Flight delay and cancellation compensation, Tui/Thomson ONLY

Mark2spark

happychap7 wrote: »

Hi
Just had Thomson's defence statement. I am fairly confident having just skim read it but would like some views. It contains the usual, prove you were on the flight and its over 2 years ago so I'm too late in claiming.
In the alternative they state ' the defence to the inbound flight is an unforeseeable technical issue prior to departure. The aircraft scheduled to be used on this flight required brake sensor maintenance. As a result an alternative aircraft was sourced. This caused the delay.'
In the alternative to the outbound flight they have a whole paragraph about the ash cloud in 2010 and it resulted in the largest shut down since World War 2 etc etc. They then state ' Subsequent to the volcanic ash an operation involving utilisation all of the defendant flight deck crew was necessary to bring home stranded passengers. As a result the flight deck crew suffered high duty hours. This resulted in a delay to the departure of the claimants outbound flight.
I think they've got the inbound/outbound flights muddled up as at the time the excuse for the outbound delay was scheduled maintenance overrun and the inbound was operational disruption within the Thomson Airways fleet. The outbound flight was the 21/05/10 and although I will do some further research I think airspace had been open for over a week at least at this point.
Any views would be appreciated.

So, an operational decision was made to the detriment of your flight operating on time?
Did they hire in agency cabin crew?

blondmark

davidbrian55 wrote: »

2 years, again!

thomson are saying 'CJEU at para 32 of More is the courts reasoning. It is stricly denied it amounts to its ruling.
They then comment on more, nelson and sturgeon,

in conclusion, domestic law will determine limitation
montreal says 2 years.

Well I would be inclined to agree that para 32 of More is the court's reasoning and not its judgment. So let's go straight to the judgment instead:

Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that the time-limits for bringing actions for compensation under Articles 5 and 7 of that regulation are determined in accordance with the rules of each Member State on the limitation of actions.

Thomson has mischievously adopted the erroneous position that the prescription period under the Montreal Convention should apply, there extinguishing the right to bring proceedings after two years. However, the CJEU did, in fact, rule in the Joan Cuadrench More v KLM case that it is national law, and not the Convention, which will dictate the relevant limitation period. This is consistent with the CJEU’s previous view that Regulation 261 falls entirely outside the scope of the Convention.

davidbrian55

blondmark wrote: »

Well I would be inclined to agree that para 32 of More is the court's reasoning and not its judgment. So let's go straight to the judgment instead:

Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that the time-limits for bringing actions for compensation under Articles 5 and 7 of that regulation are determined in accordance with the rules of each Member State on the limitation of actions.

Thomson has mischievously adopted the erroneous position that the prescription period under the Montreal Convention should apply, there extinguishing the right to bring proceedings after two years. However, the CJEU did, in fact, rule in the Joan Cuadrench More v KLM case that it is national law, and not the Convention, which will dictate the relevant limitation period. This is consistent with the CJEU’s previous view that Regulation 261 falls entirely outside the scope of the Convention.

agree fully, just shocked that dear thomson are going through all this. What do thomson customers think? I only hope they have lost some trade, I didn't book with them this year and unlikely to do so ever again.

and thanks to all those on here supporting these claims. You all know who you are and far too many to thank personally!

blondmark

Mark2spark wrote: »

Blondmark, have you got the link please where it says that judges shouldn't be bound to accept late defence submissions as they are out of time please?

I'll include it in the faq's if there's a printout people can use.

It's just i've observed some judges doing the pompous I'll accept what I want, it's MY court' attitude.
For me, I would point out the timeframe and then ask that the transcript records that out of time defences have been allowed.
I'd follow that up - if it were me - with a piece about the bit where judges are meant to have more time and patience with LIP's
(Litigants In Person)

Part 16 of the Civil Procedure Rules is HERE

This isn't so much to do with a judge's discretion to accept late submissions, as:

1. the airline's failure to state which of the allegations in the your claim it denies;

2. the airline's failure to state its own version of events in its original defence where it differs from details in the claim you made;

3. the airline having effectively admitted any aspect of your claim that they have failed to deal with, whether they like it or not.

So if a judge allows a late defence that is not contained in the original Defence which contradicts a statement in your claim that their original Defence does not address, then you may appeal on a point of law.

blondmark

Mark2spark wrote: »

I'll include it in the faq's if there's a printout people can use.

While you're there you may want to add an important exception to that six year rule for bringing claims that is assumed to be cast in stone.

If an airline conceals an important fact about your claim that you later discover (and they often do) then the limitation period is postponed until you discover it (or should have discovered it).

See the Limitation Act 1980 HERE

s. 32 Postponement of limitation period in case of fraud, concealment or mistake.

Under part 1. (b), if any fact relevant to your claim for delay has been deliberately concealed from you by the airline, the period of limitation shall not begin to run until you discovered the concealment or could with reasonable diligence have discovered it.

bripar

happychap7 wrote: »

Hi
Just had Thomson's defence statement. I am fairly confident having just skim read it but would like some views. It contains the usual, prove you were on the flight and its over 2 years ago so I'm too late in claiming.
In the alternative they state ' the defence to the inbound flight is an unforeseeable technical issue prior to departure. The aircraft scheduled to be used on this flight required brake sensor maintenance. As a result an alternative aircraft was sourced. This caused the delay.'
In the alternative to the outbound flight they have a whole paragraph about the ash cloud in 2010 and it resulted in the largest shut down since World War 2 etc etc. They then state ' Subsequent to the volcanic ash an operation involving utilisation all of the defendant flight deck crew was necessary to bring home stranded passengers. As a result the flight deck crew suffered high duty hours. This resulted in a delay to the departure of the claimants outbound flight.
I think they've got the inbound/outbound flights muddled up as at the time the excuse for the outbound delay was scheduled maintenance overrun and the inbound was operational disruption within the Thomson Airways fleet. The outbound flight was the 21/05/10 and although I will do some further research I think airspace had been open for over a week at least at this point.
Any views would be appreciated.

Can I suggest you look at The EU Court Ruling 4th Oct 2012 Finnair Oyj, Timy Lassooy where it was ruled that the knock on effect from an extraordinary circumstance did NOT exempt the carrier from its obligation under Regulation 261/2004. An extraordinary circumstance refers to a "particular aircraft" on a "particular day" and not every aircraft after that extraordinary event ad infinitum.

bazaar_2

blondmark wrote: »

In its quest to deny consumers their legal rights, Thomson often spring a new defence at the last minute that is not contained in their original Defence.

For example your clam may be that your flight landed 4 hours late, but if Thomson did not deny this in their original Defence, they cannot later defend the claim by saying it arrived only 2 hours late (they actually tried this on with me) because:

1. CPR 16.5(1)(a) provides that “In his defence, the defendant must state which of the allegations in the particulars of claim he denies”.

2. CPR 16.5(2)(b) requires the Defendant to state his own version of events in the Defence where it differs from that given by the Claimant.

3. CPR 16.5(5) states that a defendant who fails to deal with an allegation shall be taken to admit that allegation.

gotta love the CPR they are your friend

2521ash

Hi,

I'm getting very confused with the principles of the claim...

I was flying from Birimingham to Taba (Egypt) when the plane was delayed then cancelled. We were put up in a local hotel and flew the following day.

As it was part of a package would it be eligible? The MSE article says no but the first page of this thread says yes!

It was TOM 382 on the 6/9/11

matt2baker

Quote:
Originally Posted by matt2baker

BTW, the radio prog will only be on the BBC i-player for 5 more days......

Mark2spark wrote: »

Link please?

http://www.bbc.co.uk/iplayer/episode/b037l14g/Shelagh_Fogarty_01_08_2013/

(38 mins into the programme)

laticsforlife

Mark2spark wrote: »

:rotfl: Did you 'find' it in the FAQ's?
Under the big red: '6 years to claim'
it says:

European court press release on time limits to claim

which is a link to the same press release you have posted.

Whilst you're to be applauded :T for posting the link, it just shows how others aren't making full use of the FAQ's IMO.

It's pretty much all there people.

lol, oh carp, I haven't read the faq's for months now since I am at a stage further on.