Flight delay and cancellation compensation, Tui/Thomson ONLY

andresykes

Hi. Well I issued my claim and predictably TUI / Thomson confirmed they would be defending. The defence arrived this morning and wasn't a great surprise having read various defences that have been discussed on this thread. A couple of things regarding my defence:

1. My surname is miss-spelt throughout the defence document. Laughable really as it's not exactly a difficult one (only 5 letters after all!). Is there any implication with this?

2. TUI argue that the defendant should be Thomson Airways and I be compelled to substitute TUI for Thomson, although they don't propose re-service of the claim form.

3. The first part of the defence is the standard 2 year BS limit on bringing a claim. I feel reasonably confident that this isn't a problem but wonder whether anyone knows of another thread or post number that I can quickly go to for the relevant chapter & verse?

4. The 2nd part of the defence is extraordinary circumstances. When I did my subject access request they confirmed the cause of the delay as being a faulty fuel pump. In the defence they argue it was a knock on effect caused by bad weather affecting the plane we should have been flying on.

They state that our plane was flying Glasgow - Zante - Glasgow (where we would board it) but the Glasgow to Zante flight was diverted to Corfu due to poor weather conditions. The flight eventually returned to Glasgow 16 hours delayed - if we had flown on it we would have been over 18 hours delayed. Thomson brought in another aircraft and as a result we only delayed around 8 hours. Any thoughts about this?

Grateful thanks.

dp2603

andresykes wrote: »

Hi. Well I issued my claim and predictably TUI / Thomson confirmed they would be defending. The defence arrived this morning and wasn't a great surprise having read various defences that have been discussed on this thread. A couple of things regarding my defence:

1. My surname is miss-spelt throughout the defence document. Laughable really as it's not exactly a difficult one (only 5 letters after all!). Is there any implication with this?

2. TUI argue that the defendant should be Thomson Airways and I be compelled to substitute TUI for Thomson, although they don't propose re-service of the claim form.

3. The first part of the defence is the standard 2 year BS limit on bringing a claim. I feel reasonably confident that this isn't a problem but wonder whether anyone knows of another thread or post number that I can quickly go to for the relevant chapter & verse?

4. The 2nd part of the defence is extraordinary circumstances. When I did my subject access request they confirmed the cause of the delay as being a faulty fuel pump. In the defence they argue it was a knock on effect caused by bad weather affecting the plane we should have been flying on.

They state that our plane was flying Glasgow - Zante - Glasgow (where we would board it) but the Glasgow to Zante flight was diverted to Corfu due to poor weather conditions. The flight eventually returned to Glasgow 16 hours delayed - if we had flown on it we would have been over 18 hours delayed. Thomson brought in another aircraft and as a result we only delayed around 8 hours. Any thoughts about this?

Grateful thanks.

Have a look at post 2877 on page 144 and this may help your response to the 2 year time limit.

ftd83

Just back at work from the court, it got totally delayed by previous cases.

Will tell all when I get back home in an hour or so.

The war is over and I am bleeding.....

ftd83

FROM A PAPER CUT COUTING THOMSONS CASH!
:beer:

Pitched up to Manchester Civil Court today at 09.00
The case before ours was massively delayed so didnt get in until 11.30. Found 3 other cases against Thomson today being heard - hope they went well. It will make it an expensive day for Thomson in Manchester.:rotfl:

[TEXT DELETED BY FORUM TEAM]

Judge intially seemed pretty grumpy, probably because of the case before going pear shaped (security called etc). Judge intially went to Thomsons and wanted to know if their claim that I had not checked was to be pursued, it was not:D.

Things didnt get off to a great start as the Thomson guy was good and had hand picked out some sentences from Wallentin that support the airlines without of course mentioning the negative ones. Judge seemed to be nodding and getting on their side. I just made notes of their points and tried to keep quiet even thought the stuff coming out was the usual Thomson smokescreen.

It then came to my turn and I immediately said I contradicted everything he had just said and gave the 'golden' pieces from the Wallentin and Sturgeon cases. Pointed out that needs extraordinary circumstances and reasonable measures for Thomson to not pay. Then hit them with their own evidence (see above)- parts not delivered, parts stuck in customs, empty plane on standby not used and empty seats on other aircraft not used. Pointed out the poor maintenence records and that proof of mimimum maintenence is not proof of etraordinary - Judge not on board with me on this at all and asked what I wanted them to do - I replied more than the bare minimum. Didnt seem happy with that and I pointed out that if she was my patient (Im a surgeon) would she rather I do the bare minimum while operating or a thorough job even if it meant more scans? That seemed to get the point home!

Judge started to question Thomson guy over the poor reocrds and if he could explain them. None given. He then tried an intersting tack - the paragraph in Wallentin thats states faults found during maintenence are not extraordinary circumstances therfore means that all faults found out of maintenence checks must be extraordinary. I then quoted the paragraphs saying technical failures are common and are inherent to an airline.

Judge then wanted some time to read through the documents. Sat around waiting for about 45 mins but had an interesting chat with the Thomson barrister who was a genuinely nice bloke. [TEXT DELETED BY FORUM TEAM]

Jusge called us back and the intial preamble was not favourable. She was listing off all the maintenence that Thomson had done and that minimum maintenence was enough. Not good.

She felt that this was an extraordinary circumstance (reverse thruster failure) as there was no prior warning that Thomson could have seen. I was pretty miffed at this point.:mad:

She then said a big 'however' and that Thomson also need to show reasonable measures that they minimized delay which was certainly not proven! Also commented that the customer service was poor and the barrister recognised this.

Got 400 euro x 2, 140 court fees and 100 expenses = £915

I was unable to get reimbursed for my return flight to Gatwick under article 6 and lost baggage, Im not exactly sure why? Judge said I cannot be compensated twice for the same thing and barrister was totally agreeing with this point. Never mind though, the £100 expenses made up for that. The total amount I was after was £1012 so £915 is pretty good.

To clear up the point about one claimaint pursuing for multiple people, this was not an issue. Both the judge and barrrister said its whoever took out the contract with Thomson that can claim. This was not disputed at all and in fact the barrister actually reminded the Judge that it was 400 euro x 2 when she was adding up at the end!! :beer:
Good luck to all. I will try to get a transcript to help others.

Vauban

Well done ftd83: am so very glad you got the result you deserved! And really interesting insights from the barrister too ...

111KAB

ftd83 - WELL DONE and a nice report. I will PM you when I need a heart transplant!

David_e

Well done and thanks for the very useful write up.

ftd83 wrote: »

Judge not on board with me on this at all and asked what I wanted them to do - I replied more than the bare minimum. Didnt seem happy with that
...

Jusge called us back and the intial preamble was not favourable. She was listing off all the maintenence that Thomson had done and that minimum maintenence was enough.

She felt that this was an extraordinary circumstance (reverse thruster failure) as there was no prior warning that Thomson could have seen.

Doesn't exactly sound like she was (a) being impartial and (b) having regard to the key points of the law!

ftd83 wrote: »

She then said a big 'however' and that Thomson also need to show reasonable measures that they minimized delay which was certainly not proven!

Given that judges seem determined to not apply the EC correctly, it appears that this may be the point to emphasise. I suspect, in my case, that when I ask the question they will struggle to demonstrate that they did anything!

Anyway, good to see another success.

ftd83

Interesting point you make David_e, I was pretty annoyed when the judge bought the EC excuses that Thomson were making. I thouht my argument was watertight.

I forgot to mention also that I found some information on 'Croon' that someone on the forum had asked about. Thomson had included this in their bundle but never used it today. I had previously looked this up incase, it is essenitslly part of an airline industry book on how they think EC 261/2004 should be interpreted.

You guessed it - written by an airline industry CEO!!:rotfl:
It is NOT a legal case of any kind.

I asked the barrister about this on the way out about this. He said 'if I had brought this up what would you have said?'. I replied 'this is an airline industry book and not case law, written by a biased author and is not applicable in any law your honour'. He just smiled.

I think these guys quickly assess who they are up against and how well prepared you are. One think I learned today is that you really need to drive home your points, I made a big play on the reasonable measures as this was so easy. I perhaps should have spelt it out clearer about EC.

Anyone going to court or thinking of it, you must make your argument, you wont get 400 euro for sitting there quietly!!

JPears

It is a disturbing trend that judges seem to be riding rough shod over the EC question. Is it that they just aren't bothering to actually look at the reg 261/2004 and case law and understand it to apply it correctly?

Is there anyway the man on the clapham omnibus can collectively request HM Courts to address this issue promptly, with uniformity in court hearings?
It wouldn't be allowed in my profession, like ftd83 where evidence based decisions are paramount. not just the whim of the individual.

David_e

JPears wrote: »

It is a disturbing trend that judges seem to be riding rough shod over the EC question. Is it that they just aren't bothering to actually look at the reg 261/2004 and case law and understand it to apply it correctly?

Is there anyway the man on the clapham omnibus can collectively request HM Courts to address this issue promptly, with uniformity in court hearings?
It wouldn't be allowed in my profession, like ftd83 where evidence based decisions are paramount. not just the whim of the individual.

Could not agree more. It did occur to me that judges might be issued (as professionals in any industry might) with updates on current topics of interest - or even with specific instructions on matters of particular current note.

I did try to establish who was the top person and wikipedia suggests it's the Lord Chief Justice of England and Wales (for those in those countries!).

This tells you how to address him, but doesn't give details of where/how he can be contacted:

http://www.debretts.com/forms-of-address/professions/legal/lord-chief-justice.aspx

Update:

http://www.justanswer.com/uk-law/1hory-please-advise-postal-address-lord-chief.html

I would be more than happy to write but wonder if a first hand account from an unsuccessful claimant might carry substantially more weight?