Flight delay and cancellation compensation, Tui/Thomson ONLY

jimcbob

laticsforlife wrote: »

He also did not allow me anything for loss of income saying it should have been on my claim form (I've only just thought that my argument could have been that at that point I did not know it would end up in court) but hey ho, the main point is the win.

Congratulations on your win.

Just for reference in case this affects any future claims, it is not right that a claim for lost income during the claim needs to be made in the Claim Form. That is an application for costs, and cannot be included in the claim form. If anyone intends to make such a claim, they would be well advised to take copies of CPR r. 27.14 (costs on the small claims track) and CPR r. 48.6 (costs of litigants in person).

The court can award up to £90 for any loss of earnings or loss of leave by a party or witness due to attending a hearing: CPR r. 27.14(e).

To claim any other lost income as a result of the proceedings, you need to show that the party has behaved unreasonably: CPR r. 27.14(2)(g). The court can then summarily assess costs under CPR r. 48.6. In such cases, the court can award lost income (if proven) or £18 per hour (if not proven) capped at two thirds of the amount which would have been allowed if the person had been represented by lawyers.

Obviously, a claim for lost income as a result of the delay to the flight itself is totally different.

darkwarrior

laticsforlife wrote: »

Here is my full explanation of today's events in Tamside County Court.

Three strands to the case;

1. Was I on the flight
2. Is the case out of time (2 years not 6)
3. Are EC's evident

Plus a minor point about the strictness of me being the only claimant. The barrister (a Mr Thompson!) mentioned it but did not suggest the claim was wrong, and the judge was clear that it was I who entered into the contract and so could make the joint claim.

Mr T also conceded that I was on the flight and wouldn't be arguing that.

He also (very surprisingly) then said they wouldn't be arguing Montreal and were only arguing EC's, so the whole issue of the Dawson case and appeal never came up. I must admit it threw me a bit.

Finally we got onto the argument over EC's.

Mr T suggested that Finnair actually says that you look at the causal link between the EC and the delay, and if (in my case) the lightning could be shown to be the root cause of the delay the it did not matter that it was a subsequent flight.

I must say that the judge seemed quite taken with this and went to some lengths in asking me about the lightning strike and whether I accepted that it had happened to flight ZA.

The judge had NOT read all the other cases beforehand, and also was not that impressed with preamble 15 of the EC261 as it talked about follow on flights overnight etc.

He also questioned whether he was bound by cases like Wallentin and Finnair (I couldn't answer that point!)

Where I was able to succeed was to show that Thomsons evidence was not clear that the particular aircraft that got struck by lightning, was actually going to be our plane, and Mr T said he could add nothing more than what T had provided him.

I basically was able to cast enough doubt over the timeline being suggested, and so the judge said he wasn't satisfied that they had shown that there was a causal link between the lightning strike and our flight, and so we won!

4x € 400 plus costs.

The judge did refuse the 8% interest claim and instead allowed me 1.5%.

He also did not allow me anything for loss of income saying it should have been on my claim form (I've only just thought that my argument could have been that at that point I did not know it would end up in court) but hey ho, the main point is the win.

In summary, I think that if Thomson had not muddied the waters with their own evidence, that made it unclear whether the lightning strike hit a plane that was definitely going to be used for us, then they might have won under meteorological conditions being an EC.

Hope this helps others.


Nb it is well worth knowing your precedent cases inside out so you don't have to think on your feet too much as of course their side is far better prepared at how a Court works than you will be

Considering lightning is apparently rare, this is the same excuse they are using with me so your defense is very interestnig reading, thank you. That said, gotta imagine planes are struck by lightning quite often and are built to defend against such situations. And even then, they are bound to defend that short of extraordinary damage on their end, they could not get another plane into place.

Maddock17

Centipede100 wrote: »

I am starting this thread for those claiming flight delay or cancellation compensation from Thomson.

Any posts regarding any other airline in this thread will be ignored (at least by me).

Thomson have said that all claims must be made within 2 years of the delay and have refused my claim. I have pointed out that I did claim immediately on my return, but that this was refused.

Where do I go from here ?

jenn1ewest1

Well here goes finally got a court date off to Worcester Court on the 29th of November,in my letter off the court today the judge does say that he thinks our case is suitable for mediation and we are therefore encouraged to use the mediation services .I will phone them on monday however I dont think Thomson will go down that line as they ticked no to mediation originally so court here we come
JH

jenn1ewest1

Maddock17 wrote: »

Thomson have said that all claims must be made within 2 years of the delay and have refused my claim. I have pointed out that I did claim immediately on my return, but that this was refused.

Where do I go from here ?

start at page one and work your way through and you will get the general idea within the first few pages

jenn1ewest1

laticsforlife wrote: »

Just a quick note to say that today I won in court.

I will post a full note later, as I'm on my phone.

Great News just what I needed to hear as got my court date today
JH

matt2baker

Vauban wrote: »

A quick warning to those who wish to sit on the fence, pending the resolution of any appeal. Be careful you don't go out of time! Unless you start court action (and have it stayed) the clock is still ticking. Anyone whose flight was before 2009 is well advised to lodge their claim with the court (writing to the airline doesn't count).

Would you therefore be advising people who are well within the 6 year time-frame to hold fire on starting court proceedings until the 'appeal' is lost?

darkwarrior

Don't know if this would be of use to anyone, was googling effects of lightning on a plane as they seem to be using that one frequently too. According to the below link virtually nothing happens because of the inbuilt protections against what is considered a COMMON occurrence, not a freak one.

http://www.scientificamerican.com/article.cfm?id=what-happens-when-lightni

laticsforlife

darkwarrior wrote: »

Don't know if this would be of use to anyone, was googling effects of lightning on a plane as they seem to be using that one frequently too. According to the below link virtually nothing happens because of the inbuilt protections against what is considered a COMMON occurrence, not a freak one.

http://www.scientificamerican.com/article.cfm?id=what-happens-when-lightni

IMO, you are unlikely to win a lightning argument as the frequency of such an act of god is irrelevant. Basically the argument forwarded was that the business of operating an airline is that of flying an airplane, and lightning strikes are not normal and as such are extraordinary.

laticsforlife

darkwarrior wrote: »

Considering lightning is apparently rare, this is the same excuse they are using with me so your defense is very interestnig reading, thank you. That said, gotta imagine planes are struck by lightning quite often and are built to defend against such situations. And even then, they are bound to defend that short of extraordinary damage on their end, they could not get another plane into place.

If they can sucessfully convince a judge that the root cause of your delay was the lightning then is suggest you might lose your case as it is essentially an act of god and EC.

I don't agree with this but that was the thinking of my judge and only the fact that they did not convince him that the airplane in question was our plane meant they lost.

Also I don't agree that knock on effects apply, but again the judge said per amble 15 mentions overnight issues so he was seemingly happy to allow knock on effects.