
"In addition, the Defendant has on more than one occasion disclosed evidence to myself late, as well as substantially revising their earlier witness statements in advance of the second hearing. Given the other irregularities on which the Judge has already spoken directly, I regret that, as a Litigant in Person, I have found the Defendant's conduct in this process difficult and unreasonable.”
28. To some extent, I assumed that Monarch had shot themselves in the foot. They had been given three opportunities to make their case, when other Judges might have been less patient. But Monarch seemed determined never to miss an opportunity to miss an opportunity. So I awaited judgement with interest and some optimism. Unfortunately,there was a further twist in this saga yet.
29. On 6 January I received, not a judgement, but a further order to attend a “Directions Hearing”. This seemed quite unusual, given that all the evidence had been heard. So I had no idea what to expect. I arrived at Court this morning, and clocked in with the usher (I was becoming a pro at this by now!). But where was Monarch? They were nowhere to be found. The Court PA system broadcast in vain for Monarch Airline’s representative to identify themselves, but answer came there none. Had Monarch really bottled it, at the eleventh hour, and after having spent a fortune on London barristers defending this action tooth and nail? I was called into Court.
30. The judge apologised for having brought me in for a third time. Having read my email complaining about Monarch’s failure to adhere to his instructions, he had checked to see what he had received from the defendant. They had sent him nothing. Further, they had written to the Court last week to inform him that they were not able to attend the “preliminary hearing” today (it was not a preliminary hearing, of course) as they were based in Luton and “Staines is a long distance away”. (We are in Winchester, remember.) Clearly, Monarch’s legal department had either confused various cases –or just copied and pasted a letter.
31. The Defendant had left him with no option, the Judge said. They had failed to follow the directions of the Court and explain why they were not present today. This was a peculiar avenue that Monarch had taken the Court down, but there was only one possible resolution now: their defence would be struck out and the Court would find in favour of the claimant. Monarch would be given 14 days to pay the full 3000 Euros, plus interest at 8%, court fees, and £150 for my general expenses in attending court. (I appreciate that I might have asked for £270 for three hearings, but as the interest was worth over £350 I didn’t want to push my luck.) The Judge commended me for my bundle and the manner in which I had addressed the defendant’s points, and regretted the behaviour of Monarch: but, as he said, “Those who live by the sword must die by the sword”, and Monarch had no one to blame but themselves.
Here is the judgement: https://www.dropbox.com/s/407bxiequucdzzr/1802p367app.doc?dl=0
33. In some respects, it is an anti-climatic ending. I don’t think it is unfair to say that Monarch bottled it in the end. Which doesn’t strike me as either brave or showing any great integrity. But this is a pattern of behaviour that has run throughout their handling of this case – like lettering through the stick of a Blackpool rock. Their defence was never strong, and it was absurd that they resisted payment – and wasted so much of their money on expensive lawyers. Perhaps they will try to appeal– though I struggle to see on what basis they could do this. I wonder what their Board would make of this performance? Maybe I should write?
34. Anyhow, it is nice to earn my victory spurs and join the MSE Pantheon of those who’ve had the courage to face down airlines' disgraceful tactics and work to secure what is owed to them in law. So well done to all those who refuse to give up, and especially to those who hang around this forum and offer so much help to others. I think that, in the next few months, the MSE Pantheon may get even more crowded. Let’s have a collective drink to that! :beer:1 -
Absolutely delighted for you Vauban, Many congratulations. I have to say though, that for my money, the result was never in doubt.
Well done again.0
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