Flight delay and cancellation compensation, Tui/Thomson ONLY

maisbitt

Ignore the bold past the "re:" bit - formatting went a bit wrong in the paste.

Lozza123

Lozza123 wrote: »

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.

Because I've had a reply with the 14 days of the NBA letter can I now submit MCOL or do I have to wait until the 14 days are up. That is if I have a case.

blondmark

Lozza123 wrote: »

Because I've had a reply with the 14 days of the NBA letter can I now submit MCOL or do I have to wait until the 14 days are up. That is if I have a case.

Technical faults with the aircraft can be relied upon in very
limited cases, and can be difficult and costly to for the airline to prove (Frederike Wallentin-Hermann v Alitalia – Linee Aeree
Italiane SpA).

The airline has a legal duty under the Practice Direction on Pre-action Conduct to disclose to you all their evidence relating to their purported defence - in other words they must prove what they say. Give them 14 days in which to provide this, failing which you will then issue proceedings.

Lozza123

blondmark wrote: »

Technical faults with the aircraft can be relied upon in very
limited cases, and can be difficult and costly to for the airline to prove (Frederike Wallentin-Hermann v Alitalia – Linee Aeree
Italiane SpA).

The airline has a legal duty under the Practice Direction on Pre-action Conduct to disclose to you all their evidence relating to their purported defence - in other words they must prove what they say. Give them 14 days in which to provide this, failing which you will then issue proceedings.

Thankyou so much. I have replied to their refusal e-mail quoting what you have said. Is this sufficient or should I also put it in writing, bearing in mind it is the directors office I am corresponding with.

blondmark

Lozza123 wrote: »

Thankyou so much. I have replied to their refusal e-mail quoting what you have said. Is this sufficient or should I also put it in writing, bearing in mind it is the directors office I am corresponding with.

Best practice would be to confirm that in a letter to avoid later arguments about inadequate notice where they did not authorise e-mailed service of documents relating to the claim.

Lozza123

blondmark wrote: »

Technical faults with the aircraft can be relied upon in very
limited cases, and can be difficult and costly to for the airline to prove (Frederike Wallentin-Hermann v Alitalia – Linee Aeree
Italiane SpA).

The airline has a legal duty under the Practice Direction on Pre-action Conduct to disclose to you all their evidence relating to their purported defence - in other words they must prove what they say. Give them 14 days in which to provide this, failing which you will then issue proceedings.

Dear Miss Williams

Thank you for returning your EU Delay Information Form.

Here at Thomson Airways, we are committed to on-time performance across our flying programme. It sounds trite, but doing yeverything we reasonably can to get our aircraft to their destinations, and you on holiday, safely and on time is really important to us.

In terms of on-time performance, for the past few years Thomson Airways has consistently been one of the best performing airlines in the UK and we work hard to maintain the title of most on-time charter airline.

Delays are always a real disappointment for us, not only in respect of the effect that they have on passenger enjoyment and comfort, but also there is a real financial cost to us in circumstances which are almost always not our fault. That cost makes offering the best value fares and holidays more of a challenge.

Very occasionally, though, and despite our very best efforts to prevent delays they can occur and we are truly sorry that your flight was delayed in the way that you have described.

In a limited number of circumstances Regulation 261/2004 of the European Union ("the Regulation") now entitles some affected customers to a payment when their flight is delayed over three hours on arrival.

Now that we've received your form, we've looked in detail at the circumstances that surround your experience. So let's look at the specific cause of your delay.

I can see from our flight reports that your flight was delayed due to a hydraulic leak from a thrust reverse actuator, this was found after the flight had passed its pre-flight safety checks. Therefore this technical issue comes under extraordinary circumstances as it is something that could not be detected during the required checks.

As confirmed by the Court of Justice of the European Union ("CJEU") in the judgment on Nelson v Lufthansa and C629/10 TUI, British Airways, EasyJet and IATA v United Kingdom Civil Aviation Authority, the question whether a specific delay triggers an obligation to pay a proscribed amount of compensation pursuant to Article 7 of the Regulation requires consideration as to whether the long delay is a result of extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken. It's important to note that the "all reasonable measures" test applies to the occurrence of the Extraordinary Circumstances not the delay that may have been its effect.

Plainly speaking, a small number of passengers may be entitled to compensation for a delay that results in those passengers reaching their destination airport in excess of three hours after their ticketed arrival time. However, if the cause of the delay was not the airline's fault (i.e. the result of Extraordinary Circumstances), there is no requirement to pay that compensation.

The definition of what amounts to "Extraordinary Circumstances" is given in paragraph 14 of the preamble of the Regulation, which states:

".obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier."

In case of your flight, the cause of the delay was in reaction to a delay to another aircraft caused by an "unexpected flight safety shortcoming" arising midflight.

To some there is a fundamental misunderstanding around whether technical problems can constitute Extraordinary Circumstances with many believing that no technical problems can fall into that category at all. This is simply not true, as confirmed by the CJEU itself; their decision of Wallentin-Hermann v Alitalia provides some clarity.

In that particular case, the passengers were due to travel on a flight between Vienna, Austria and Brindisi, Italy, via Rome. Unfortunately, five minutes before the intended departure time, the customers were told the flight had been cancelled. The reason for the cancellation was that a complex engine defect in the turbine had been discovered the day before during a routine maintenance check.

In determining whether the cause of the "unexpected flight safety shortcomings" could be held as Extraordinary Circumstances, the Court stated in paragraph 24 & 25 the following:

"24. In the light of the specific conditions in which carriage by air takes place and the degree of technological sophistication of aircraft, it must be stated that air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise. It is moreover in order to avoid such problems and to take precautions against incidents compromising flight safety that those aircraft are subject to regular checks which are particularly strict, and which are part and parcel of the standard operating conditions of air transport undertakings. The resolution of a technical problem caused by failure to maintain an aircraft must therefore be regarded as inherent in the normal exercise of an air carrier's activity.

25. Consequently, technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance cannot constitute, in themselves, "extraordinary circumstances? under Article 5(3) of Regulation No 261/2004."
It was therefore held that, in the event that a technical fault was found during maintenance, or ought reasonably to have been found during maintenance, the resulting cancellation may not amount to Extraordinary Circumstances.

This approach makes sense as we agree that it may not be right that a passenger ought to bear the burden of the requirement to repair a technical problem that is detected during routine maintenance. But it flows from that conclusion that a problem that arises outside of regular maintenance and which is not the result of poor maintenance can't be inherent in the operation of an air carrier and therefore will be Extraordinary Circumstances.

Maintenance of the Thomson fleet of aircraft is conducted to some of the highest standards in the world. It's another area that we take extremely seriously as it affects safety, cost and on-time performance. Our approach is to have a regime that results in a schedule of assessment, service and part replacement which is significantly better than the manufacturer's recommendations.

In the case of fault to the aircraft which delayed your flight, the technical problem occurred while the aircraft was in-flight. As the defect in question was not something that either ought to have been detected during routine maintenance or which occurred as a result of the failure of Thomson to implement a satisfactory maintenance scheme or fail to implement that scheme appropriately, the failure in-flight was entirely unexpected. Therefore, the circumstances are not of a kind which would fall outside of the definition of Extraordinary Circumstances and compensation is therefore not payable.

At Thomson Airways we really value our ability to meet customer expectations. We already invest significantly in operational initiatives, engineering excellence and having a modern fleet; they all help to keep the frequency and duration of delays to an absolute minimum.

Observing the purpose and spirit of the Regulation and doing so while continuing to deliver real value to our customers is a challenge that can only be met by applying the rules robustly and not making payments where the delay is not our fault. Were we not to apply the rules in the way that we must, prices would need to rise for you and all other customers.

Thank you for taking the time to contact us. We sincerely hope, and are doing all we reasonably can to ensure, that your future flights with Thomson Airways arrive on-time.

Yours sincerely,


Jade Simpson
Directors' Office
Holiday Experience TUI UK & Ireland.


That's the first e-mail with reasons of refusal. I e-mailed back quoting what you said. She has replied with The reasons are stated in the refusal and the outcome remains the same. If I want to pursue it then go ahead. What do you think. Also why were we told our plane had gone to Greece? Also how could it have happened during flight as it never left Newcastle in the first place it was delayed taking off from there thus resulting in the delay in Tunisia. I do not understand.

Ich_2

Ah getting closer to the reasons, however will a judge accept that argument from, say, a member of the public vs a lawyer? Or will it then get referred to the higher courts putting a hold on claims until that is settled?
If this drags on who will pay the costs?

Prof_Ligate

Centipede100 wrote: »

I have been led to believe that Thomson may be looking to rely on Sidhu v British Airways (http://www.publications.parliament.uk/pa/ld199697/ldjudgmt/jd961214/abnett01.htm) as a possible way of defending the 2 year limit stance they have decided to take.

The main problem for the airline is that this judgment was handed down in 1996, long before the EU contemplated 261/2004 and 16 years before the Cuadrench More v KLM ruling was handed down in the ECJ.

The question posed in the More case in the ECJ was:

By its question, the referring court asks, in essence, whether Regulation No 261/2004 must be interpreted as meaning that the time-limits for bringing actions for compensation under Articles 5 and 7 of that regulation are determined by Article 35 of the Montreal Convention or in accordance with some other provision, in particular the rules of each Member State on the limitation of actions.

The court ruled:

Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that the time-limits for bringing actions for compensation under Articles 5 and 7 of that regulation are determined in accordance with the rules of each Member State on the limitation of actions.

There is no ambiguity in this ruling and it means that National courts cannot apply the limitation which applies under the Montreal Convention but must refer to the appropriate Limitation Act in each Member state.

Since this cannot be the 2 year time limit which applies under the MC, there is only one other time limit which applies under Section 5 of the Limitation Act 1980 and that is 6 years from the date of the delayed flight.

In Scotland the limit is 5 years.

I guess they may think there is ambiguity in that the Cuadrench More ruling refers them back to member state law and our law provides the exception at section 39 re other legislation. However, as that other legislation (Warsaw/Montreal Convention) has been very clearly ruled out by the same ruling - its a futile argument.

Reg EU261/2004 is an independent and additional avenue for redress for delay and so outside of the scope of Warsaw/Montreal.

Given the above, its laughable that Thomson could seriously try and rely on a 2006 case.

Wight_Rabbit

The flight that we were delayed over three hours on was part of a holiday purchased from First Choice that used First Choice Airways. The holiday was purchased using a credit card. The credit card has actually been closed however.

Is it possible to make a section 75 claim for delay compensation does anyone know?

Lozza123

Any advice for my last post #381 please. I am now at a loss as to wether I have grounds to take this to court.