Flight delay and cancellation compensation, Thomas Cook ONLY

Justice13075

EuClaim believe you are due 600euro per passenger. Put you flight details into bottonline and see what they say.

Paulcox741

Yeah, been through the whole process. All indications are we're due but CEDR disagreed so this is my last hope.

Justice13075

Good Luck, if you need any help just come back.

Tyzap

Paulcox741 wrote: »

Have had my claim rejected by TC and CEDR (despite someone else having theirs accepted).

Delay was 5 hours but they've managed to somehow justify 2 hours and 5 minutes were due to extraordinary circumstances. Miraculously taking the delay down to just under the limit 2hr 55mins.

However, I think they've taken the final time from the time we landed rather than the time the doors opened. I'm going to take this down the small claims court route but wondered if there is anywhere I can double check?

Flight is MT2929 5/8/17. I logged the flight landing time as 11:20 with doors opening at 11:30. They've logged it as 11:25.

Looking at a replay on PlaneFinder, you landed at 11.20 and took 5 minutes to taxi to stand, then a few more minutes until the door would be opened. I would say your timings look accurate.

Can you post or pm the CEDR findings? I'd love to see how they managed to justify 2h 55m.

NoviceAngel

Paulcox741 wrote: »

Have had my claim rejected by TC and CEDR (despite someone else having theirs accepted).

Delay was 5 hours but they've managed to somehow justify 2 hours and 5 minutes were due to extraordinary circumstances. Miraculously taking the delay down to just under the limit 2hr 55mins......

We all said CEDR would be a disaster, just wish we could be proved wrong!

Don’t give up, I’d issue an NBA see what happens, when they don’t respond either follow Vaubans guide or give your case to a good NWNF Solicitors, I’m sure you’ll win your case.

Paulcox741

Thanks Tyzap/NoviceAngel.

Tyzap - have sent you a PM
Novice/Angel - NBA is my next step. Just wanted to be 100% on my timings first.

Tyzap

Thanks PaulCox741 for the PM and the details of the CEDR findings.

I'll post my thoughts here once I have given the document due consideration.

Tyzap

Hi PaulCox741,

Ive read the reasons that CEDR denied your claim for compensation from Thomas Cook and these are my observations on that decision.

The adjudicators document -reasons for decision- consists of two A4 sheets and eight paragraphs, the first two of which contain general and background information.

The next FIVE paragraphs go on to detail the reasons that the previous two flights prior to yours were delayed. These are reasons that caused a delay to the flight before yours (MT2928) but not directly to your flight. Your flight was delayed as a result of problems to those earlier flights, which the airline and the adjudicator then passed on to your flight. Generally know as a knock on delay.

Only the final paragraph (8) addresses your flight and confirms that there were no further delays incurred, but that your flight still arrived with a five hour delay.

Under some circumstances a delay to an earlier flight, caused by an extraordinary circumstance (EC), may also affect later flights by that aircraft, such as possibly..

Acts of terrorism or sabotage
Political or civil unrest
Security risks
Strikes (unrelated to the airline such as, airport staff, ground handlers, or air traffic control)
Weather conditions incompatible with the safe operation of the flight
Hidden manufacturing defects (a manufacturer recall that grounds a fleet of aircraft)

But the merit of each case should be examined on a case by case basis.

However, the airline has claimed that the previous flight to yours was struck by lightening as it landed at Stansted Airport and that this was an EC which caused a delay of 1hour and 5 minutes. The adjudicator has then erroneously knocked this time off the delay incurred by your flight, there is no precedent.

The adjudicator says - I find that this is akin to a bird strike and that it must be deemed an extraordinary circumstances as it is outside the normal activity of the air carrier and outside its actual control-

The adjudicator has concocted a rule for this adjudication that is not supported by the EC261 regulations or any case law to support this view.

The airline suggests that a second delay was incurred when the previous flight to yours (MT2928) arrived at Orlando International Airport (MCO). The landing aircraft was already 3hours and 48minutes late when it arrived. By this time other aircraft were using all the available gates and flight MT2928 was forced to wait 1hour and 25minutes before it docked at the arrival gate.

The adjudicator says -I must find that the airline was unable to travel to the gate due to airport restriction. These restrictions must also be seen as extraordinary circumstances as, whilst travel to the gates within the normal activity of the airline, the lack of any gate availability is outside the normal activity. The provision of gates is also within the control of the airport and therefore outside the airlines control. I find that a minimum of a further 1 hour of delay was incurred due to there being no gate available on landing-

Once again the adjudicator has concocted another rule as factual, which is unsupported by the EC261 regulations or any case law, there is no precedent set by previous legal cases to support this view.

He decided that this delay amounts to an EC and has then erroneously deducted 1 hour from the delay incurred by your flight, making a total deduction of 2hours and 5minutes.

The adjudicator states that your flight (MT2929) arrived back at Stansted Airport exactly 5 hours late, which would ordinarily qualify you for compensation at the full rate. However, the adjudicator has then erroneously deducted 2hours and 5minutes from your delay time because he says it was due to two ECs on the previous flight. This has the effect of reducing your delay to 2hours and 55minutes, 5 minutes under the lower rate of compensation, resulting in no compensation payment for your delay.


My feeling is that the adjudicator got this decision wrong by drawing his own conclusions and not adhering to the EC261 regulation, case law and some general understanding of what the regulation intentions are.

He seems to have lost sight of the fact that the pre-amble to the regulations states...

Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.

and

A given extraordinary circumstance can produce more than one cancellation or delay at final destination, such as in the case of an Air Traffic Management decision as referred to in Recital 15 of the Regulation. As derogation from the normal rule, i.e. the payment of compensation, which reflects the objective of consumer protection, it must be interpreted strictly. Therefore all the extraordinary circumstances which surround an event such as those listed in Recital 14 are not necessarily grounds for an exemption from the obligation to pay compensation, but require a case-by-case assessment.

My interpretation of this is that the benefit of the doubt should always be given to the claimant, I cannot see why CEDR would view it any differently.
An airline must prove that a delay was caused by an EC to be exempted from paying compensation. The claimant does not have to disprove it. I do not feel that the airline proved its case or that the adjudicator fully understands the meaning of an EC.

There were also other areas of the decision that I would question, but these were the most compelling imo.

I believe that this case would succeed in the small claims track (MCOL), especially if allocated to one of the specialist flight delay courts. Perhaps that should be your next move.

Good luck.

JPears

Was the flight that was (allegedly) hit by lightening already delayed too?
If so one could argue that if the flight was not delayed in the first instance, it may not have suffered the lightening strike in the first place. Are lightening strikes reportable to CAA?
And not all of the original delay and therefore the missed gate excuse was due to the lightening strike.
The reasoning by the CEDR adjuticator is specious in the least (we haven't seen that word for a while ). Spurious even?

Tyzap

JPears wrote: »

Was the flight that was (allegedly) hit by lightening already delayed too?

It was a positioning flight from MAN which they admit arrived at STN 5hours and 22 minutes late. Had it arrived on time it would not have been hit by lightening. This was two flights before the ops!

Why it was so late is not explained and the adjudicator does not ask.