Flight delay and cancellation compensation, Thomas Cook ONLY

richardw

sging1 wrote: »

...Is it OK to paste the body here for advice.?.

It is, BUT they do read these forums, so anonymise it and consider if any phrasing would identify your case before posting.

Vauban

richardw wrote: »

It is, BUT they do read these forums, so anonymise it and consider if any phrasing would identify your case before posting.

They're public documents effectively, so not confidential. Others have posted theirs and found the advice they got quite helpful. So stick it up, and we'll see what we all make of it ...

(I'm betting it's not very good);)

sging1

Below is some extract of the main points of the defence from Thomas Cook’s solicitors.

1. No Evidence of a contract between the Claimant and Defendant has been provided and that the Defendant reserves the right to plead further in this regard upon provision of the same. In the absence of information to the contrary it is not possible to admit or deny that the booking was made for the amount of persons. Further no evidence has been provided as to whether or not the Claimant was the lead name on the booking nor whether the additional passengers have provided actual authority for him to bring the claims on their behalf.

2. It is admitted that EC Regulation 261/2004 (“the Regulation”) applies to the Claimants flight. This provides that compensation is payable in the event of cancelled flights and instances of denied boarding. It also provides that airlines are to provide welfare to passengers in the event of cancellation, denied flight boarding and delayed flights. It is denied that the Regulation expressly provides that compensation is payable in the event of a delayed flight.

3. The claimants compensation claim is based upon the decision of the European Court of Justice (“ECJ”) in the joined cases of Sturgeon v Condor Flugdienst GmbH and Bock v Air France, cases C-402/07 and C-432/07 respectively, where it was determined that despite the Regulation not expressly stating that compensation is applicable in the event of delay, the regulation is to be interpreted in such a way.

4. It is averred that the provisions of the Regulation are subject to the derogations to liability as contained in Recitals 14 and 15 to the Preamble of the Regulation. It is further averred that technical fault that caused the delay to the Claimants flight is and extraordinary circumstance and as such compensation ought not to be applicable in all circumstances.

5. Further, or in the alternative, and pursuant to the court of appeal decision in Graham & Anor v Thomas Cook Group UK Limited [2012] EWCA Civ 1355, it is averred that the Claimant has no private Civil law cause of action against the Defendant and instead his claim must be brought before the Civil Aviation Authority (“CAA”), who are appointed National Enforcement Body (“NEB”) appointed in respect of The Civil Aviation (Denied Boarding, Compensation and assistance) Regulation 2005.

6. For the avoidance of doubt, it is averred that the fault causing the Claimants flight to be delayed was an extraordinary circumstance and due to this, compensation is not appropriate in the circumstances. In the alternative, it is averred that the Claimants claim ought to be properly referred to the CAA as the appointed NEB for the enforcement of obligations under the regulation.

It seems to me they are picking at straws here with the legal jargon to try and scare me off. I have supplied all the names and flight numbers of passengers and I would think they would now need to prove that we weren’t on the flight (point 1). I also have full signed authorisation giving me permission to act on everyone’s behalf. They have also still failed to supply me with what the EC was which I requested in a follow up letter before I started the MCOL.

I just don’t know where coming from by referring me to the CAA. I thought the CAA did not have any enforcement powers. However I have involved them since the 3rd February and am still waiting on a ruling which I will now chase.
What happens now as I have not heard from the courts yet so am not sure what the next stage is but I want to start preparing as I will take this all the way to appeal if it goes that far.

Good work to everyone on this forum. I can’t believe how unreliable and dangerous some of these faults are on TC planes. I’m not a nervous flyer but I think I would be if I flew with TC again :A.

Gorbar

sging1 wrote: »

Below is some extract of the main points of the defence from Thomas Cook’s solicitors.

1. No Evidence of a contract between the Claimant and Defendant has been provided and that the Defendant reserves the right to plead further in this regard upon provision of the same. In the absence of information to the contrary it is not possible to admit or deny that the booking was made for the amount of persons. Further no evidence has been provided as to whether or not the Claimant was the lead name on the booking nor whether the additional passengers have provided actual authority for him to bring the claims on their behalf.

2. It is admitted that EC Regulation 261/2004 (“the Regulation”) applies to the Claimants flight. This provides that compensation is payable in the event of cancelled flights and instances of denied boarding. It also provides that airlines are to provide welfare to passengers in the event of cancellation, denied flight boarding and delayed flights. It is denied that the Regulation expressly provides that compensation is payable in the event of a delayed flight.

3. The claimants compensation claim is based upon the decision of the European Court of Justice (“ECJ”) in the joined cases of Sturgeon v Condor Flugdienst GmbH and Bock v Air France, cases C-402/07 and C-432/07 respectively, where it was determined that despite the Regulation not expressly stating that compensation is applicable in the event of delay, the regulation is to be interpreted in such a way.

4. It is averred that the provisions of the Regulation are subject to the derogations to liability as contained in Recitals 14 and 15 to the Preamble of the Regulation. It is further averred that technical fault that caused the delay to the Claimants flight is and extraordinary circumstance and as such compensation ought not to be applicable in all circumstances.

5. Further, or in the alternative, and pursuant to the court of appeal decision in Graham & Anor v Thomas Cook Group UK Limited [2012] EWCA Civ 1355, it is averred that the Claimant has no private Civil law cause of action against the Defendant and instead his claim must be brought before the Civil Aviation Authority (“CAA”), who are appointed National Enforcement Body (“NEB”) appointed in respect of The Civil Aviation (Denied Boarding, Compensation and assistance) Regulation 2005.

6. For the avoidance of doubt, it is averred that the fault causing the Claimants flight to be delayed was an extraordinary circumstance and due to this, compensation is not appropriate in the circumstances. In the alternative, it is averred that the Claimants claim ought to be properly referred to the CAA as the appointed NEB for the enforcement of obligations under the regulation.

It seems to me they are picking at straws here with the legal jargon to try and scare me off. I have supplied all the names and flight numbers of passengers and I would think they would now need to prove that we weren’t on the flight (point 1). I also have full signed authorisation giving me permission to act on everyone’s behalf. They have also still failed to supply me with what the EC was which I requested in a follow up letter before I started the MCOL.

I just don’t know where coming from by referring me to the CAA. I thought the CAA did not have any enforcement powers. However I have involved them since the 3rd February and am still waiting on a ruling which I will now chase.
What happens now as I have not heard from the courts yet so am not sure what the next stage is but I want to start preparing as I will take this all the way to appeal if it goes that far.

Good work to everyone on this forum. I can’t believe how unreliable and dangerous some of these faults are on TC planes. I’m not a nervous flyer but I think I would be if I flew with TC again :A.

From our experience they ignored the Greek Authority, who eventually told them to pay up, they never paid. we are now waiting for their defence. They replied on22/3 defending so should be getting it shortly

Ich_2

I can’t believe how unreliable and dangerous some of these faults are on TC planes.

They would be if they weren't detected and fixed. But that can cause delays

jmstar55

Thanks for posting that sging1....it adresses a question I had about not being the lead passenger, and acting on behalf of the other six passengers in my party. I shall now draw up letters of authority and get them all to sign it.

Does anyone think it might be advisable for a joint claim to be submitted by the lead passenger and myself as we live together? Or will a signed letter of authority from him suffice?

technoflare

Hi,

Just seen this. I have a outgoing flight that was delayed by 6 hours. It was Sept 2006 though. All I have is the invoice from the booking. The delay checks out via Flight Stats and was from Leeds to Mallorca. What do you think my chances are? The only discrepancy is the flight number is different on flights stats (invoice says AEU937 - Flightstats says for same time and from/too as 5W 937 - but looking via Google and AEU and 5W are the same).

As it was such a long delay (much of it on a hot plane), it may be worth SCC if they ignore?

technoflare

hmm....6 year limit stops that I guess...looking at the info from Martin Thomas Cook don't go have 6 yrs. So court is only way? If they will consider over 6 yrs....???

Vauban

sging1 wrote: »

Below is some extract of the main points of the defence from Thomas Cook’s solicitors.

I am not a lawyer - but there seems to be four main elements to their defence:

1. No Evidence of a contract between the Claimant and Defendant has been provided and that the Defendant reserves the right to plead further in this regard upon provision of the same. In the absence of information to the contrary it is not possible to admit or deny that the booking was made for the amount of persons. Further no evidence has been provided as to whether or not the Claimant was the lead name on the booking nor whether the additional passengers have provided actual authority for him to bring the claims on their behalf.

This ought to be easy to deal with: what evidence do you have that you were on the flight? An email from the airline, a booking reference and suchlike? And as for the authority from others, I think that's dealt with by formal identical letters from them all to you, mandating you to take this forward. These letters can then form part of your bundle.

2. It is admitted that EC Regulation 261/2004 (“the Regulation”) applies to the Claimants flight. This provides that compensation is payable in the event of cancelled flights and instances of denied boarding. It also provides that airlines are to provide welfare to passengers in the event of cancellation, denied flight boarding and delayed flights. It is denied that the Regulation expressly provides that compensation is payable in the event of a delayed flight.

3. The claimants compensation claim is based upon the decision of the European Court of Justice (“ECJ”) in the joined cases of Sturgeon v Condor Flugdienst GmbH and Bock v Air France, cases C-402/07 and C-432/07 respectively, where it was determined that despite the Regulation not expressly stating that compensation is applicable in the event of delay, the regulation is to be interpreted in such a way.

This is easily dealt with - the Nelson judgement (that reconfirmed the Sturgeon judgement last October I think) knocks all this back. I honestly don't know how they can make these arguments with a straight face: don't they value their credibility?

4. It is averred that the provisions of the Regulation are subject to the derogations to liability as contained in Recitals 14 and 15 to the Preamble of the Regulation. It is further averred that technical fault that caused the delay to the Claimants flight is and extraordinary circumstance and as such compensation ought not to be applicable in all circumstances.

This is actually the heart of their defence - it's the one thing they need to demonstrate to win. And they have completely failed to show why the technical fault is an extraordinary circumstance. Indeed, they don't talk about the fault at all. As I say to everybody, you need to read the Wallentin which explains in some detail why technical failures do not usually allow airlines off paying compensation.

5. Further, or in the alternative, and pursuant to the court of appeal decision in Graham & Anor v Thomas Cook Group UK Limited [2012] EWCA Civ 1355, it is averred that the Claimant has no private Civil law cause of action against the Defendant and instead his claim must be brought before the Civil Aviation Authority (“CAA”), who are appointed National Enforcement Body (“NEB”) appointed in respect of The Civil Aviation (Denied Boarding, Compensation and assistance) Regulation 2005.

Other people more expert than me will be able to offer a view on this. But it seems that the claimant wasn't just after her 261/04 payment, but actually wanted significant "damages" for a breach of contract. She was also trying to use article 16 to extract further compensation. The court said it was for the CAA to decided whether that was appropriate, not the court. But this is not the same as saying only the CAA can take the airlines to court for a breach of 261/04: the CAA is responsible for generic enforcement (which is what article 16 ensures), but individuals can still petition the courts for their right to the statutory compensation provided in article 8. In other words, it is a red herring.

So their main arguments are:

a) you haven't proved you were on the flight, or have the permission to act on others' behalf - that's easily dealt with!

b) there is no entitlement in 261/04 to payment for delay - that's utter [EMAIL="!!!!"]!!!![/EMAIL], as Sturgeon and Nelson both show definitively;

c) the technical problem (whatever the hell that was) is classed as extraordinary - this is wrong but also painfully thin in the argument. Wallentin is key here for you;

d) The Graham case at the high court shows that you have no right to petition the court for the statutory compensation: I think the court would take a dim view of this attempt to say you have no recourse. The CAA enforces general adherence; individuals can still sue for their statutory rights. There is an argument that the CAA ought to be taking some of these airlines to court for their systematic refusal to honour the regulation - but the CAA's failure to do so doesn't affect your ability to take the airline to court for the compensation prescribed in the regulation.

I hope that is helpful. My own sense is that if this is the best the airline can come up with, you should be fine. They have avoided the main substance of the case, trying instead to catch you on technicalities. I wonder whether they'd have the confidence to put this to a judge - I wouldn't be surprised if they settled on the steps of the court! Stand your ground!

Sparky_01

Help please we were delayed from 2pm the 24th May 2008 until 9.30am the 25th of may 2008, going to fuerteventura . 7 of us in the party with 3 kids under 6. we were flying from manchester and TC tried to put us in a hotel in liverpool. we live in manchester so decided to go home then back to the airport in the morning. I have sent standard complaint letter to tc which they have replied:mad::mad: with the same standard exceptional circumstance mechanical failure. I have written again to ask for explanation of exact reason of delay, I have not received nothing back. What is my next step? I have also completed the caa online application, but not received a response 4 weeks now.