Flight delay and cancellation compensation, Tui/Thomson ONLY

nigelpm

Interesting.

I have received a reply from the county court informing me that my claim has been struck out as it appears to be time barred under article 35 of Montreal Convention - any suggestions as to best way to proceed?

dxc_chappie

nigelpm wrote: »

Interesting.

I have received a reply from the county court informing me that my claim has been struck out as it appears to be time barred under article 35 of Montreal Convention - any suggestions as to best way to proceed?

Did you make it clear in the particulars of your claim that you are claiming under ec261/2004? And also following the the More ruling the six year limitation of section 9 of the Limitations Act 1980 applies? If not I fear Thomson have pulled the wool over the court's eyes. You could write to the court requesting an amendment to the particulars of your claim, although I suspect you may have to start a new claim. Others on this forum may have more experience in such matters.

111KAB

dxc_chappie wrote: »

Did you make it clear in the particulars of your claim that you are claiming under ec261/2004? And also following the the More ruling the six year limitation of section 9 of the Limitations Act 1980 applies? If not I fear Thomson have pulled the wool over the court's eyes. You could write to the court requesting an amendment to the particulars of your claim, although I suspect you may have to start a new claim. Others on this forum may have more experience in such matters.

My Court allowed me to amend my Particulars of Claim (at no cost) as Monarch had failed to disclose all relevant facts when I submitted and they responded to my MCOL.

nigelpm

Thanks for the replies. The order was made by the court!

I still have a few days left to respond so that's what I intend to do.

jimcbob

dxc_chappie wrote: »

Did you make it clear in the particulars of your claim that you are claiming under ec261/2004? And also following the the More ruling the six year limitation of section 9 of the Limitations Act 1980 applies? If not I fear Thomson have pulled the wool over the court's eyes. You could write to the court requesting an amendment to the particulars of your claim, although I suspect you may have to start a new claim. Others on this forum may have more experience in such matters.

Provided you referred to EC261/2004 in your claim, you don't need to make any amendments. As a matter of form, it would actually be wrong to deal with a limitation point in your claim (because it is for the defendant to raise the limitation defence first).

As per my previous post, if you want to challenge the court's assumption that the Montreal Convention applies, you will need to apply to set aside the strike out order using an N244 form (a fee will be payable). You can explain in the evidence section of that form that the 2 year Montreal Convention time limit does not apply as per the ECJ's ruling in More, such that the standard 6 year limitation period applies.

nigelpm

Thanks. Their wording is :

"Because this order has been made by the court without considering representations from the parties, any party affected has a right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court to arrive at the court office 7 days from the date of service of this order. No court fee will be payable."

So my plan was a simple note (rather than a N244 form) explaining the ECJ's ruling in More. I assume the District judge who struck out the claim is unaware of this.

However, this makes me very nervous in continuing the claim as the Judge is also probably unaware of the definition of "extraordinary circumstances"!

Although on the flip side the judge may be irritated that Thomson have attempted to use the Montreal convention in their defence statement.

Could be an interesting one to pursue though so I will carry on.

happychap7

The N1A states you need to copy the completed N1 form so that the claimant has a copy and there is one for the court as well. I take it I keep the copies for the moment and only send the one form to the CCMCC at Salford.
Thanks

akm123_2

Hoping someone can clarify a point for me as I have just received my letter telling me that my delay was caused by ECs and am drafting my response.

Having read all the court judgements as fully as I can, I can see no mention of the airlines being obliged to do what they can to minimise the actual flight delay as opposed to simply preventing any technical issue.

Is it mentioned anywhere that they must minimise the delay if at all possible? I ask because there was an alternative aircraft available from before the flight was supposed to depart and indeed we actually flew out on that plane six and half hours later. Once on board, the crew told us that we had had to wait on them as our initial crew was over their flying time.

I am going to ask for specifics of the technical problem which they are using to cite an "unexpected flight safety shortcoming" in my letter but had hoped I could throw a few more broken rules at them along with the ones I am already stating.

Thanks for any help.

111KAB

akm123 wrote: »

Having read all the court judgements as fully as I can, I can see no mention of the airlines being obliged to do what they can to minimise the actual flight delay as opposed to simply preventing any technical issue.

41 Wallentin is the clause you are seeking.

Wallentin in general for the fact that a technical problem does not = extraordinary circumstance but refer to 24/25/26.

AlwaysConfused

Finally, finally getting my backside in gear wiht the NBA letter... (in my defence the family has grown by one)

This is what I'm planning to send based on the template found on this wonderful site. Please be as brutal as you like

"I am writing to you to lodge my claim for delayed flight compensation. Our flight (detailed above) was delayed leaving Manchester and we arrived in Rhodes some 4.5hours after the scheduled arrival time.

I am aware that judgement has been handed down in the current ECJ case (C-629/10) on October 23rd 2012, and I wish to proceed with my claim.

Upon finally boarding our plane the Captain advised us the delay was due to Thomson using the aircraft scheduled for flight TOM2658 to cover for another aircraft.

I have since had confirmation that the flight was delayed due to an issue with a wheel nut on an aircraft that was not the one scheduled for the flight detailed above.

Since the issue was with an aircraft that was in no way connected to our flight, and our delay was caused by the ‘knock-on’ effect of a business decision I do not believe that your defence of “unexpected flight safety shortcoming” to be valid against this a compensation claim. Should you be claiming any such defence I should be grateful if such details could be provided to me within 14 days of the date of this letter.

Should you neither settle my claim in full nor provide a full defence to my claim within the above timescale, I reserve the right to issue legal proceedings without giving you further notice in writing.

I look forward to hearing from you."