Flight delay and cancellation compensation, Tui/Thomson ONLY

matt2baker

dxc_chappie wrote: »

Read through the thread "Thomson Claim 2 year limit to claim" - Mark2spark has provided an analysis of Thomson's reasoning why they think the 2 yr limit should apply.

Is this a separate thread you're referring to - I read this thread daily so probably would have referenced it.

jenn1ewest1

SimonD316 wrote: »

Something has just struck me about that. If people delay starting action until the appeal is heard, and Thompson are laughed out of court lots of people may miss the real deadline to start action! Is this a tactic of theirs?

I have saved it and will definitely attach it my court bundle as should have a court hearing date very soon so will let you all know how I get on with it
ps did any see the six o clock news about the delay tactics of the airlines hope a few judges were watching as it clearly sates six years
JH

Bonters

jenn1ewest1 wrote: »

I have saved it and will definitely attach it my court bundle as should have a court hearing date very soon so will let you all know how I get on with it
ps did any see the six o clock news about the delay tactics of the airlines hope a few judges were watching as it clearly sates six years
JH

Yes, and the Solicitor who commented (however briefly) was Kevin Clarke of Bott & Co, who is handling my claim, as it happens

darkwarrior

dxc_chappie wrote: »

In your written response you should include something along the lines of:

1. The Claimant make no claim for loss, damage or delay brought under the Montreal Convention, instead the Claimant rely solely on Regulation (EC) 261/2004 and therefore it is not arguable the limitation period provided by the Montreal Convention could apply.

2. The extent of the time limitation in which a claim for delay under Regulation (EC) No 261/2004 was confirmed in the judgment of the ECJ in Case C-139/11 Joan Cuadrench More v Koninklijke Luchtvaart Maatschappij NV. The time-limits for bringing actions for compensation for flight cancellation under European Union law are confirmed as being determined in accordance with the rules of each Member State on the limitation of actions, and any argument that is should be two limited to two years is therefore ineffective.

3. Paragraph 29 of the More judgment is specific in that the two-year limitation of Article 35 of the Montreal Convention does not apply to compensation brought Regulation (EC) No 261/2004: "Consequently, the two-year limitation period laid down in Article 29 of the Warsaw Convention and in Article 35 of the Montreal Convention cannot be considered to apply to actions brought, inter alia, under Articles 5 and 7 of Regulation No 261/2004."

4. In English law, section 9 of the Limitation Act (1980) provides that "an action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date of which the cause of action accrued". In light of the More judgment, a six year limitation period therefore applies to claims brought before the English courts.

5. The Claimant say that any clause in the Defendant’s flight conditions of carriage by air which purports to extinguish a consumer’s legal entitlement to access their statutory rights under Regulation (EC) No 261/2004 to make a claim after two years is ineffective because Article 15 of Regulation (EC) No 261/2004 expressly prohibits it: “Exclusion of waiver - 1. Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.”

And assuming your case is allowed to continue you should also include the above in your witness statement.
(Credit to Blondmark for most of the above wording.)

So reading this while writing up my letter I realised that the first point says I am making no claim for loss, damage or delay, and the 2nd point says I am claiming for flight cancellation.

My flight was delayed several hours, is the argument that the flight not being there as required is equal to cancellation?

JPears

darkwarrior wrote: »

So reading this while writing up my letter I realised that the first point says I am making no claim for loss, damage or delay, and the 2nd point says I am claiming for flight cancellation.

My flight was delayed several hours, is the argument that the flight not being there as required is equal to cancellation?

No warrior, you are claiming compensation under reg261/2004, not damages etc under Montreal Convention. Its to make it clear to the judge what you are claiming since they are separate entities, excluding Montral and therefore the 2 yr limit.
Was your flight delayed or cancelled? Makes no odds really as they are treated the same under 261/2004

dxc_chappie

JPears wrote: »

No warrior, you are claiming compensation under reg261/2004, not damages etc under Montreal Convention. Its to make it clear to the judge what you are claiming since they are separate entities, excluding Montral and therefore the 2 yr limit.
Was your flight delayed or cancelled? Makes no odds really as they are treated the same under 261/2004

Yes this is what the Sturgeon judgment confirmed - that long delays over 3 hours can be treated the same as cancellations under reg 261.

Darkwarrior - if you prefer you can amend point 2 to read ".... The time limits for bringing action for flight cancellation (and, post-Sturgeon, delays) under European law ...." (you can insert the Sturgeon case reference yourself).

Hope this helps.

Littlemonkey500

Hi there,

I'm new to posting but have found this an invaluable information source. I've been through every page and feel I now understand the process but I haven't seen the same example and I'm not sure if my experience would class as an EC or not. I was delayed 25 hours coming back from Cancun to Gatwick last November. On the original departure date I got a call an hour before we were due to leave for the airport to say that we had a 24 hour delay due to a problem with the plane coming from Gatwick. From what I remember the problem was a cracked windscreen. Even when we got on the plane 24 hrs later we still sat for another 1.5 hrs while they sorted paperwork. On flight stats the status says "en route" so I'm nots sure exactly what time we got back but it was at least 25 hrs. My question is, does a cracked windscreen count as EC? And even if it does, would I still have a claim as it affected the flight coming from Gatwick first? Many thanks for any feedback.

Vauban

Littlemonkey500 wrote: »

Hi there,

I'm new to posting but have found this an invaluable information source. I've been through every page and feel I now understand the process but I haven't seen the same example and I'm not sure if my experience would class as an EC or not. I was delayed 25 hours coming back from Cancun to Gatwick last November. On the original departure date I got a call an hour before we were due to leave for the airport to say that we had a 24 hour delay due to a problem with the plane coming from Gatwick. From what I remember the problem was a cracked windscreen. Even when we got on the plane 24 hrs later we still sat for another 1.5 hrs while they sorted paperwork. On flight stats the status says "en route" so I'm nots sure exactly what time we got back but it was at least 25 hrs. My question is, does a cracked windscreen count as EC? And even if it does, would I still have a claim as it affected the flight coming from Gatwick first? Many thanks for any feedback.

As a technical problem, a cracked windscreen is unlikely to be an extraordinary circumstance - though it if was damaged in flight by eg a bird strike some would argue that this is an EC. A delay however of 25 hours is difficult to reconcile with the airline's obligation to use "all its resources" to minimise the delay to your own flight. So in short, I think you have a clear case.

Flight stats is not always complete but irrelevant. If you are certain your delay is over 3 hours, the airline will confirm this from their own records.

Time for NBA and then court as necessary, I'd suggest.

Juno2302

Just so you know it IS legal for them to turn away over 2 year claims...
You can still claim for over 2 years but you need to have gone to them and stated the EU Ruling within two years of your flight home.

under montreal convention Article 37:
Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999)

Chapter III - Liability of the Carrier and Extent of Compensation for Damage

145
Article 35 - Limitation of actions

146
1. The right to compensation 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.


Do your research better and stop pretending to be legal experts.

Juno2302

Juno2302 wrote: »

Just so you know it IS legal for them to turn away over 2 year claims...
You can still claim for over 2 years but you need to have gone to them and stated the EU Ruling within two years of your flight home.

under montreal convention Article 37:
Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999)

Chapter III - Liability of the Carrier and Extent of Compensation for Damage

145
Article 35 - Limitation of actions

146
1. The right to compensation 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.


Do your research better and stop pretending to be legal experts.

I'd just like to add that the EU Reg doesn't stipulate a time frame in which customers have to contact Thomson so with that in mind they would need to refer to the next available law under "Carriage by Air" which is the montreal convention... as quoted above.

So regardless of what you're claiming under - the time frame is TWO YEARS without a prior communication with in that time frame.