Monarch delays & Compensations. Listed flights denied in O.P.

Yorkie_Red

JPears wrote: »

Yorkie,
myself and the other veterans would be only too pleased to shred Monarch's defense. Post here or PM us.
If the court has given an "Order" that the case be transferred to a different court you can appeal this, within 7 days of the order.
Will you need to question the staff? Are they witnesses or experts? Presumably you have their written statements? If you don't need to question them, they don't need to be present and therefore no need to move to Luton.

Hi JP,

Yes you’re right, the letter says that I have 7 days from the date this was served to appeal this hence my letters to the courts straightaway. Although the order was dated 31st July, I didn’t actually receive it until the 8th August!

Your point about the need to question the staff is exactly the point I made in writing to the courts. As Monarch didn’t copy me into their reply to Liverpool I have no idea of which staff they intend to call but I can see no reason why I would want to question their statements.

Here are the relevant points from Monarch’s defence for your perusal, I have my own thoughts on how to rebut this but I would welcome anyone else’s comments:-

5) In regard to Flight 1, the Defendant denies that it is liable to the Claimants as alleged or at all and intends to rely upon the defence of extraordinary circumstances under Regulation 261/2004.

6) The Defendant submits that the aircraft scheduled to operate the Claimants’ flight, aircraft G-OZBE, was discovered to be suffering with a technical fault on the 12th September 2010 immediately prior to departure of a previous flight rotation. In particular, it became apparent that failure of the Stage 1 High Pressure Turbine Blade Outer Air Seal (“BOAS”) had led to turbine blade damage and there was subsequent evidence of metal fragments observed in the engine exhaust. The Defendant submits that the high pressure turbine blades also appeared to have suffered impact damage at the tips. Clearly the aircraft could not safely operate in this condition therefore the aircraft was declared unserviceable requiring rectification by way of an engine change.

7) The Defendant submits that the HPT Boas is not a component that is disturbed during normal line or base maintenance conducted by the Defendant. The Defendant submits, however, that during Engine Shop Visits (ESV) conducted by the Engine Manufacturer or an external third party the engine is subject to inspections and/or overhauls. For the avoidance of doubt, as the HPT Boas is not subject to maintenance by the airline nor expected to fail during operation between each ESV conducted by the manufacturer the Defendant submits that the failure of the HPT Boas was completely beyond the control of the Defendant and was, in fact, a hidden manufacturing defect.
8) Furthermore, the Defendant submits that the engine manufacturer, IAE, were aware of previous failure reports from other operators. The Defendant submits that in addition to the Manufacturer’s Aircraft Maintenance Plan IAE have also issued a Service Bulletin (“SB”) to all carriers containing revised inspection criteria for inspection of the component. Furthermore, subsequent to the Claimants’ flight an Airworthiness Directive (“AD”) was released making the SB mandatory. The Defendant submits that the awareness of IAE of failures of this type and the subsequent issuing of an AD confirms that the cause of the Claimants’ flight delay was completely beyond the control of the Defendant and was, in fact, a hidden manufacturing defect.

9) The Defendant submits that as the fault was caused by a hidden manufacturing defect it is considered an unpredictable and unexpected event which is deemed as extraordinary in accordance with point 18 of the Guidance on Extraordinary Circumstances from the National Enforcement Bodies across Europe published by the European Commission and the amended version released by the CAA in April 2015.

10) The Defendant submits that it has a full defence to the Claimants’ claim under Article 5 (3) of Regulation261/2004 which states ‘an operating carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation (delay) is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.’

11) The Defendant intends to rely upon the decision in Huzar ( [2014] EWCA Civ 791 Jet2.com Limited v.Ronald Huzar) where the Court of Appeal upheld HHJ Platts’ reasoning that ‘it cannot be ruled out that technical problems are covered by those exceptional circumstances to the extent that they stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. That would be the case, for example, in the situation where it was revealed by the manufacturer of the aircraft… or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety.’ The Defendant submits that the fault did not occur as a result of a failure to maintain the aircraft. On the contrary, the awareness of IAE regarding issues with the component concerned confirms that this is a hidden manufacturing defect supported by a Service Bulletin and Airworthiness Directive.Accordingly, this fault is clearly external to the Defendant. The Defendant submits therefore that the Claimants’ flight delay was caused by a manufacturing defect, such a fault is not inherent in the normal exercise of an air carrier and is in fact extraordinary and was a defect that could have an impinged on flight safety.

12) Furthermore the Defendants ubmits that it satisfies the test of using all reasonable measures to avoid the delay concerned, as set out in Wallentin (C-549/07Wallentin-Hermann v. Alitalia). In particular ‘even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would not have been able… to prevent the extraordinary circumstances with which it was confronted’, from leading to the delay. The Defendant submits that it is a smaller airline and had only 30 aircraft within its fleet at the time and therefore did not have spare idle aircraft to cover any disruption to its programme when an aircraft was unexpectedly removed. The Defendant submits that in order to minimise the Claimants’ flight delay its ub-chartered 2 alternative aircraft from a third party carrier on the market, namely Titan, with the required passenger capacity to operate the Claimants’ flight. For the avoidance of doubt, the Defendant sub-chartered both aircraftat its sole expense.

13) The Defendant submits that by sub-chartering 2 alternative aircraft from a third party carrier at its sole expense it deployed all its resources and financial means at its disposal to try and avoid and at best minimise the said delay.

14) The Defendant further intends to rely upon the decision of Eglitis v. Latvijas Republikasministrija at para 35 where the CJEU held that ‘the Regulation cannot result in airlines being led to make intolerable sacrifices.’

15) In addition to the case law, the Defendant intends to rely upon the Guidance on Extraordinary Circumstances from the National Enforcement Bodies across Europe published bythe European Commission.

Tyzap

Yorkie_Red wrote: »

You’ve all been so helpful that I feel bad for asking this but if anyone wants to look at and maybe even give me their thoughts on Monarch’s defence, please drop me a message.

HI Yorkie_Red,

Their defence is very weak and they will be wasting money on solicitors if they do attempt to put up a legal case.

They clearly do not understand what an EC is and have twisted and misconstrued what the judge said in the Huzar case.

You have a valid claim so I would follow Vaubans advice, found in his great guide, and issue an NBA asap. In the guide you will also find links to Huzar judgements, have a read and things should become a little clearer

With all the great help and advice available on this thread it's well worth having a go yourself.

Good luck.

JPears

Erm Tyzap - you need another glass of wine - yorkie has already gone way past NBA - this is the defence statement.
Yorkie - as Tyzap has said, the defence is very weak. Fluff. Turbine damage is an inherent part of an airline's activity. End of. It clearly ISN'T a hidden manufacturing defect, since they knew about it!

JPears

What do the witness/experts' statement(s) say?

Mark2spark

Yorkie, you have my sympathies, you can see why a lot of people throw the towel in.

Point 7 is ridiculous, it's like saying if something on a car fails between MOT tests it's a manufacturing defect.

I think I'd focus on the point that the damage was discovered on a previous rotation, therefore it's not something that affected *your* flight, - the Reg is clear on this - and although they claim to have deployed a Plan B, it wasn't in place to ensure compliance with the Regulation, almost like it was an afterthought.

I mean I'd challenge all the points, but emphasise on that one.

Mark2spark

Well also point 6, if they are claiming impact damage, then it's not a manufacturing defect, it's an external source that has caused it, (an impact) which is inherent in the running of an airline.
Make sure that you get any witness statements before the court date, even if it means that the court, and not Monarch, send you copies.

Bircho

Yorkie_Red wrote: »

I’ve been out of the loop for quite a while on this forum and there are so many interesting posts to catch up on (many of which mirror my own experiences); thanks all.

To update on my own experience Monarch’s defence of the 2 flights they denied me compensation for was duly filed to the courts. It will come as no surprise to many on here to learn that their defence relies heavily on a “hidden manufacturing defect”. Their defence document concluded with the fact that they admit liability for the other flight (this despite their initial response to my case being that they intended to submit a full defence rather thana partial defence).

Monarch were adamant that the case should be held at Luton so they can call their staff at the hearing and although I requested my local court, the CCBC referred the case to Liverpool. I was happy with this as it is a relatively local court & in addition it is a centre of excellence for flight delay claims. The court wrote to ask that Monarch submit a list of any other cases covering the flights involved in my claim and also details of which witnesses they intended to have at the hearing. Interestingly this reply is the only one that Monarch have not copied me into.

I recently returned from a lovely holiday (thankfully delay free) to find a letter from Monarch advising that they no longer intended to defend the case together with a proposed settlement. I was pleased to read this but at the same time could see that the settlement had been incorrectly calculated. Before I got the chance to point this out I received a second letter advising that they’d made a mistake and only wanted to settle for one flight, the other they will still defend in court; confusing to say the least!

To bring us up to date I received a letter on Friday advising me that Liverpool have caved into Monarch and transferred my case to Luton County Court. I have sent a letter to both Liverpool & Luton expressing my dismay that this has been allowed to happen. The likelihood of me getting the required time off for a hearing in Luton is negligible so I am extremely unhappy at this turn of events.

You’ve all been so helpful that I feel bad for asking this but if anyone wants to look at and maybe even give me their thoughts on Monarch’s defence, please drop me a message.

Very interesting because that is exactly what happened to me. They failed to copy me in on the letter listing other cases. I wrote to them and asked them for this. They wrote back apologising and gave me two cases, one in Luton, the other in Manchester. However, when I checked with Manchester they had no record of the case but Luton informed me they had both been held there.

Also their letter, which was mid July, stated they were still waiting to hear the outcomes of the two cases. The court confirmed to me that Judgment had been passed on 13 May and issued to Monarch on 21 May. It was posted on flight delays on 22 May.

When I asked Monarch why they had tried to mislead both the court and I they said it was human error and that at the time they had not had final details from court (?).

Interesting as well that other than fault details, the wording in their defence is identical to mine. This has obvously failed them twice in Luton but they are fancying a third go.

batman44

Yorkie_Red wrote: »

Hi JP,

Yes you’re right, the letter says that I have 7 days from the date this was served to appeal this hence my letters to the courts straightaway. Although the order was dated 31st July, I didn’t actually receive it until the 8th August!

Your point about the need to question the staff is exactly the point I made in writing to the courts. As Monarch didn’t copy me into their reply to Liverpool I have no idea of which staff they intend to call but I can see no reason why I would want to question their statements.

Here are the relevant points from Monarch’s defence for your perusal, I have my own thoughts on how to rebut this but I would welcome anyone else’s comments:-

5) In regard to Flight 1, the Defendant denies that it is liable to the Claimants as alleged or at all and intends to rely upon the defence of extraordinary circumstances under Regulation 261/2004.

6) The Defendant submits that the aircraft scheduled to operate the Claimants’ flight, aircraft G-OZBE, was discovered to be suffering with a technical fault on the 12th September 2010 immediately prior to departure of a previous flight rotation. In particular, it became apparent that failure of the Stage 1 High Pressure Turbine Blade Outer Air Seal (“BOAS”) had led to turbine blade damage and there was subsequent evidence of metal fragments observed in the engine exhaust. The Defendant submits that the high pressure turbine blades also appeared to have suffered impact damage at the tips. Clearly the aircraft could not safely operate in this condition therefore the aircraft was declared unserviceable requiring rectification by way of an engine change.

7) The Defendant submits that the HPT Boas is not a component that is disturbed during normal line or base maintenance conducted by the Defendant. The Defendant submits, however, that during Engine Shop Visits (ESV) conducted by the Engine Manufacturer or an external third party the engine is subject to inspections and/or overhauls. For the avoidance of doubt, as the HPT Boas is not subject to maintenance by the airline nor expected to fail during operation between each ESV conducted by the manufacturer the Defendant submits that the failure of the HPT Boas was completely beyond the control of the Defendant and was, in fact, a hidden manufacturing defect.
8) Furthermore, the Defendant submits that the engine manufacturer, IAE, were aware of previous failure reports from other operators. The Defendant submits that in addition to the Manufacturer’s Aircraft Maintenance Plan IAE have also issued a Service Bulletin (“SB”) to all carriers containing revised inspection criteria for inspection of the component. Furthermore, subsequent to the Claimants’ flight an Airworthiness Directive (“AD”) was released making the SB mandatory. The Defendant submits that the awareness of IAE of failures of this type and the subsequent issuing of an AD confirms that the cause of the Claimants’ flight delay was completely beyond the control of the Defendant and was, in fact, a hidden manufacturing defect.

9) The Defendant submits that as the fault was caused by a hidden manufacturing defect it is considered an unpredictable and unexpected event which is deemed as extraordinary in accordance with point 18 of the Guidance on Extraordinary Circumstances from the National Enforcement Bodies across Europe published by the European Commission and the amended version released by the CAA in April 2015.

10) The Defendant submits that it has a full defence to the Claimants’ claim under Article 5 (3) of Regulation261/2004 which states ‘an operating carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation (delay) is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.’

11) The Defendant intends to rely upon the decision in Huzar ( [2014] EWCA Civ 791 Jet2.com Limited v.Ronald Huzar) where the Court of Appeal upheld HHJ Platts’ reasoning that ‘it cannot be ruled out that technical problems are covered by those exceptional circumstances to the extent that they stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. That would be the case, for example, in the situation where it was revealed by the manufacturer of the aircraft… or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety.’ The Defendant submits that the fault did not occur as a result of a failure to maintain the aircraft. On the contrary, the awareness of IAE regarding issues with the component concerned confirms that this is a hidden manufacturing defect supported by a Service Bulletin and Airworthiness Directive.Accordingly, this fault is clearly external to the Defendant. The Defendant submits therefore that the Claimants’ flight delay was caused by a manufacturing defect, such a fault is not inherent in the normal exercise of an air carrier and is in fact extraordinary and was a defect that could have an impinged on flight safety.

12) Furthermore the Defendants ubmits that it satisfies the test of using all reasonable measures to avoid the delay concerned, as set out in Wallentin (C-549/07Wallentin-Hermann v. Alitalia). In particular ‘even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would not have been able… to prevent the extraordinary circumstances with which it was confronted’, from leading to the delay. The Defendant submits that it is a smaller airline and had only 30 aircraft within its fleet at the time and therefore did not have spare idle aircraft to cover any disruption to its programme when an aircraft was unexpectedly removed. The Defendant submits that in order to minimise the Claimants’ flight delay its ub-chartered 2 alternative aircraft from a third party carrier on the market, namely Titan, with the required passenger capacity to operate the Claimants’ flight. For the avoidance of doubt, the Defendant sub-chartered both aircraftat its sole expense.

13) The Defendant submits that by sub-chartering 2 alternative aircraft from a third party carrier at its sole expense it deployed all its resources and financial means at its disposal to try and avoid and at best minimise the said delay.

14) The Defendant further intends to rely upon the decision of Eglitis v. Latvijas Republikasministrija at para 35 where the CJEU held that ‘the Regulation cannot result in airlines being led to make intolerable sacrifices.’

15) In addition to the case law, the Defendant intends to rely upon the Guidance on Extraordinary Circumstances from the National Enforcement Bodies across Europe published bythe European Commission.

Go onto the Thomas Cook thread and look up my case, all about engine trouble, service bulletins etc and the hogwash. Engine fault -tech problem no matter how they try to polish it. The wallentin case, the main case law was a engine fault! How long was the engine on the aircraft? was it a new aircraft or old? They already issued a service bulletin? That mean they were aware and did not take the aircraft out of service? yet they also say it's not a maintained part! contradictory. You can rip them apart on this especially go onto Aviation Herald and search the same problem so its not EC rubbish.

Omega_1

Does anyone have their email contact details (the on-line one is restricted to 100 characters) - thanks
(apologies if wrong posting area)

111KAB

Omega_1 wrote: »

Does anyone have their email contact details (the on-line one is restricted to 100 characters) - thanks
(apologies if wrong posting area)

Which department?