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    • araeho
    • By araeho 6th Sep 17, 8:31 AM
    • 4 Posts
    • 0 Thanks
    araeho
    Hi Tyzap,


    Thanks very much for the reply much appreciated and glad I'm on the right lines. I totally agree with you that it's got to be down to Operational Decision making rather than anything extraordinary and that will be the focus of my response.


    I agree that it wouldn't be reasonable for an airline to know when a passenger would need to be off-loaded but as part of normal operations they should expect some offloads for a variety of reasons, not just fear of flying and plan their schedules accordingly.


    I cant believe a court would uphold a 1 hour delay as being extraordinary. If they do then it's a bad show for the industry.


    I'm going to try and source some evidence of judgements where courts have said that airlines must build in sufficient time for such delays which although cant be predicted on a flight by flight basis, can be predicted (and expected) in the normal running of an airline service.


    Will keep you all posted with further developments.


    Thanks again.


    Andrew.
    • Tyzap
    • By Tyzap 6th Sep 17, 8:55 AM
    • 1,063 Posts
    • 530 Thanks
    Tyzap
    Hi Tyzap,

    I'm going to try and source some evidence of judgements where courts have said that airlines must build in sufficient time for such delays which although cant be predicted on a flight by flight basis, can be predicted (and expected) in the normal running of an airline service.

    Will keep you all posted with further developments.

    Thanks again.

    Andrew.
    Originally posted by araeho
    Hi Andrew,

    This is from the Better Enforcement document, which is a COMMISSION NOTICE
    Interpretative Guidelines on Regulation (EC) No 261/2004

    e. Reasonable measures an air carrier can be expected to take in extraordinary circumstances

    Whenever extraordinary circumstances arise an air carrier must, in order to be released from the obligation to pay compensation, show that it could not avoid them even if it had taken all reasonable measures to this effect.
    Furthermore, the Court52 has found that under Article 5(3) of the Regulation, an air carrier can be required to organise its resources in good time so that it is possible to operate a programmed flight once the extraordinary circumstances have ceased, that is to say, during a certain period following the scheduled departure time. In particular, the air carrier should provide for a certain reserve time to allow it, if possible, to operate the flight in its entirety once the extraordinary circumstances have come to an end. Such reserve time is assessed on a case-by-case basis.

    Good luck.
    Please read Vaubans superb guide.
    • Vauban
    • By Vauban 6th Sep 17, 10:13 AM
    • 4,691 Posts
    • 2,079 Thanks
    Vauban
    Hi Tyzap,


    Thanks very much for the reply much appreciated and glad I'm on the right lines. I totally agree with you that it's got to be down to Operational Decision making rather than anything extraordinary and that will be the focus of my response.


    I agree that it wouldn't be reasonable for an airline to know when a passenger would need to be off-loaded but as part of normal operations they should expect some offloads for a variety of reasons, not just fear of flying and plan their schedules accordingly.


    I cant believe a court would uphold a 1 hour delay as being extraordinary. If they do then it's a bad show for the industry.


    I'm going to try and source some evidence of judgements where courts have said that airlines must build in sufficient time for such delays which although cant be predicted on a flight by flight basis, can be predicted (and expected) in the normal running of an airline service.


    Will keep you all posted with further developments.


    Thanks again.


    Andrew.
    Originally posted by araeho
    The judgement you're looking for is Eglitis v Air Baltic:

    https://rescommunis.wordpress.com/2011/07/12/the-european-court-of-justice-issues-decision-today-on-extraordinary-circumstances-for-airline-delays/
    • DrLisa
    • By DrLisa 7th Sep 17, 8:04 PM
    • 1 Posts
    • 0 Thanks
    DrLisa
    Compensation for 5h+ delay?
    Hi All, I was due to take a flight from Bristol to Edinburgh at 07:10 departure to arrive at 8:20. The flight departed at 12:40 but because it was so delayed I had missed the start time of meeting I was going to Edinburgh for, thus made the decision not to board. I left the airport just as the gate opened for boarding (~12pm) having been there since 6am. Easyjet provided a £6 refreshment voucher while at the airport.

    I submitted a claim for compensation to Easyjet as I believe I'm entitled to €250 because the flight was delayed over 3h. I have received an email from Easyjet refusing compensation because I was not on the flight when it finally departed. Because it's over 5h delayed, my understanding is that I'm entitled to €250 compensation, a refund on the flight (outbound and return) and associated costs (parking, car hire etc).

    Does anyone know if this is the case or am I incorrect? Many thanks!
    • Tyzap
    • By Tyzap 7th Sep 17, 9:41 PM
    • 1,063 Posts
    • 530 Thanks
    Tyzap
    Does anyone know if this is the case or am I incorrect? Many thanks!
    Originally posted by DrLisa
    Hi DrLisa,

    Your diagnosis is correct, as you can see from the following extracts from the EC261 regulation.

    Had EJ followed the regulations correctly they would have issued each passenger with a written explanation of the regs and the option on offer at that time. They don't usually like to make things too obvious tho!

    CEDR may be your best route if they prove to be intransigent.

    I believe that these are the relevant regs applying to your situation...


    Article 6
    Delay
    1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:
    (a) for two hours or more in the case of flights of 1 500 kilo- metres or less; or
    (b) for three hours or more in the case of all intra-Community flights of more than 1 500 kilometres and of all other flights between 1 500 and 3 500 kilometres; or
    (c) for four hours or more in the case of all flights not falling under (a) or (b),
    passengers shall be offered by the operating air carrier:
    (i) the assistance specified in Article 9(1)(a) and 9(2); and
    (ii) when the reasonably expected time of departure is at least the day after the time of departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and
    (iii) when the delay is at least five hours, the assistance speci- fied in Article 8(1)(a).

    Article 8
    Right to reimbursement or re-routing
    1. Where reference is made to this Article, passengers shall be offered the choice between:
    (a) — reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger's original travel plan, together with, when relevant,
    — a return flight to the first point of departure, at the earliest opportunity;


    Article 7
    Right to compensation
    1. Where reference is made to this Article, passengers shall receive compensation amounting to:
    (a) EUR 250 for all flights of 1 500 kilometres or less;
    (b) EUR 400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres;
    (c) EUR 600 for all flights not falling under (a) or (b).
    In determining the distance, the basis shall be the last destina- tion at which the denial of boarding or cancellation will delay the passenger's arrival after the scheduled time.
    2. When passengers are offered re-routing to their final destination on an alternative flight pursuant to Article 8, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked
    (a) by two hours, in respect of all flights of 1 500 kilometres or less; or
    (b) by three hours, in respect of all intra-Community flights of more than 1500 kilometres and for all other flights between 1 500 and 3 500 kilometres; or
    (c) by four hours, in respect of all flights not falling under (a) or (b),
    the operating air carrier may reduce the compensation provided for in paragraph 1 by 50 %.
    3. The compensation referred to in paragraph 1 shall be paid in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.

    Good luck.
    Last edited by Tyzap; 08-09-2017 at 11:22 PM.
    Please read Vaubans superb guide.
    • Vauban
    • By Vauban 7th Sep 17, 10:44 PM
    • 4,691 Posts
    • 2,079 Thanks
    Vauban
    I'm not sure that there's anything in the Regulation that offers clarity on this point (i.e. if your flight is delayed, but you choose not to take it, whether you're entitled to compensation - beyond a refund (after 5 hours) and expenses).

    I think that the OP is NOT entitled, however unfair this sounds. This is because of the wording of the Sturgeon judgement, which established that delays could be treated the same as cancellations under the Regs. However, Sturgeon gives the following criteria for a qualifying delay:

    "... passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier."

    In other words, if the passenger doesn't arrive at the destination on the delayed flight, then they don't get the protection of Article VIII.
    • Tyzap
    • By Tyzap 8th Sep 17, 1:29 AM
    • 1,063 Posts
    • 530 Thanks
    Tyzap
    I'm not sure that there's anything in the Regulation that offers clarity on this point (i.e. if your flight is delayed, but you choose not to take it, whether you're entitled to compensation - beyond a refund (after 5 hours) and expenses).

    I think that the OP is NOT entitled, however unfair this sounds. This is because of the wording of the Sturgeon judgement, which established that delays could be treated the same as cancellations under the Regs. However, Sturgeon gives the following criteria for a qualifying delay:

    "... passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier."

    In other words, if the passenger doesn't arrive at the destination on the delayed flight, then they don't get the protection of Article VIII.
    Originally posted by Vauban
    It won't be the first or last time that these regs have caused confusion due to their poor wording and lack of clarity. Although in many instances this can be attributed to the fact that an example of each and every situation would be impossible to list.

    I'm of the opinion that the op is due compensation for the following reasons.

    Under article 3 Scope, it is stipulated that for the passenger to be in scope they must...

    (a) have a confirmed reservation on the flight concerned and, except in the case of cancellation referred to in Article 5, present themselves for check-in,

    It does not specify the need to have flown, which would surely otherwise be a stated prerequisite to qualify.

    Under article 6 Delay, it states
    (iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a).

    8(1)(a) includes the following wording...

    together with, when relevant,
    — a return flight to the first point of departure, at the earliest opportunity;

    That wording would not be required if, as you suggest, a flight would have be taken to qualify for compensation.

    It would be against the spirit of the regs to allow a passenger to be delayed at departure for over 5 hours and not receive compensation when the trip is no longer required.

    Without any specific case law to guide us that I know of, this is a difficult question.

    I may be 'splitting hairs' here so I would suggest that the op should still refer to CEDR or even MCOL for an adjudication by someone more qualified to answer the question than myself.
    Please read Vaubans superb guide.
    • Vauban
    • By Vauban 8th Sep 17, 7:20 AM
    • 4,691 Posts
    • 2,079 Thanks
    Vauban
    I agree with all this - these are the arguments I'd use too. Particularly the point about natural justice and treating all passengers fairly and equitably (which was the main legal justification in the Sturgeon judgement for the ECJ deciding that delays of three hours should attract the same protections as cancellations). Clearly, two people who've waited at an airport for over five hours have suffered the same delay and inconvenience, regardless if one of them subsequently chooses not to fly.

    However, the case law gives a specific definition of what delay means in this context: and it's the passenger arriving late, not the plane or the flight. And that gives a reasonable legal argument to the airline to resist compensation. The airline may win, they may not. But the OP should know their case is neither straightforward nor slam-dunk - as most others reported here are.

    I think your idea of going to an ADR is good. Or the OP could explore with Bott whether they'd take this on in principle - Bott will have a view of how most judges are interpreting the Regulation in this scenario.
    • Tyzap
    • By Tyzap 8th Sep 17, 8:14 AM
    • 1,063 Posts
    • 530 Thanks
    Tyzap
    Yes, I agree, Bott & Co would be the natural place to take this complaint. However, I'm not sure that there is the commercial volume for them to justify the initial expense if it were to be contested, but maybe.

    It's the first time I can recall this question arising on these pages, so not a common complaint.
    Please read Vaubans superb guide.
    • audere
    • By audere 8th Sep 17, 4:22 PM
    • 4 Posts
    • 0 Thanks
    audere
    EasyJet dubious rationale for declining delay compennsation
    Hi all,
    We were delayed on a recent EasyJet flight to Santorini. The reason EasyJet denied compensation was that since technical issues were at fault, this constitutes an "extraordinary circumstance". But they WOULD have paid if the delay was caused by a technical fault.

    So technical issues are outside their control but technical faults are not. This is, to my mind, a pretty shoddy excuse. Any advice/guidance much appreciated.

    I'm copying the full excerpt below.

    regards,
    audere

    "Thank you for your EU261 compensation claim which we received on August 23th 2017.
    We’ve reviewed your claim and we can confirm that your flight from London Gatwick (LGW) to Santorini (JTR) was delayed by 2 hours and 22minutes due to technical issues.
    Compensation is only payable when the delay is within our control, a technical fault with an aircraft would be an example.
    When delays are not within our control they’re classified under EU law as ‘extraordinary circumstances’. An example of this would be air traffic control strikes or bad weather.
    As your flight delay was caused by technical issues, this is an extraordinary circumstance, so unfortunately you are not eligible for compensation under article 7 of EU261/2004."
    • Caz3121
    • By Caz3121 8th Sep 17, 4:44 PM
    • 10,810 Posts
    • 7,043 Thanks
    Caz3121
    "Thank you for your EU261 compensation claim which we received on August 23th 2017.
    We’ve reviewed your claim and we can confirm that your flight from London Gatwick (LGW) to Santorini (JTR) was delayed by 2 hours and 22minutes due to technical issues.
    Compensation is only payable when the delay is within our control, a technical fault with an aircraft would be an example.
    When delays are not within our control they’re classified under EU law as ‘extraordinary circumstances’. An example of this would be air traffic control strikes or bad weather.
    As your flight delay was caused by technical issues, this is an extraordinary circumstance, so unfortunately you are not eligible for compensation under article 7 of EU261/2004."
    Originally posted by audere
    seems a jumbled response (accurate comments followed by the final sentence being incorrect) but if their comment on the delay duration is correct then it below the 3 hours required for compensation (which is what their final sentence should have stated instead)
    • JPears
    • By JPears 8th Sep 17, 5:21 PM
    • 3,161 Posts
    • 885 Thanks
    JPears
    Hi all,
    We were delayed on a recent EasyJet flight to Santorini. The reason EasyJet denied compensation was that since technical issues were at fault, this constitutes an "extraordinary circumstance". But they WOULD have paid if the delay was caused by a technical fault.

    So technical issues are outside their control but technical faults are not. This is, to my mind, a pretty shoddy excuse. Any advice/guidance much appreciated.

    I'm copying the full excerpt below.

    regards,
    audere

    "Thank you for your EU261 compensation claim which we received on August 23th 2017.
    We’ve reviewed your claim and we can confirm that your flight from London Gatwick (LGW) to Santorini (JTR) was delayed by 2 hours and 22minutes due to technical issues.
    Compensation is only payable when the delay is within our control, a technical fault with an aircraft would be an example.
    When delays are not within our control they’re classified under EU law as ‘extraordinary circumstances’. An example of this would be air traffic control strikes or bad weather.
    As your flight delay was caused by technical issues, this is an extraordinary circumstance, so unfortunately you are not eligible for compensation under article 7 of EU261/2004."
    Originally posted by audere
    Was your flight delayed more than 3 hours? That's scheduled arrival and actual arrival time, doors open? Not departure times.
    If you're new. read The FAQ and Vauban's Guide

    The alleged Ringleader.........
    • venom6868
    • By venom6868 10th Sep 17, 10:53 AM
    • 7 Posts
    • 0 Thanks
    venom6868
    Easyjet rejected claim - overbooked flight
    Hello I really need some assistance with an issue I am having with easyjet.

    At the end of July my Wife and I planned a last minute trip to Portugal from Gatwick with easyjet, my wife is expecting our first child so this was an important trip for us and she was was quite heavily pregnant at the time.

    Upon arriving at gatwick we were told the flight was overbooked and we did not have SEATS!!! we were told to go to the gate and wait to see if nobody showed for their flights, a terrible experience, we were made to feel like it was our fault this had happened!

    To cut the story short after returning to check in I was told to wait in the que for customer services 3 hours of queuing no offer of a seat for my wife, I was told there were no flights available for 5 days, from any airport in England or Scotland with easyjet and I was on my own. I was told I could pay for my own flights with another airline and easyjet would refund the costs as long as I kept the invoices.

    I spoke to a travel agent at Gatwick and they advised of a flight from Heathrow leaving in 3 hours with a 4 hour stop off in cork total journey time of some 8 hours, a lot more than the original planned 2 hours. this would be at a cost of £600 each.

    Not wanting to miss out on the holiday, and my wife being adamant she wanted to go as our lives are about to change forever we bought the tickets, I checked all comparison websites for flight are there were none available for at least 5 days.

    We got a cab to LHR from LGW, paid for flights, bought food during our wait, and paid for new transfers all of which I claimed back from easyjet on my return.



    Easyjet initially said they could not find my booking, I emailed them the information they requested and after a month they have responded stating they will pay the expenses but not the flight;


    "Further to our initial reply we can again confirm that you are not entitled to the reimbursement of any expenses you have claimed under EU Regulation 261/2004.

    Please see a breakdown of your claim below and the reasons for non-payment.

    1) Alternate Carrier to the Destination: £1,200 (Flights available within 48 hours)
    "



    They have stated they will pay me the expenses I incurred, but not the flights because there was an alternative flight within 48 hours.

    This is not what I was told at "customer Services" at LGW, I was offered a flight after my return date 5 days later, nothing else at all. nothing in writing, I was told all the notes had been put in the system.

    I am so mad that this can happen.

    Please can someone give some advice on how to progress this, I am considering the Small Claims route as I have had enough of this faffing around.
    • Justice13075
    • By Justice13075 10th Sep 17, 11:16 AM
    • 996 Posts
    • 423 Thanks
    Justice13075
    Please re-post on the Easyjet thread
    • JPears
    • By JPears 10th Sep 17, 11:50 AM
    • 3,161 Posts
    • 885 Thanks
    JPears
    As I asked you to on the other forum board. Posting your personal thread makes it very difficult to help people.
    Also download Vauban's superb guide. Your answers will found there.
    And read EJ thread, perhaps latest 10 pages. You will see that EJ are quite frankly one of the worst offenders for misinforming, some would say lying, to customers.
    If you're new. read The FAQ and Vauban's Guide

    The alleged Ringleader.........
    • venom6868
    • By venom6868 10th Sep 17, 12:35 PM
    • 7 Posts
    • 0 Thanks
    venom6868
    Easyjet rejected claim - overbooked flight
    Hello I really need some assistance with an issue I am having with easyjet.

    At the end of July my Wife and I planned a last minute trip to Portugal from Gatwick with easyjet, my wife is expecting our first child so this was an important trip for us and she was was quite heavily pregnant at the time.

    Upon arriving at gatwick we were told the flight was overbooked and we did not have SEATS!!! we were told to go to the gate and wait to see if nobody showed for their flights, a terrible experience, we were made to feel like it was our fault this had happened!

    To cut the story short after returning to check in I was told to wait in the que for customer services 3 hours of queuing no offer of a seat for my wife, I was told there were no flights available for 5 days, from any airport in England or Scotland with easyjet and I was on my own. I was told I could pay for my own flights with another airline and easyjet would refund the costs as long as I kept the invoices.

    I spoke to a travel agent at Gatwick and they advised of a flight from Heathrow leaving in 3 hours with a 4 hour stop off in cork total journey time of some 8 hours, a lot more than the original planned 2 hours. this would be at a cost of £600 each.

    Not wanting to miss out on the holiday, and my wife being adamant she wanted to go as our lives are about to change forever we bought the tickets, I checked all comparison websites for flight are there were none available for at least 5 days.

    We got a cab to LHR from LGW, paid for flights, bought food during our wait, and paid for new transfers all of which I claimed back from easyjet on my return.



    Easyjet initially said they could not find my booking, I emailed them the information they requested and after a month they have responded stating they will pay the expenses but not the flight;


    "Further to our initial reply we can again confirm that you are not entitled to the reimbursement of any expenses you have claimed under EU Regulation 261/2004.

    Please see a breakdown of your claim below and the reasons for non-payment.

    1) Alternate Carrier to the Destination: £1,200 (Flights available within 48 hours)
    "



    They have stated they will pay me the expenses I incurred, but not the flights because there was an alternative flight within 48 hours.

    They have also stated they will initiate a refund of the flight booked and not traveled with them around £350

    This is not what I was told at "customer Services" at LGW, I was offered a flight after my return date 5 days later, nothing else at all. nothing in writing, I was told all the notes had been put in the system.

    I am so mad that this can happen.

    Please can someone give some advice on how to progress this, I am considering the Small Claims route as I have had enough of this faffing around.
    Last edited by venom6868; 10-09-2017 at 12:37 PM.
    • venom6868
    • By venom6868 10th Sep 17, 12:41 PM
    • 7 Posts
    • 0 Thanks
    venom6868
    As I asked you to on the other forum board. Posting your personal thread makes it very difficult to help people.
    Also download Vauban's superb guide. Your answers will found there.
    And read EJ thread, perhaps latest 10 pages. You will see that EJ are quite frankly one of the worst offenders for misinforming, some would say lying, to customers.
    Originally posted by JPears
    Thank you for the information, can i delete this thread?
    • Tyzap
    • By Tyzap 10th Sep 17, 6:31 PM
    • 1,063 Posts
    • 530 Thanks
    Tyzap
    Hi Venom6868,

    You are due all your costs back due to the IDB (involuntary denied boarding).

    Please Google and then download 'Vaubans Guide' for lots of info and some options.

    If they knew that your wife was heavily pregnant they should have given you some priority but, whether she was or not, they should have asked for volunteers before denying you boarding.

    EJ have attempted to break just about every rule in the book so far and it's typical of how they have been treating their customers this summer.

    Whatever happens with your claim, which you will get help with here, you should complain to the CAA about the way you have been treated and how EJ have completely flouted the law.

    Have a read up on CEDR who are the ADR provider contracted by EJ as that will be your best way forwards.

    Good luck.
    Last edited by Tyzap; 10-09-2017 at 7:15 PM.
    Please read Vaubans superb guide.
    • little_alien
    • By little_alien 12th Sep 17, 11:35 AM
    • 12 Posts
    • 0 Thanks
    little_alien
    Sneaky are easyjet...

    we took off over 3 hours late but they gunned it all the way so we landed 15 minutes early than estimated Thus Keeping it to only 2:51 late on landing....

    what annoys me is we still lost a whole evening of our short holiday.
    • Justice13075
    • By Justice13075 12th Sep 17, 2:46 PM
    • 996 Posts
    • 423 Thanks
    Justice13075
    It is not the time you land but the time the doors are opened.
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