Flight delay and cancellation compensation, Tui/Thomson ONLY

Prof_Ligate

Mark2spark wrote: »

IANAL, but I believe Thomson are going to rely on:

"Section 39 of the Limitation Act stipulates that the Act shall not apply where an alternative limitation period is prescribed by any other statute. Various statutes prescribe different time limits for the bringing of claims. Some of these are significantly shorter than the time allowed under the 1980 Act.

Point 26 on the link below.

http://www.radcliffechambers.com/media/Misc_Articles/Limitation_seminar_-_Dov_Ohrenstein.pdf

Which is basically spinning the ECJ wording of the national law of member states being the time period in which a claim can be bought, which previously, under the Montreal Convention, was 2 years. But the ECJ said that EU261 comes in BEFORE the MC is operable.

I'm sure they are but the More ruling has surely already dealt with that point and so they cant have another bite of the same cherry. They appear to be ignoring and/or willfully misinterpreting More as it obviously suits them to do so.

I am going to pull the full judgment off today and have a proper read through.

Gooseman41

Hi

I am in the process of starting to enter my details on the above claim site. Just one question. I am making two claims,,one for a flight in 2010 and another in 2011. Do I have to make two separate claims through the MCOL website?

Many thanks

blondmark

Mark2spark wrote: »

IANAL, but I believe Thomson are going to rely on:

"Section 39 of the Limitation Act stipulates that the Act shall not apply where an alternative limitation period is prescribed by any other statute. Various statutes prescribe different time limits for the bringing of claims. Some of these are significantly shorter than the time allowed under the 1980 Act.

Point 26 on the link below.

http://www.radcliffechambers.com/media/Misc_Articles/Limitation_seminar_-_Dov_Ohrenstein.pdf

Which is basically spinning the ECJ wording of the national law of member states being the time period in which a claim can be bought, which previously, under the Montreal Convention, was 2 years. But the ECJ said that EU261 comes in BEFORE the MC is operable.

Prof Ligate has it in a nutshell. All of the arguments about the applicability of the time limit stipulated under the Montreal Convention ceased to be on 22nd November, 2012 when the ECJ rejected the argument that the two year time limit under the Montreal Convention should apply, because the Regulations that give rise to a separate cause of action are not governed by the Convention.

The ECJ held that "the compensation measure laid down in Articles 5 and 7 of Regulation 261/2004 falls outside the scope of the Warsaw and Montreal Conventions." In other words, as far as 261/2004 claims are concerned, the Montreal Convention has nothing to do with it.

Judgments of the ECJ have direct effect on, and supremacy over, the laws of England and Wales. This means that English courts do not have the power to consider the Montreal Convention when assessing time limits for bringing claims under 261/2004.

Bonters

I have today fired off my letter to the Thomson Company Secretary as final notice before action. I have previously written to them stating that I consider the 2 year statute of limitation to be spurious. I now intend to have them conform to my time limits rather than vice versa, and have duly given them 14 days to inform me of any Extraordinary Circumstances defence. I intend to issue process if they fail, or provide anything which does not constitute EC's. It is abundantly clear that Thomson will not pay a penny without due process being issued against them. I think the '2 year' letter would satisfy any County Court Judge that you have taken the negotiations as far as you can. That's my opinion anyway. I shall update the progress on here

Mark2spark

blondmark wrote: »

Prof Ligate has it in a nutshell.

I think we're saying the same thing all round here.

Mark2spark

Mark2spark wrote: »

I have been informed that:

"The Supreme Court hasn't heard a EU261 case since the Grand Chamber ruling last year, or the follow up Cuadrench More case a few weeks later, that defined limitations, so any reference to something the Supreme Court has said, is something that it has said in the past, and one would obviously assume that it would have been in reference to a case bought under the Montreal Convention, which typically does contain wording that defines limitations to two years. However, the Cuadrench More ruling has confirmed that EU261 is supplementary to any further case that could also be bought under the Montreal Convention, and that the two do not conflict, with EU261 being operable before the Montreal Convention".

Basically that then.

blondmark

Mark2spark wrote: »

Basically that then.

Quite so.

Somehow I doubt that Thomson will reveal any details of their mystery Supreme Court authority. Despite the fact that it doesn't exist, this court is inferior to the ECJ which has already unambiguously ruled on the matter.

Interesting to note that Ryanair also invented non-existent law to try to get around their legal obligations towards their passengers (see the Ryanair only forum).

It's high time that consumers had an aviation ombudsman with teeth to fine crooked airlines like Thomson and Ryanair.

Lozza123

Lozza123 wrote: »

Well 12 weeks on Monday since my claim forms were signed for. I was advised by cab to send a NBA letter addressed to the secretary which I did and was signed for on 7th March. I had sent a NBA previously by e-mail but was advised that this might not be accepted by the courts. I had sent numerous e-mails to which I got no replies. Anyway I got a reply yesterday from the directors office saying she will be looking into it for me. I replied that this was not acceptable and I wanted something done now. She then sent another e-mail saying they will conduct a thorough investigation. Well furious was not the word. I sent a very angry reply saying they have had well enough time to conduct a thorough investigation, I also stated that if they had any decency about them then someone could pick up the phone and give me an explanation. Lo and behold she rang at 5.10 yesterday on the home phone left a message saying she would be there until 5.30. I do not know why she did not try my mobile as both numbers were given. Will wait now and see what she has to say on Monday morning. I told her in no uncertain times if this was not resolved by 20th march then court it is without any further delay. I just wish I had taken it to court a lot sooner.

Got a call yesterday saying they would look into it yesterday. I have today received a e-mail saying a letter was being sent to me. I have just telephoned because I knew by that e-mail that I was going to be refused compensation. I was correct. She is going to e-mail letter to me. I will let you know reason. My flight was delayed over 5 hours last year. Reason given that the plane leaving newcastle to tunisia to pick us up had gone to Greece so we had to wait until they got another plane. I am furious.

maisbitt

I got the 2 year letter, even though one of my 2 claims was for a flight approx 18 months ago. They haven't defended their position at all by stating exact cause of delays, but from my draft letter you should be able to determine what happened in each case. Anything any of the "experts would change about the following letter?

TUI Company Secretary

Dear Sir or Madam,

Re: Compensation request for delayed flights; Booking reference: 2978654 / 083385/001, relating to response reference S10/2978654/AW

Thank you for your generic/template standard reply to my recent requests for compensation relating to two severely delayed flights that my wife and I have experienced in September 2010 and September 2011 whilst flying with Thomson/First Choice flights. Nothing of the content is specifically applicable to my letters to request flight delay compensation. It serves only to dissuade further pursuit of the requests and I will not be deterred by these delay tactics.

As well as waxing lyrical about the investment you have made in recent years to improve your fleet and services, you give mention to your opinion that I only have two years in which to make a claim for delay.

Before the introduction of EU261/2004, and the subsequent appeals, the Supreme Court in the UK, by default, referred to the Montreal Convention, which clearly states that all claims to do with "international carriage by air" need to be brought within two years.

There have since been appeals, and the ECJ has clearly said that the statutory compensation offered by EU261/2004, and other claims under the Montreal Convention, do not conflict, and that claims under EU261/2004 fall within the time limit of the member state, which in the UK is 6 years.

Both of my requests for fixed statutory compensation fall comfortably within this limit.

May I also draw your attention to the fact that the seven hour delay experienced for flight TOM392 on 30 Sep 2011 (Booking reference: 083385/001) is from less than two years ago, so by your own incorrect/outdated interpretation of European/UK law I am within the period of claiming for this case.

In fact, I brought to Thomson’s attention the other delay for flight TOM348 on 29 Sep 2010 (Booking reference: 2978654) within a month of my return, but responsibility for the delay was deflected (I have retained Thomson’s response letter as proof of your acknowledgement of my request for compensation in November 2010).

When I pay for a holiday package, I expect to get what I have paid for e.g. fourteen days and nights, not thirteen days and nights. I expect TUI to pre-empt a foreseeable cause of delay and formulate a preventative measure such as provision of a replacement aircraft to minimise or prevent delay.

Nowhere in your latest correspondence (reference S10/2978654/AW) have you justified why the delays were not TUI’s fault and therefore why TUI cannot be held accountable for them. I strongly believe that TUI’s position for delay cause is indefensible as “extraordinary circumstances beyond the airline’s control”.

Specifically in the case of the 2011 flight delay mentioned above, at the point of booking in, TUI knew a sizeable delay was inevitable as they had made no provision to replace the aircraft servicing it, knowing full well that it had not yet left Florida USA on its previous flight when passengers were checking in for their flight at Newcastle airport.

The lack of information provided for this delay ensured that the passengers were obliged to remain at the airport. If given firm information for a revised flight time, I would have liked to have been given the option to book in later and be able to fill in the delay time outside the airport. I could’ve returned home for a while as I only live 10 miles away from the airport.

Additionally, for the 2010 flight delay, the flight departed Newcastle to Manchester (for a routine fuelling stop) with a known fault and so was flying on a reduced service. It was known prior to departure that the aircraft was unsuitable to fly from Newcastle to Cancun via Manchester without intervention at Manchester.

It could also reasonably be determined that unless the intervention took place within an hour, the flight crew would not be able to service the flight as their maximum flight duty period would be beyond that which is allowable (thirteen hours, excluding extension of one hour), giving consideration to the flight time.

Your denial of my requests for fixed statutory compensation for €2400 total (two delayed flights each for two passengers, long haul ~7800km) without substantiated evidence to deny responsibility for delay cause has left me with no option but to progress the process to court action.

Additionally I will be making a complaint to the CAA that you are misguiding potential claimants by incorrectly stating that they have only two years in which to make a claim. This is clearly malpractice as British law allows six years to file such a claim.

Should you neither settle my claim in full nor provide a full and viable defence to my request for compensation by defining any applicable “extraordinary circumstances” within 14 days of the date of this letter, I reserve the right to issue legal proceedings without giving you further notice in writing.

I look forward to your response to my latest correspondence,

Lozza123

Lozza123 wrote: »

Got a call yesterday saying they would look into it yesterday. I have today received a e-mail saying a letter was being sent to me. I have just telephoned because I knew by that e-mail that I was going to be refused compensation. I was correct. She is going to e-mail letter to me. I will let you know reason. My flight was delayed over 5 hours last year. Reason given that the plane leaving newcastle to tunisia to pick us up had gone to Greece so we had to wait until they got another plane. I am furious.

E-mail received. Said it was a hydraulic leak so therefore extraordinary circumstances. This wasn't detected until after pre-flight safety checks. We were told our plane had gone to Greece because they had a problem over there. What do you think about this. Do you reckon I have a case for court. It's taken them over 12 weeks to tell me this.