Flight delay and cancellation compensation, Tui/Thomson ONLY

Vauban

NewtAbbo wrote: »

Hi all,

There have been several references to using 'particular aircraft on a particular day' to counter a defence of knock-on effects - but Reading through 261/2004 I have only seen it mentioned in note 15 - specifically in relation to an 'air traffic management decision'.

Does this prevent it being successfully used against a weather related knock-on?

Thanks.

But how exactly is weather described in the Regulation as an "extraordinary circumstance"? ...

NewtAbbo

Thanks for the reply. It was actually a lightning strike on a previous flight (presumably the previous day as we had an early flight), not a bad weather grounding. I think that makes it a bit of a difficult one, as some seem to think that lightning is a difficult one to argue whatever the timing.

Thanks.

bripar

NewtAbbo wrote: »

Hi all,

There have been several references to using 'particular aircraft on a particular day' to counter a defence of knock-on effects - but Reading through 261/2004 I have only seen it mentioned in note 15 - specifically in relation to an 'air traffic management decision'.

Does this prevent it being successfully used against a weather related knock-on?

Thanks.

The EU Court Ruling 4th Oct 2012 Finnair Oyj, Timy Lassooy ruled that the knock on effect from an extraordinary circumstance did NOT exempt the carrier from its obligation under Regulation 261/2004. This knock on effect originated from a strike at an airport. Hope this helps

Vauban

bripar wrote: »

The EU Court Ruling 4th Oct 2012 Finnair Oyj, Timy Lassooy ruled that the knock on effect from an extraordinary circumstance did NOT exempt the carrier from its obligation under Regulation 261/2004. This knock on effect originated from a strike at an airport. Hope this helps

Actually it didn't. But people keep writing it, so no doubt we all believe it's true ...

laticsforlife

Indeed, several people have suggested NOTciting Finnair as it does not assist your case.

I have not used it so far, but I too had the same question about the words "particular flight on a particular day" that appears in note 15 of the Regulation.

I hope I have enough without having to refer to it.

Vauban

Look, I am not a lawyer. But I've spent a fair bit of time reading all these judgements. My problem with Finnair is that it relates to denied boarding. And that is critical to the legal argument, which was basically that an airline couldn't use a previous EC that had caused rescheduling to avoid compensation for denying boarding to some people. This was because, by allowing some people on the aircraft and denying others, the airline would be demonstrating unequal treatment of passengers. In a delay scenario, that principle doesnt apply: everyone is treated equally badly!

But there is nothing to stop you from citing the "particular aircraft on a particular day" point, which comes from the Regulation itself.

blondmark

In my view these arguments are unnecessarily polarised. Legal interpretation by analogy is not contingent upon the strict application of identical facts. I see Finnair Oyj v Timy Lassooy as another argument in the alternative which is an excellent example of how ECJ think in their reasoning.

I've pointed out before that case law operates by analogy. If your case has similar (not necessarily identical) facts to another decided case, then you can extrapolate that legal principle and apply it to your own case. The job of your opponent is to distinguish your case from that cited and argue that it's so different that there is no analogy.

I accept that on a purely literal reading of this case, it is, as others here point out, about ECs not being available as a defence if they only directly affected a previous flight which itself had a knock-on effect on a later flight in relation to denied boarding.

But the point is that courts rarely adopt a strict black letter law approach to statutory interpretation. More typically they adopt the so called 'mischief rule' or 'purposive rule' which interprets law from the perspective of the intention of the legislation - to provide greater rights and compensation to air travellers who become stranded. That is those who are denied boarding, or whose flights are cancelled or severely delayed. That in essence is what your rights under the regulation are about.

I would suggest that it would fly in the face of an analogous, mischief or purposive approach to artificially restrict its meaning to cases of denied boarding, and to bar relief to the other remedies under the regulation, being those for cancellation and severe delay.

I would not hesitate to quote Finnair Oyj v Timy Lassooy in a claim for severe delay where the defence is that an EC applied to a previous flight. I accept that this does not guarantee that I will win that case. It is one of many lines of legal argument intended to highlight how the courts come down on the side of the consumer where extraordinary circumstances are cited inappropriately.

laticsforlife

Thanks for this blondmark - I had simply assumed I wasn't wanting to use Finnair, due to others comments, but now I've read it, I see how useful it is.

I would much rather start by saying it doesnt matter if it was Extraordinary Circumstances because of Finnair it wasnt an Extraordinary Circumstance on my particular flight, and then if that fails I can go onto other arguments (like Thomson are actually lying!)

An argument over the intention of the legislation is far better than the nitty gritty of a particular possible Extraordinary Circumstance.

Edit;
sorry wrong way round - the question in Finnair was whether an EC can apply to another flight, so I am saying that a) its not an EC as its inherant, and b) in the alternative if it is an EC then Finnair says it cannot apply to knock-on flights.

blondmark

laticsforlife wrote: »

Thanks for this blondmark - I had simply assumed I wasn't wanting to use Finnair, due to others comments, but now I've read it, I see how useful it is.

I would much rather start by saying it doesnt matter if it was Extraordinary Circumstances because of Finnair it wasnt an Extraordinary Circumstance on my particular flight, and then if that fails I can go onto other arguments (like Thomson are actually lying!)

An argument over the intention of the legislation is far better than the nitty gritty of a particular possible Extraordinary Circumstance.

Edit;
sorry wrong way round - the question in Finnair was whether an EC can apply to another flight, so I am saying that a) its not an EC as its inherant, and b) in the alternative if it is an EC then Finnair says it cannot apply to knock-on flights.

Well yes, there is an argument that Finnair exemplifies where the ECJ stands on the knock-on effect of ECs, even though the EC in Finnair was deployed in relation to denied boarding rather than cancellation or delay. They all fall under 261/2004. Just suppose Finnair were about delay, would you conclude that it could not possibly apply to cancellation or denied boarding? Of course not - they all fall under the 261/2004 umbrella and are all analogous for the purpose of putting forward a legal argument.

LULU5779

LULU5779 wrote: »

I received my court date today, 25th September 2013 3.00pm at Brighton heard by Deputy District Judge Ellis.

I have now received the direction questionnaire. Thomson have ticked no to mediation service :-) there goes settling before court.

No, to expert written evidence and only 1 witness including herself Amanda dumford Thomson legal team.

I shall get preparing for the 25th September.