Flight delay and cancellation compensation, Tui/Thomson ONLY

matt2baker

In the case of a 4-page letter detailing EC's and "sorry your claim isn't accepted" etc, does it matter whether the letter has been headed "Without Prejudice" or not? Conversely, what is the relevance of a letter marked "Without prejudice"?

Vauban

matt2baker wrote: »

In the case of a 4-page letter detailing EC's and "sorry your claim isn't accepted" etc, does it matter whether the letter has been headed "Without Prejudice" or not? Conversely, what is the relevance of a letter marked "Without prejudice"?

There was an exchange on this a few weeks back. Those of a more legal disposition will correct me, but I understand that a "without prejudice" letter cannot be submitted to the court as evidence, if it represents a genuine attempt to settle the claim. It is not, however, legitimate to use it as a device to stop airlines' written lies from being put before the judge as evidence of their unreasonable behaviour - and you should therefore include it as evidence!

matt2baker

Vauban wrote: »

There was an exchange on this a few weeks back. Those of a more legal disposition will correct me, but I understand that a "without prejudice" letter cannot be submitted to the court as evidence, if it represents a genuine attempt to settle the claim. It is not, however, legitimate to use it as a device to stop airlines' written lies from being put before the judge as evidence of their unreasonable behaviour - and you should therefore include it as evidence!

Thanks Vauban - my son has just received a letter countering (denying) his claim and using the reason as a Tech Failure on the previous flight - and therefore an EC.
The letter does not indicate any attempt to settle the claim!!

Vauban

matt2baker wrote: »

Thanks Vauban - my son has just received a letter countering (denying) his claim and using the reason as a Tech Failure on the previous flight - and therefore an EC.
The letter does not indicate any attempt to settle the claim!!

Then your son should start a legal action and watch the airline's legal arguments wither under proper scrutiny.

You will have noted from the Court Success thread that, of the forty odd folk denied compensation who have started and concluded legal action, all but one have received their compensation. So there is little point in messing about, IMHO.

matt2baker

Vauban wrote: »

Then your son should start a legal action and watch the airline's legal arguments wither under proper scrutiny.

You will have noted from the Court Success thread that, of the forty odd folk denied compensation who have started and concluded legal action, all but one have received their compensation. So there is little point in messing about, IMHO.

NBA letter being written in between these postings as we speak!!

Then, two of my own as well....... :cool:

bazaar_2

Centipede100 wrote: »

It only goes to show that referring ones claim to the CAA in a case for compensation is not the way to go. Instead:

1. Read all the information and links provided in the FAQs.
2. Ask anything that is not covered in those FAQs and links on the appropriate airline specific thread in the forum before writing your NBA letter.
3. Write a NBA letter to the airline making your claim and giving it 14 or 21 days notice that unless the claim is settled or a valid defence offered you will commence a legal claim.
4. As soon as the 14 or 21 days expires (assuming the claim hasn't been settled or a valid defence offered) either issue a claim via MCOL if only 2 claimants or a claim via your local County Court on form N1 if more than 2 claimants.
5. Spend the time between issuing your legal claim and any further stages in the legal process studying the Reg, relevant case law and other help provided in the FAQs and elsewhere.

This is what needs to be made into a sticky, it should be above everything else. Its easy to get bogged down with all the arguments and not see the wood for trees.
nice C100

Vauban

bazaar wrote: »

This is what needs to be made into a sticky, it should be above everything else. Its easy to get bogged down with all the arguments and not see the wood for trees.
nice C100

The trouble is, I am afraid that it DOES require several hours of reading up - unless you're very lucky. I could happily post my skeleton argument for others to copy, but unless you've done the background reading on the regulation, the case law and the process, you are not going to be equipped to take this forward. There are no short-cuts. Read the FAQ - and all its links - as a minimum.

pymers

hi all got this reply from Thomson a bit long I am afraid but this is what they sent me don't know were to go from here do I give up !!!!

Flight to Mombasa didn't depart as scheduled.

At Thomson Airways, we're committed to treating our customers fairly. We go togreat

Lengths to avoid delays yet. Despite our very best efforts, they do sometimes happen.

Thankyou for your recent letter about your flight delay. I'm sorry to read that your

In a few circumstances, EU Regulation 26112004. As interpreted by the European Court

of Justice on 23rd October 2012, entitles some customers to payment when their flight

is delayed for over three hours and where that delay is caused by us.

After investigating your claim for compensation, l'can see from our internal airline

reports that your flight was affected by a delay of 12 hours 28 minutes as a' result of a

technical defect with the aircraft scheduled to operate your flight

Here at Thomson Airways. we are committed to on-time performance across our flying

programme.It sounds trite, but doing everything we reasonably can to get our aircraft

to their destinations, and you on holiday, safely and on time is really importantto us.

Interms of on-time performance, for the past few years Thomson Airways has

consistently been one of the best performing airlines in the UK and we work hard to

maintain the title of most on-time charter airline.

Delays are always a real disappointment for us, not only in respect of the effect that

they have on passenger enjoyment and comfort, but also there is a real financial cost to

usin circumstances which are almost always not our fault. That cost makes offering the

best value fares and holidays more of a challenge.

Very occasionally, though, and despite our very best efforts to prevent delays they can

occur and we are truly sorry that your flight was delayed in the way that you have

Described.

In a limited number of circumstances Regulation 261/2004 of the European Union(The

Regulation")now entitles some affected customers to a payment when their flight is

delayed over three hours on arrival.

Now that we've received your form, we've looked in detail at the circumstances that

surround your experience. So let's look at the specific cause of your delay.


As confirmed by the Court of Justice of the European Union C-CJEUj in the judgment

on Nelson v Lufthansa and C629/10 TUI British Airways. EasyJet and lATA v United

Kingdom CIVilAviation Authority. the question whether a specific delay triggers an

obligation to pay a proscribed amount of compensation pursuant to Article 7 of the

Regulation requires consideration as to whether the long delay is a result of

extraordinary circumstances that could not have been avoided even if all reasonable

measures had been taken. It's important to note that the "all reasonable measures"



In the case of your flight TOM076. the root cause of the delay was found to be a

technical defect. in the form of damaged C ducts. which was discovered prior to

departure.This grounded the aircraft scheduled to operate your flight which led to the

crew going out of hours. and subsequentfl required the flight to night-stop. An

alternative aircraft was sourced to operate your ffight which departed the following day

at the earliest opportunity. as soon as the crew were back in hour’s_ Since the technical

defect in question arose outside of routine maintenance checks, and could not have

been foreseen or prepared for. the delay has been attributed to '"Extraordinary

Circumstances",

"Inthe light of the foregoing the answer to question 1in Case C-629/10 is that

Articles5 to 7 of RegulationNo 261/2004 must be interpreted as meaning that

passengers whose flights are delayed are entitled to compensation under that

regulation where they suffer, on account of such flights, 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.Such a delay does not, however, entitle passengers to compensationif

the air carrier can prove that the long delay is caused by extraordinary

circumstances which could not have been avoided even if all reasonable

measures had been taken, namely circumstances beyond the actual control of

the air carrier,"

Plainly speaking. a number of passengers may be entitled to compensation for a

delay that results in those passengers reaching their destination airport in excess of

three hours after their ticketed arrival time. However, if the cause of the delay was not

the airline's fault (i.e. the result of Extraordinary circumstances). there is no

requirementto pay that compensation.

The definition of what amounts to "Extraordinary Circumstances" is givenin paragraph

14 of the preamble of the Regulation, which states:

':..obligations on operating air carriers should be limited or excluded in cases

where an event has been caused by extraordinary circumstances which could

no thave been avoided even if all reasonable measures had been taken. Such

circumstances may, in particular, occur in cases of political instability,

meteorological conditions incompatible with the operation of the flight

concerned,security risks, unexpected flight safety shortcomings and strikes

that affect the operation ofan operating air carrier."

In case of your flight. the cause of the delay was due to a delay to "unexpected flight

safety shortcoming" arising from the discovery of a technical defect that doesn't fall

into the category of something that was or ought to have been discovered during

routine maintenance.

To some there is a fundamental misunderstanding around whether technical problems

can constitute Extraordinary Circumstances with many believing that no technical

problems can fall into that category at all. This is simply not true, as confirmed bythe

UEU itself; their decision of Wallentin-Hermann v Alitalia provides someclarity.

In that particular case, the passengers were due to travel on a flight betweenVienna.
Austria and Brindisi, Italy, via Rome. Unfortunately, five minutes before the intended
departure time, the customers were told the flight had been cancelled. The reason for
the cancellation was that a complex engine defect in the turbine had been discovered
the day before during a routine maintenance check.
Indetermining whether the cause of the -unexpected flight safety shortcomings'" could
beheld as Extraordinary Circumstances, the Court stated in paragraph 24 & 25 the
following:
"24.In the light ofthe specific conditions in which carriage by air takes place
and the degree oftechnological sophistication of aircraft it must be stated
that air carriers are confronted as a matter of course in the exercise of their
activity with various technical problems to which the operation of thoseaircraft
inevitably gives rise. It is moreover in order to avoid such problems and to take
precautions against incidents compromising flight safety that those aircraft
~are subject to regular checks-which are particularly strict, and which are part
and parcel ofthe standard operating conditions of air transport undertakings.
There solution of a technical problem caused by failure to maintain an aircraft
must therefore be regarded as inherent in the normal exercise of an aircarrier's
activity.
25.Consequently,technicol problems. which come to light during maintenance
of aircraft or on account of failure to carry out such maintenance cannot
constitute,in themselves. "ExtraordinaryCircumstances-underArticle 5(3)of
RegulationNo 26112004 .:
It was therefore held that...in the event that a technical fault was found during
maintenance,or ought reasonably~ to have been found during maintance resulting cancellation may no tamount to Extraordinary Circumstances
This approach makes sense as we agree that it may not be right that a passenger ought to bear the burden of the requirement to repair a technical problem that is
detected during routine maintenance. But it flows from that conclusion that a problem
that arises outside of regular maintenance and which is not the result of poor
Maintenance can't be inherent in the operation of an air carrier and therefore will be
Extraordinary Circumstances.
Maintenance of the Thomson fleet of aircraft is conducted to some of the highest
standards in the world. It is; another area that we take _extremely seriously.as it .affects __ ~ -
safety,cost and on-time performance. Our approach is to have a regime that results in
a schedule of assessment, service and part replacement which is significantly better
than the manufacturer's recommendations.
In the case of the issue that affected your aircraft, the technical problem was detected
just prior to its departure and was not something that either ought to have been
detected during routine maintenance or which occurred as a result of the failure of
Thomson to implement a satisfactory maintenance scheme or fail to implement that
scheme appropriately. Therefore, the circumstances are not of a kind which would fall
outside of the definition of Extraordinary Circumstances.
At Thomson Airways we really value our ability to meet customers’ expectations.We
already invest significantly in operational initiative’s. engineering excellence and having a
modern fleet; they all help to keep the frequency and duration of delays to an absolute
minimum.

Observing the purpose and spirit of the Regulation and doing so while continuing to
deliver real value to our customers is a challenge that can only be met by applying the
rules robustly and not making payments where the delay is not our fault Were we not
to apply the rules in the way that we must, prices would need to rise for you and all
other customers.
Thank you for taking the time to contact us. We sincerely hope, and are doing all we
reasonably can to ensure, that your future flights with Thomson Airways arrive on time.
I'm pleased to see that welfare was provided during your delay in the form of light
refreshment vouchers and overnight accommodation, however as I'm sure you can
appreciate,the reason for your delay was as a result of an event beyond our control. As
the delay to your flight was caused by extraordinary circumstances, the Regulation
does not require us to make a payment.
I realise this isn't the outcome you were hoping for and I hope my letter goessomeway
To further clarifying the legislation and our obligation as an airline.
Thank you for taking the time to contact us.
Yours sincerely,
,
ChivooneKoranteng
FlightCairns Advisor
AfterTravel Customer Support
08448711774
:exclamati

matt2baker

pymers wrote: »

hi all got this reply from Thomson a bit long I am afraid but this is what they sent me don't know were to go from here do I give up !!!!

What a surprise!! You surely didn't think that you had that letter exclusively written and unique to you did you?! It's almost a replica of the one my son had this weekend. The main difference is that you had some actual detail of the technical fault - he had nothing other a mention in passing of a technical fault with the aircraft on the preceding flight.

Interestingly, in your letter it's stated that the crew became 'out of hours'. It later mentions that an alternative aircraft was sourced to operate your flight which departed the following day at the earliest opportunity. as soon as the crew were back in hour’s - does this mean that they could have had a replacement aircraft sooner, but no other crew to operate it? Hmmm...........and what are these C Ducts then? Worth a little investigation or questioning, as there was no mention of sourcing replacement parts, or the timescale to replace/repair them.

In my opinion, I wouldn't give up until you think they are telling the truth - either in a letter or in court. Ask them for a reply to your questions, why you were not given anything in writing at the time of the delay, and give them 14 days to do so.

Vauban

pymers wrote: »

hi all got this reply from Thomson a bit long I am afraid but this is what they sent me don't know were to go from here do I give up !!!!

Flight to Mombasa didn't depart as scheduled.

... [Blah blah blah blah lie blah]

Thank you for taking the time to contact us.
Yours sincerely,
,
ChivooneKoranten

This is just drivel. They have no case here, but are clearly writing extensively solely in order to put folk off. And it's effective - I'll give them that. But it cannot hide the fact that you are due compensation by law, and that nothing the airline has written provides an exemption. But you are almost certainly going to have to start court action before you will be taken seriously.

Read the FAQs on page one of this thread, including the link "What to do next".