Flight delay and cancellation compensation, Tui/Thomson ONLY

blondmark

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 !!!!

A 'C Duct' is apparently one of THESE. This isn't a sealed unit or one that would never be expected to go wrong. This is another part like any other that would reasonably be expected to wear out and require routine replacement. In the language of Wallentin-Hermann a fault arising in the C Duct would be 'inherent in the normal exercise of an air carrier’s activity'.

As such, a routine failure of the C Duct would not constitute extraordinary circumstances.

Then there is the issue of the air carrier's failure to deploy standby crew to take over immediately from the crew that went out of hours. Having failed to take all reasonable measures to minimise the effect of the delay they caused, they cannot possibly sustain a defence of ECs.

You should write them a Letter Before Claim warning of legal action in two weeks if they do not settle your claim for compensation.

delvey

Just to update, seems I did get a letter after the initial one, Thomson claiming to defend the case. The 28th day is tomorrow, so should I file a default judgement? If so how do I do this?

Mark2spark

dp2603 wrote: »

Received Thomson defence today.

Paragraphs 1-9 are the usual wordings regarding proof and 2 year time limit and it then states that

In the alternative, the aircraft intended to operate the claimants flight (G-YH) was subject to a reactionary delay due to industrial action by the French Air Traffic Controllers along with severe weather conditions. The industrial action carried out by the French ATC meant that many morning departures for Spain were delayed by up to 2 hours. Prior to the claimants flight, Aircraft G-YH was scheduled to make a return flight from Birmingham to Alicante, Spain. That flight (TOM 7214) was due to depart for Alicante at 06.05 on 15 June 2010, but as a result of the industrial action, was unable to depart until 07.52. Flight TOM 7214 then had to divert to Valencia due to localised thunderstorms in Alicante. These extraordinary circumstances resulted in aircraft G-YH departing from Alicante back to Birmingham with a delay of 5 hours and 29 minutes. This resulted in a delay to the departure of the claimants flight to Antalya, Turkey of 5 hours and 5 minutes.

It is averred that the matters above were caused by extraordinary circumstances beyond the control of the claimant????. As such, pursuant to Article 5(3) of the Denied Boarding Regulations, no compensation is payable in these circumstances.

Any advice would be really appreciated

It's quite clear in the EU261 regulation that weather conditions can only be EC's on the actual flight, ie your flight.

The wording goes;
"As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases
where an event has been caused by extraordinary
circumstances which could not have 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 of an operating air carrier.

Mark2spark

matt2baker wrote: »

Extract from.....

REGULATION (EC) No 261/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 11 February 2004

2. An operating air carrier denying boarding or cancelling a
flight shall provide each passenger affected with a written
notice setting out the rules for compensation and assistance in
line with this Regulation. It shall also provide each passenger
affected by a delay of at least two hours with an equivalent
notice. The contact details of the national designated body
referred to in Article 16 shall also be given to the passenger in
written form.

I've never been given any notices by (Thomsons) for my delays.....nor seen any queries on this thread either. Have I missed out, or been shielded from knowledge about making a claim?

Airlines get out of this by claiming that the regs are displayed publicly by the check in desks, I also think some airlines have a www version of it under the T & C's for on-line bookers.

Mark2spark

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.

I've deleted the rest as it's the same old same old drivel.

NBA and then court. Don't waste time IMO writing back and forth anymore.

panholio

Guys,

Really need your help - Issued a claim through MCOL to TUI Ltd on the 11/7 following an ignored LBA. They have issued an "acknowledgement of service" on the 17/7.

I think I have made the fatal number of people in the party mistake. There was just two of us (myself and my partner) but I only listed my name in the claimants on the MCOL form - I just mentioned that there were "2 in the party" on the particulars.

What is my best course of action?

Make three copies and amend as set out in a previous post? Call the courts?

Puttytat

I have just received a letter from Thomson stating that due to EC (lightning striking another plane in the fleet causing a knock on effect) that we are not entitled to compensation. Reading through the stickies and previous posts, I am fairly certain that this should not affect our entitlement as it was not our aircraft struck by lightning. They have also managed to get our flight number wrong so their investigation is flawed at best.


All help and advice is much appreciated.

kandm_2

Hi all
after a bit of advice if anyone could help ..
I filed the MCOL for myself & party of 5 others (2 children) and received the thomson defence which does aknowledge that the claim is for myself & 5 others, however I have since read that I shouldn't have claimed via MCOL but N1.
My case has been transfered to my local county court with a hearing date set in September. I telephoned them to ask how I could go about changing the claimant details to show all names in my party & they really couldnt tell me. They said I needed legal advice as the case involved children as all monies received for them would need to go into trust? and that without legal advice i wouldn't be able to amend the forms? Surely this isn't correct?
Could I submit a claim form N1 & pay an amendment fee? or am I going to have to either just go with the case I have got or completely start again?
Any help will be very much appreciated

Basingstoke_Betty

panholio wrote: »

Guys,

Really need your help - Issued a claim through MCOL to TUI Ltd on the 11/7 following an ignored LBA. They have issued an "acknowledgement of service" on the 17/7.

I think I have made the fatal number of people in the party mistake. There was just two of us (myself and my partner) but I only listed my name in the claimants on the MCOL form - I just mentioned that there were "2 in the party" on the particulars.

What is my best course of action?

Make three copies and amend as set out in a previous post? Call the courts?

Hi - I'm in the same boat here - although we are at allocation stage so a bit further on. No one, either MCOL or Thomson have yet mentioned this - do I need to action this?
BB

gagsy999

terryuk73 wrote: »

Just an update on my case.....

I forwarded my court bundle to Thomson, which they received Friday. Surprise, Surprise Saturday morning I have a letter from Mr Moran offering me full settlement including interest. :j

For reference the flight was TOM039 which was delayed by 12hrs 48min on 5th Nov 12.

In the court bundle I included:
All Correspondence between Thomson and me (including the without prejudice letters as they were not offers to settle and should not have been marked as such)

All Court paperwork including the N1

Wallentin-Herman V Alitalia
EC 261/2004
Sturgeon and Others V Air France
Witness Statement from me.

I've included a copy of my witness statement, as it may prove useful to someone on here (Just make sure the comments apply before blindly copy and pasting though).



1) Thisstatement relates to denied bording on flight TOM039 which was scheduled todepart from CancunAirport at 22:30GMT on the 5th November 2012.The flight actually departed at 11:18hrs GMT on the 6th November with a totaldelay of 12hrs and 48 minutes, and subsequent claim under Regulation 261/2004

On flight TOM039were both ****** and ******. On arrival at Gatwick airport ******* was handed aletter by a representative of the airline. This can be exhibited at ***/1 Thisshows the reason of the delay

"Yourflight could not operate until the following day due to an operational issuewith the crews legally permitted working hours"

2).*****contacted the defendant on the 7th November 2012 requesting compensation forthe delayed flight however did not receive a response until January requestingthat a claims form be completed. ****** sent a further letter before actiongiving the defendant 21 days to respond to the claim before legal action wastaken. On the 18 March 2013 the defendant responded stating thatthey had concluded their investigation and gave the following reason for thedelay

"Yourflight was delayed due to the aircraft that was scheduled to service yourflight being hit by lightning and needing a window replacing and therefore anew aircraft was used to replace it. This caused a knock on effect on yourflight which subsequently led to your delay"


Paragraph 6 ofthe defence filed states " That the aircraft which was scheduled tooperate the claimants flight, aircraft registration G-OBYG was subject to anunexpected technical fault namely a malfunctioning toilet caused by a blockageas a result of a sanitary product having been disposed of by a previouspassenger. This resulted in a delay in the departure of the aircraft fromLondon Gatwick to Cancun.

With referenceto paragraph 6; On the flight to Cancun (TOM062) which Mr****** and Miss ****were on this exact same fault occurred, namely a blocked toilet which resultedin the Captain requesting passengers refrain from taking in excess liquid orfrom using the remaining toilets unless absolutely necessary otherwise theplane would need to be diverted to the United States mid flight for repair.

The judgementfrom WALLENTIN-HERMANN v ALITALIA Case C-549/07 provides guidance on what wouldbe an extenuating circumstance

Article 5(3) ofRegulation (EC) No 261/2004 of the European Parliament and of the Council of 11February 2004 established common rules on compensation and assistance topassengers in the event of denied boarding and of cancellation or long delay offlights, and repealing Regulation (EEC) No 295/91, must be interpreted asmeaning that a technical problem in an aircraft which leads to the cancellationof a flight is not covered by the concept of ‘extraordinary circumstances’within the meaning of that provision, unless that problem stems from events which,by their nature or origin, are not inherent in the normal exercise of theactivity of the air carrier concerned and are beyond its actual control. TheConvention for the Unification of Certain Rules for International Carriage byAir, concluded in Montreal on 28 May 1999, is not decisive for the interpretationof the grounds of exemption under Article 5(3) of Regulation No 261/2004.

The frequency of the technical problems experienced by an air carrier is not initself a factor from which the presence or absence of ‘extraordinarycircumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 canbe concluded.

The fact that an air carrier has complied with the minimum rules on maintenanceof an aircraft cannot in itself suffice to establish that that carrier hastaken ‘all reasonable measures’ within the meaning of Article 5(3) ofRegulation No 261/2004 and, therefore, to relieve that carrier of itsobligation to pay compensation provided for by Articles 5(1)(c) and 7(1) ofthat regulation.



3).STURGEON& OTHERS v AIR FRANCE Cases C-402/07 & C-432/07 provides furtherguidance on what is not an extraordinary circumstance:



Articles 2(l), 5and 6 of Regulation (EC) No 261/2004 of the European Parliament and of theCouncil of 11 February 2004 establishing common rules on compensation andassistance to passengers in the event of denied boarding and of cancellation orlong delay of flights, and repealing Regulation (EEC) No 295/91, must beinterpreted as meaning that a flight which is delayed, irrespective of theduration of the delay, even if it is long, cannot be regarded as cancelledwhere the flight is operated in accordance with the air carrier’s originalplanning.
Articles 5, 6 and 7 of Regulation No 261/2004 must be interpreted as meaning thatpassengers whose flights are delayed may be treated, for the purposes of theapplication of the right to compensation, as passengers whose flights arecancelled and they may thus rely on the right to compensation laid down inArticle 7 of the regulation where they suffer, on account of a flight delay, aloss of time equal to or in excess of three hours, that is, where they reachtheir final destination three hours or more after the arrival time originallyscheduled by the air carrier. Such a delay does not, however, entitlepassengers to compensation if the air carrier can prove that the long delay wascaused by extraordinary circumstances which could not have been avoided even ifall reasonable measures had been taken, namely circumstances beyond the actualcontrol of the air carrier.
Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that atechnical problem in an aircraft which leads to the cancellation or delay of aflight is not covered by the concept of ‘extraordinary circumstances’ withinthe meaning of that provision, unless that problem stems from events which, bytheir nature or origin, are not inherent in the normal exercise of the activityof the air carrier concerned and are beyond its actual control.



4).It will besaid that an adverse inference should be drawn to the fact that the defence haschanged it reason for the delay on two occasions. It is also submitted that theDefendant has failed to prove that the cancellation has been caused byextraordinary circumstances or that either of these faults actually occurred.No detail is given in the defence of the circumstances which lead to thecancellation.of Mr ******and Miss ****** flight.



It would also besaid that given the exact same fault occurred on Mr ****** & Miss ******flight to Cancun that a fault of this nature is inherentin the normal exercise of the activity of the Air Carrier.

In relation toparagraph 3 of the defence statement; All responses in relation to the reasonfor delay have been by TUI Travel, who are the owners of the plane both Mr *****& Miss ***** travelled on which displays the TUI logo on its tail, and assuch it is submitted that TUI is the correct carrier in this instance



This statementconsisting of ..... pages each signed byme is true to the best of my knowledge and belief I make it knowing that, ifit is tendered in evidence, I shall be liable to prosecution if I have wilfullystated anything in it which I know to be false or do not believe to be true

You will see that I showed the defendant as TUI Travel. Obviously this isn't correct, but I decided to run with it anyway as you can see by the argument above countering the defence statement filed.

Hopefully this may help someone out who doesn't have the time to change defendants (or doesn't want too) as ultimately they will cave in at the last hurdle anyway.


For those struggling with the court side of things I would suggest you read the FAQ at the beginning of the thread.

This book from amazon helped me prepare for court "Small Claims Procedure in the County Court"

Its probably the best £18 I've spent as it laid the whole process out for me including what to expect if we had actually made it to court.

Hi terry73
Im just reading your blog from 14/07/2013 im just filling my n1 court form in did you submit your form or did you just send it off to Thomson first to see if they folded? many thanks