Flight delay and cancellation compensation, Tui/Thomson ONLY

bazaar_2

MGOR wrote: »

These are interesting and I wonder if Thomson have been delayinf responses knowing these are due out? It will also be interesting to see if they do further investigations on claims and discover 'new' reasons for delay to fit in with these guidelines!

I've just submitted a claim via N1 form for a 24 hour delay due to a failure of both pilot headsets. They carry only 1 spare so couldn't fly and had to wait for replacements to be flown from UK. There where 5 other Thomson planes on the ground at the same time including at least 2 others of the same type B737. Why they couldn't take a spare from one of the other aircraft is beyond me. I would suspect that the headsets are also generic to all planes in the fleet (all Boeing)

Any views on whether this delay falls within the new definition of extraordinary circumstances would be appreciated.

youve pretty much answered your own question, did they do all they reasonably could to avoid the delay, such as 'borrowing a spare set of headsets from one of their other planes? NOPE.
Looks good from where im sitting

2013archers

Laura18 wrote: »

I recently submitted my claim on the 16th July with Bott and Co through EU Claim and they have taken on my case by the 17th July they had sent their first letter and yesterday I received a letter from TUI dated 17th July (probably back dated) saying they are now investigating my claim and this is after I received a letter from them on the 4th July saying it was their final position in the matter I had no claim because of their 2 year rule - I would speak to Bott and Co again

Laura EUClaim (Bott & Co) are only interested if you can make it very easy for them i.e., documentation etc.,

Orange_Smartie

bazaar wrote: »

most of these defence will be generic, note the grammatical error in point 1. thats a cut and paste job.
for the rest of their defence, its a thomson flight number, so was contracted from Monarch . why? because they had problems in their fleet. OK, so where in their fleet? They dont say do they.
They contracted the flight and so they in turn should claim from Monarch.( my bet is they probably have anyway). So you ask for the details surrounding this issue.
IE, did they as part of their contract with Monarch receive any compensation for the delay? Youve got to ask the pertinent questions from their defence. theres loads to ask.
Oh and by the way, you dont have to wait until your day in court to ask these questions.
Civil Procedure Rules are there to try to avoid court, its up to you if you want to use them at this stage. I am.

I am not worried one bit by their Defence. I know my contract is with Thomson Airways (simple contract law).

I have also made a subject access request which has been ignored and I put them on notice last week that unless they comply with my request, I will seek a court order to that effect.

I know that they have copies of correspondence that they sent to me some weeks before the flight changing my original flight time. I also know they have the details of my original booking. I know that they did not have a flight arranged for our outward flight because despite paying to pre-book seats we weren't able to because they had nothing sorted. This was weeks before we flew.

They also admit in their Defence that they sub chartered a flight from Monarch prior to 21 December and that they knew that that flight would have a delay of 2 hours 25 mins (at least). They did not supply a flight fit for the entire journey as we had to refuel in the Azures which delayed us even further. They knew this would happen weeks before the flight.

I am confident that this is why they are delaying on the SAC.

I won't be deterred because I am well versed in the law and the litigation process so I will be seeking further information - my questions are extensive!!!!!!!

darkwarrior

So I have received Thomsons defence.

1) It is strictly denied that the Defendant is liable for compensation under what is assumed to be the Denied Boarding Regulations 2004 (EC261/2004) ('the regulations')

2) It is admitted and averred that the Airline operated Flight "Flight No" on the 15th June 2007 from "Departure", to "Destination" ('the flight')

3) The claimant is required to prove that he travelled on the flight.

4) BY reason of Article 3 of EC Regulation 2027 as amended as a matter of English law, the liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability.

5) The Montreal Convention deals with the liability of the carrier, including (by its Article 19), for damage occasioned by delay in the carriage by air of passengers and baggage.

6) As a matter of English Law, where it is applicable, the Montreal Convention sets out the condititons under which claims to establish liability, if disputed, are to be made.

7) One such condition set out by the Montreal Convention is its Article 35 which provides that:

"(1) The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
(2) The method of calculating that period that period shall be determined by the law of the court, seised of the case."

8) In the premises: Any claim for 261 Delay Compensation is subject to the conditions set by the Montreal Convention, including that contained in its Article 35, in that it is a claim against a Community air carrier (the Defendant) in respect of the delay in the carriage by air of a passenger (MY NAME). And (yes it does end like that)

9) As a matter of English law any right to damages in respect of 261 Delay Compensation was therefore extinguished if no action was brought against the Defendant in respect of it within two years of the 15th June 2007. No such action was brought within that two year period (this action having been issued on 7th June 2013). Accordingly, the current proceedings fail to disclose a reasonable cause of action and/or are an abuse of the Court's process.

Further and in the alternative

10) It will be said by the Defendant that the aircraft intended to operation the Claimant's Inbound Flight was subject to a lightning strike on its previous sector. This resulted in the aircraft being diverted to Luton for inspection. An alternative aircraft was sought to operate the Claimant's Inbound flight as soon as possible.

11) This resulted in a delay to the departure of the Claiman't's Inbound Flight

12) It is averred that the matters pleaded in Paragraphs 10 above were caused by extraordinary circumstnaces which could not have been avoided even if all reasonable measured had been taken and that, pursuant to Article 5(3) of the Denied Boarding Regulations, no compensation is payable in the circumstances.

13) For the reasons set out above, the claim for compensation of 200 Euros per passenger pursuant to the Denied Boarding Regulations is denied.

14) THe claimant is put to strict proof as of their loss.

15) As to the contingent claim for interest, it is denied that 8% is an appropriate interest rate.

The defendant beleives the facts stated in this defence to be true

The bold is important because it isn't true. I've asked for £320 not 200 Euros and I didn't ask for interest on it.

I'm pretty sure people have said things like lightning are not considered exceptional circumstances, but where do I go from here now? I was emailed an n180 to fill out as well. Thanks for reading.

matt2baker

bazaar wrote: »

hi James,
I want a pair of those rosey glasses your wearing.:) have a good weekend

Me too!!

Gromit22

Please can someone assist re Thomson claim. I originally submitted a claim in February 2008, quoting EC reg 261/2004 and was turned down on reason of 'packaged holidays not covered'. Thankfully, I had kept correspondence and resubmitted in May 2013. I have just received decline again re 'extraordinary....'. We experienced 42 hour delay in Jamaica(TOM6184 - to Gatwick). There was a panel missing on undercarriage door. I am prepared to pursue but have I valid claim? So grateful for help please.

romanby1

Gromit22 wrote: »

Please can someone assist re Thomson claim. I originally submitted a claim in February 2008, quoting EC reg 261/2004 and was turned down on reason of 'packaged holidays not covered'. Thankfully, I had kept correspondence and resubmitted in May 2013. I have just received decline again re 'extraordinary....'. We experienced 42 hour delay in Jamaica(TOM6184 - to Gatwick). There was a panel missing on undercarriage door. I am prepared to pursue but have I valid claim? So grateful for help please.

Yes.
I hope you were accommodated in a hotel and got the necessary "Duty of care" etc. D/L and read the regulation also the Sturgeon and Wallentin - Herman judgements.
Obviously Thomsons did not make every effort to reduce your delay, this would ahve nbeen for "Operational reasons."
Send a NBA letter with a 14-21 day response time asking for details of the cause of the delay and why it took them so sorting to sort it out also stating you will be issuing a claim if they do not respond. You will no doubt get the usual crap but ignore it.

blondmark

Orange_Smartie wrote: »

... my contract is with Thomson Airways.

I have also made a subject access request which has been ignored and I put them on notice last week that unless they comply with my request, I will seek a court order to that effect.

A few pointers that may be relevant - a claim for severe delay isn't a claim in contract but is based on a statutory entitlement for compensation. The Regulation stipulates that liability rests with the operating air carrier which is not always the same party you contracted with. But by all means continue your claim against Thomson if they were the operating air carrier.

If a subject access request is ignored by a data controller, the next step would normally be to report the failure to the Information Commissioner. Although you could apply for injunctive relief through the courts, this is unlikely to be heard in the small claims track and may expose you to costs if the Court considers a simple referral to the IC would suffice.

blondmark

darkwarrior wrote: »

So I have received Thomsons defence.

The bold is important because it isn't true. I've asked for £320 not 200 Euros and I didn't ask for interest on it.

I'm pretty sure people have said things like lightning are not considered exceptional circumstances, but where do I go from here now? I was emailed an n180 to fill out as well. Thanks for reading.

Thomson's defence as it stands is defective as it merely purports to deny claims for 200 Euros per person but does not deny the claims you made for £320 per person.

Also the following para in their defence is inappropriate:

"14) The claimant is put to strict proof as of their loss."

Claims for severe delay under 261/2004 are not claims for loss; they are statutory claims for compensation.

blondmark

Gromit22 wrote: »

Please can someone assist re Thomson claim. I originally submitted a claim in February 2008, quoting EC reg 261/2004 and was turned down on reason of 'packaged holidays not covered'. Thankfully, I had kept correspondence and resubmitted in May 2013. I have just received decline again re 'extraordinary....'. We experienced 42 hour delay in Jamaica(TOM6184 - to Gatwick). There was a panel missing on undercarriage door. I am prepared to pursue but have I valid claim? So grateful for help please.

Well the initial defence of package holidays being excluded is a lie.

The subsequent defence of technical difficulties comes under Wallentin-Hermann. If the undercarriage door was missing due to factors inherent in the normal activities of an air carrier, then a defence of extraordinary circumstances would not be available.

You should write to Thomson asking for a full and detailed report on the reason for the delay to be sent to you within 14 days, failing which you will issue proceedings.

Since they are unlikely to cooperate, you should get ready to sue.