Flight delay and cancellation compensation, Thomas Cook ONLY

maghater

Ju499 wrote: »

Ive been following these threads since having a 33 hour delay manchester to las vegas in nov. Had the same fob off everyone else has, and issued proceedings. Thomas Cook have filed a defence, they say extraordinary circs due to 'the aircraft suffered an engine stall at 33,000 feet whilst operating a flight the day before between man and cuba. The aircraft performed an airborne return to enable troubleshooting to take place...........delay was therefore extraordinary circs, and also delay compounded further by an ignition problem which is a extraordinary circ, and issues with local immigration officials which is entirely outside the defendants control.
They seem to be saying that as the flight the day before ours had a problem, we had the 'knock on' effect so tough to us.

Any help would be appreciated, they also quote Graham and Anor v Thomas cook 2012 EWCA Civ 1355 that i have yet to find. Ive got to fill in my forms for a hearing now.

Anyone else had anything like this???

Thanks

Ju

How the heck can anyone defend a 33 hour delay at one of their hub airports, they can clain ecs till the cows come home! The problem is that they are under resourced, so when things go wrong, they do not have the back up to cope, and mega delays result. IMHO this is the very thing that EC 261 was brought in to stamp out. Have a look at Eglitis & Ratnieks ,

maghater

JPears wrote: »

Others might correct but I think a bird strike mid air on your flight would class as EC so probably no claim. However you should have been fully fed and watered all the time you were delayed, or compensated for any expenses you incurred during the delay.

They can argue ECs, but birds, and aircraft do share the same airspace so interactions between the two should be anticipated, and plans put in place to mitigate any delay. This sounds like a hefty delay, look at the ruling in Eglitis v Ratnieks (in the FAQs), basically says airlines should build some slack into their schedules to cope with incidents like this. TC make the commercial decision to flog their fleet to death, and as such must be prepared to face the financial consequences when things go wrong. Is that not in fact what EC261 is all about?

JPears

maghater wrote: »

They can argue ECs, but birds, and aircraft do share the same airspace so interactions between the two should be anticipated, and plans put in place to mitigate any delay. This sounds like a hefty delay, look at the ruling in Eglitis v Ratnieks (in the FAQs), basically says airlines should build some slack into their schedules to cope with incidents like this. TC make the commercial decision to flog their fleet to death, and as such must be prepared to face the financial consequences when things go wrong. Is that not in fact what EC261 is all about?

A point I have been making for many months. In this case the first hurdle may have been leaped but the second test hasn't.

superowls

Mark2spark wrote: »

But did the judge ask for the directions App *because* you hadn't filed a response to their defence, *or* because of the 4 passenger thingy?
Again, because I don't have the chronology of events, with dates, I can only assume, but I would have told the judge that my response would have been forthcoming in due course.
But that's gone now, so don't worry about it. Next step is to post the airlines defence so it can be ripped apart.

I think the main reason was the claimant issue, but the response was a secondary part to it.

As requested here follows TCs defence:

1. The Defendant should be the airline with whome the Claimant travelled as claims for delay brought under 261/2004 are against the operating airline. As such, the Defendant has amended itself to the correct entity, that being Thomas Cook Airlines UK Limited. The Defendant named on the Claimant Form and the amended defendant named on this defence are both parties of the Thomas Cook group of companies.

2. The Defendant is an airline, specialising in the provision of international flights to the public.

3. It is admitted that the Claimant was a passenger booked on the Defendant's flight operating under flight number TCX174 on 9 November 2012 between Manchester Airport and Jardines del Rey Airport in Cuba.

4. It is admitted that EC Regulation 261/2004 (the Regulation) applied to the Claimants flight, both by operation of law and incorporation into the contract. 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 boarding and delayed flights. It is denied that the Regulation expressly provides that compensation is payable in the event of a delayed flight.

5. The Claimant's 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.

6. It is arrerred 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.

7. It is admitted that the Claimant's flight was delayed by in excess of three hours in respect of the new arrival time.

8. The Claimants right to compensation in respect of the flight delay is denied. The Claimant did not fall to be compensated under the Regulation or at all because the said delay was due to a number 2 engine stall which lasted 5 seconds. The Defendants power plant department have confirmed that there was no previous history of defects related to the stall/surge event on 9 November 2012, while Engine Trend Data has confirmed that engine performance did not indicate any impending failure. As such the fault constitutes an extraordinary circumstance within the meaning of the said Regulation, specifically at Recitals 14 and 15 of the Preamble to said Regulation.

9. Further, or in the alternative and pursuant to the Court of Appeal decision in Graham & Anor -v- Thomas Cook Group UK Ltd [2012] EWCA Civ 1355, it is averred that the Claimant has no private law civil cause of action against the Defendant.

10. Further, the Defendant requires clarification of the individuals on whose behalf compensation is claimed.

11. It is therefore denied that the Claimant is entitled to compensation as is alleged and the Defendant denies it is liable to the Claimant for the amount claimed or at all.



So there you have it, obviously I now need to respond to this as per the judges instructions. Also does anyone know how I would add the 3 other people to be joint claimants?

clydesider

I have today received the following reply from TC having initially claimed compensation for a 5and a half hour delay and disputing their original response claiming a technical problem was an EC.

"[FONT=&quot]Dear Mrs C

I am writing in response to your most recent letter and I am sorry that you remain unhappy with our previous reply.

On receipt of your initial claim a full investigation was carried out by the airline into the circumstances surrounding this delay. This investigation included analysis of historical maintenance data, discussions with engineers, and a review of the activity of our other aircraft at the time. Following this thorough process we remain confident that the technical fault was extraordinary and that we took all reasonable measures possible to avoid the delay in question.

I appreciate you remain unhappy with this decision, and whilst I regret this, we do not believe that a payment under the rules of the scheme is relevant in this particular case. Should you remain unhappy I can only suggest that you contact the Civil Aviation Authority (CAA) online or call the CAA for advice on 020 7453 6888.

I trust this provides some clarity on our position and I can only apologise once again for the delay you encountered on this occasion.

Kind Regards,

Ian Cassidy

Customer Relations"

I am certainly not going to contact the CAA as advised in other posts but I am thinking that I should simply proceed to action or put in the hands of a NWNF lawyer, any advice appreciated.

[/FONT]

Vauban

superowls wrote: »

I think the main reason was the claimant issue, but the response was a secondary part to it.

As requested here follows TCs defence:

1. The Defendant should be the airline with whome the Claimant travelled as claims for delay brought under 261/2004 are against the operating airline. As such, the Defendant has amended itself to the correct entity, that being Thomas Cook Airlines UK Limited. The Defendant named on the Claimant Form and the amended defendant named on this defence are both parties of the Thomas Cook group of companies.

2. The Defendant is an airline, specialising in the provision of international flights to the public.

3. It is admitted that the Claimant was a passenger booked on the Defendant's flight operating under flight number TCX174 on 9 November 2012 between Manchester Airport and Jardines del Rey Airport in Cuba.

4. It is admitted that EC Regulation 261/2004 (the Regulation) applied to the Claimants flight, both by operation of law and incorporation into the contract. 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 boarding and delayed flights. It is denied that the Regulation expressly provides that compensation is payable in the event of a delayed flight.

5. The Claimant's 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.

6. It is arrerred 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.

7. It is admitted that the Claimant's flight was delayed by in excess of three hours in respect of the new arrival time.

8. The Claimants right to compensation in respect of the flight delay is denied. The Claimant did not fall to be compensated under the Regulation or at all because the said delay was due to a number 2 engine stall which lasted 5 seconds. The Defendants power plant department have confirmed that there was no previous history of defects related to the stall/surge event on 9 November 2012, while Engine Trend Data has confirmed that engine performance did not indicate any impending failure. As such the fault constitutes an extraordinary circumstance within the meaning of the said Regulation, specifically at Recitals 14 and 15 of the Preamble to said Regulation.

9. Further, or in the alternative and pursuant to the Court of Appeal decision in Graham & Anor -v- Thomas Cook Group UK Ltd [2012] EWCA Civ 1355, it is averred that the Claimant has no private law civil cause of action against the Defendant.

10. Further, the Defendant requires clarification of the individuals on whose behalf compensation is claimed.

11. It is therefore denied that the Claimant is entitled to compensation as is alleged and the Defendant denies it is liable to the Claimant for the amount claimed or at all.


So there you have it, obviously I now need to respond to this as per the judges instructions. Also does anyone know how I would add the 3 other people to be joint claimants?

Okay, shall I have first dibs at this?

You need to address the point about getting the right number of claimants properly to the action (the court can advise you about how to do this). That then leaves you with two points to argue:

a) The engine stall was extraordinary circumstances;
b) You have no right of private action against the airline.

As the second is easier to deal with, I suggest you tackle that first. And then deal with ECs.

I suggest that you append the relevant European Court judgements with your submission too. And you need to format the document appropriately.

So I would make the following points (but do make sure you understand them - as you will need to argue them in court - so ask if you don't follow something ...)


Private Law Civil Cause of Action

1. In paragraph 9, the Defendant asserts that “pursuant to the Court of Appeal decision in Graham& Anor -v- Thomas Cook Group UK Ltd [2012] EWCA Civ 1355, it is averredthat the Claimant has no private law civil cause of action against theDefendant.” This is incorrect. In the judgement of McDonagh v Ryanair(Case C‑12/11) in January 2013, the European Courtruled that

The fact ... that each Member State designatesa body responsible for the enforcement of Regulation No 261/2004 which, whereappropriate, takes the measures necessary to ensure that the rights ofpassengers are respected and which each passenger may complain to about analleged infringement of that regulation, in accordance with Article 16 of theregulation, is not such as to affect the right of a passenger to suchreimbursement. ...

Consequently, it must be held that an airpassenger may invoke before a national court the failure of an air carrier tocomply with its obligation, laid down in Articles 5(1)(b) and 9 of RegulationNo 261/2004, to provide care in order to obtain compensation from that aircarrier for the costs which it should have borne under those provisions.

2. Further the Claimant notes that the Civil AviationAuthority, as the National Enforcement Body responsible for the implementationof the Regulation 261/04 in the UK, states on its website that

It is the CAA’s view that consumers have the right topursue claims through the court system for breaches of duties under the DeniedBoarding Regulations. This was also made clear by the government when it brought in UK laws to give effect to the EC Denied Boarding Regulations. ...

This reflects the wording of the EC Denied BoardingRegulation itself and in particular Recital 22 which states expressly that,whilst Member States are required to ‘ensure and supervise general complianceby their air carriers with this Regulation … supervision should not affect therights of passengers and air carriers to seek legal redress from Courts underprocedures of national law.’

Regulation 261/04 and “Extraordinary Circumstances”

3. The Claimant submits that compensation falls to be paid under RegulationEC No 261/2004 as a result of a delayed flight. In the judgment in Sturgeon andOthers (Joined CasesC-402/07 and C-432/07), the European Court of Justice found that passengerswhose flights are delayed may be treated the same way as those whose flightsare cancelled as regards their right to compensation. Thus, the Court held thatif passengers reach their final destination three hours or more after the timeoriginally scheduled, they may claim fixed compensation from the airline,unless the delay is caused by extraordinary circumstances. This was reconfirmed by the Court (GrandChamber) in their judgement in joined cases TUITravel and Others(C-581/10 and C-629/10) in October 2012.

4. Regulation EC No 261/2004 provides, in Article5(3), that a passenger is not entitled to compensation if the air carrier canprove that the long delay is caused by extraordinary circumstances which couldnot have been avoided even if all reasonable measures had been taken, namelycircumstances beyond the actual control of the air carrier. However, as the European Court emphasised inthe paragraph 20 of the Wallentin judgement of December 2008 (C-549/07Wallentin-Hermann v. Alitalia):

it is clear that, whilstArticle 5(1)(c) of Regulation No 261/2004 lays down the principle thatpassengers have the right to compensation if their flight is cancelled, Article5(3), which determines the circumstances in which the operating air carrier is notobliged to pay that compensation, must be regarded as derogating from thatprinciple. Article 5(3) musttherefore be interpreted strictly.

5. TheDefendant states that as there was no previous history of defects related to thestall/surge event on 9 November 2012, while Engine Trend Data has confirmedthat engine performance did not indicate any impending failure, as such thefault constitutes an extraordinary circumstance within the meaning of the saidRegulation.

6. Regulation EC No 261/2004 stipulates that:

Obligations on operating air carriersshould be limited or excluded in cases where an event has been caused byextraordinary circumstances which could not have been avoided even if allreasonable measures had been taken. Such circumstances may, in particular,occur in cases of political instability, meteorological conditions incompatiblewith the operation of the flight concerned, security risks, unexpected flightsafety shortcomings and strikes that affect the operation of an operating aircarrier.

7. The Wallentin judgement, however, makes an importantclarification in paragraph 23:

Although the Community legislatureincluded in that list ‘unexpected flight safety shortcomings’ and although atechnical problem in an aircraft may be amongst such shortcomings, the factremains that the circumstances surrounding such an event can be characterisedas ‘extraordinary’ within the meaning of Article 5(3) of Regulation No 261/2004only if they relate to an event which, like those listed in recital 14 inthe preamble to that regulation, is not inherent in the normal exercise of theactivity of the air carrier concerned and is beyond the actual control of thatcarrier on account of its nature or origin.

This definition ofextraordinary circumstances was also subsequently confirmed in both the Sturgeonand the Tui Travel European Courtjudgements.

8. The Wallentin judgement gives illustrative examples of thekinds of technical failures that might be considered as “extraordinarycircumstances” at paragraph 26:

Thatwould be the case, for example, in the situation where it was revealed by themanufacturer of the aircraft comprising the fleet of the air carrier concerned,or by a competent authority, that those aircraft, although already in serviceare affected by a hidden manufacturing defect which impinges on flight safety.The same would hold for damage to aircraft caused by acts of sabotage orterrorism.

9. TheClaimant submits that anumber 2 engine stall, whilst notnecessarily predictable in each instance, does not fall into this category of “extraordinarycircumstance”. The risk of such engine failure is rather a phenomenoninherent in the normal exercise of an airline’s activity. The fact thatthe airplane may have been previously subjected to industry-standard andlegally necessary maintenance checks does not absolve the Defendant of theirobligation to pay compensation for delays caused by technical failures. This is clear from the conclusion inparagraphs 24 of Wallentin that:

In the light of the specific conditionsin which carriage by air takes place and the degree of technologicalsophistication of aircraft, it must be stated that air carriers are confrontedas a matter of course in the exercise of their activity with various technicalproblems to which the operation of those aircraft inevitably gives rise. It is moreover in order to avoid suchproblems and to take precautions against incidents compromising flight safetythat those aircraft are subject to regular checks which are particularlystrict, and which are part and parcel of the standard operating conditions ofair transport undertakings. The resolution of a technical problem causedby failure to maintain an aircraft must therefore be regarded as inherent inthe normal exercise of an air carrier’s activity.

Consequently, technical problems whichcome to light during maintenance of aircraft or on account of failure to carryout such maintenance cannot constitute, in themselves, ‘extraordinarycircumstances’ under Article 5(3) of Regulation No 261/2004.

This is further confirmed in the thirdoperative conclusion of Wallentin:

The fact that an air carrier hascomplied with the minimum rules on maintenance of an aircraft cannot in itselfsuffice to establish that that carrier has taken ‘all reasonable measures’within the meaning of Article 5(3) of Regulation No 261/2004 and, therefore, torelieve that carrier of its obligation to pay compensation provided for byArticles 5(1)(c) and 7(1) of that regulation.

10. If the Court does notaccept that anengine stall does not constitute “extraordinary circumstances” for the flight in question, there is a further test for the Defendant to meetto absolve them of the obligation to pay compensation. As paragraph 39 of Wallentin explains:

It must be observed that the Community legislatureintended to confer exemption from the obligation to pay compensation topassengers in the event of cancellation of flights not in respect of allextraordinary circumstances, but only in respect of those which could not havebeen avoided even if all reasonable measures had been taken.

11. The Defendant mustshow that it had taken reasonable measures not just to prevent theextraordinary circumstances, but to ensure that those circumstances do notsignificantly impact on the punctuality of the flight. The requirement that the regulation placesupon the airline in these circumstances is significant. The European Court has prescribed clear andonerous obligations on an airline to prevent serious delays arising, even fromextraordinary circumstances. Asparagraph 41 of Wallentin notes, the airline:

must establish that, even if it haddeployed all its resources in terms of staff or equipment and the financialmeans at its disposal, it would clearly not have been able – unless it hadmade intolerable sacrifices in the light of the capacities of its undertakingat the relevant time – to prevent the extraordinary circumstances with which itwas confronted from leading to the cancellation [or, post-Sturgeon, delay] ofthe flight.

12. The Claimant thereforeputs the Defendant to strict proof to demonstrate exactly what measures – “allof its resources” short of “intolerable sacrifices” – Thomas Cook Airlines took to prevent a delay to the flight once the aircraft had experienced technical difficulties. In particular, what efforts the Defendantmade either to provide a spare aircraft or crew, to lease an aircraft fromanother commercial provider, or to book the Claimant and his family on one of the other flights, including from other airlines, servicing similar routes that day. Anyof these resolutions would have been consistent with the Defendant’s obligationto deploy “all its resources in terms of staff or equipment and the financialmeans at its disposal”.

13. TheClaimant contends that, absent compelling evidence from the Defendant that theyattempted each and all of these reasonable actions, the Defendant is liable forthe payment of compensation, as stipulated under the relevant Regulation andprecedent case law.

Hellnell

Hi, I'm new to this forum lark so apologies if I've overlooked a blindingly obvious answer to my query.

I used wording from the MSE template to make an online claim for a 7 hour delay on a flight returning from Turkey last year and received the following email in response, citing 'extraordinary cirumstances' and 'technical nature' as a reason for compensation not being considered applicable:

"I am writing in response to your letter regarding your recent travel arrangements with Thomas Cook.

Initially, I would like to apologise for the disruption to your flight plans. Please be assured that a lot of work goes on behind the scenes to ensure that any delays are kept to an absolute minimum, as we do fully understand the inconvenience and frustration these can cause.

It is not always immediately apparent as to when a revised take off time can be secured and a number of factors have to be considered, which quite often rely on outside influences, such as Airport Authorities or Air Traffic Control. We do appreciate the importance of communication, and I would assure you that information is passed onto our customers as quickly as possible, through our handling agents at the airport.

Having carried out a full investigation the specific circumstances surrounding the delay to your own flight were of a technical nature. These were extraordinary, in that Thomas Cook took all reasonable precautions necessary to avoid the situation, and despite our proactive measures the problem could not have been prevented. All our aircraft are maintained to a very high standard, in line with CAA regulations, however, despite these steps, mechanical failures can arise without prior warning. These unpredictable events can be likened to those we encounter with our own cars, despite having full service histories, or MOT’s.

In line with Regulation 261/2004 a payment of compensation would not be considered applicable in this case.

Please be assured that on-time performance is a key measure for us as a business, and we constantly review our operations to ensure we deliver the best results, and service. I would like to offer our apologies for any inconvenience you were caused on this occasion and I hope that despite this, your stay was found to be an enjoyable one."

So basically my queries are: 1. How do I know the delay was of a technical nature (they could be fibbing, especially as we heard from the rep on the ground that the company didn't actually have a plane for us) and 2. Where can I go from here if I want to challenge their decision?
Many thanks!

tricia180

I am helping a friend claim for a delayed flight and I am compiling a NBA, after receiving the usual template response. I am aware that some-one on the same flight has been compensated after commencing MCOL. TC did not contest the case, should i mention this in the letter.

Vauban

tricia180 wrote: »

I am helping a friend claim for a delayed flight and I am compiling a NBA, after receiving the usual template response. I am aware that some-one on the same flight has been compensated after commencing MCOL. TC did not contest the case, should i mention this in the letter.

Yes - why not?

Vauban

Hellnell wrote: »

So basically my queries are: 1. How do I know the delay was of a technical nature (they could be fibbing, especially as we heard from the rep on the ground that the company didn't actually have a plane for us) and 2. Where can I go from here if I want to challenge their decision?
Many thanks!

Read the FAQs on page one - all the info you need to take forward your claim is there.