Flight delay and cancellation compensation, Tui/Thomson ONLY

panholio

Great result jackoonline.

Any more details about your case? I'm guessing if you were waiting on a court date they had submitted a defense?

I'm interested in what the thought process is a Thomson - they seem to defend a good few claims. I wonder what tipped the balance with yours and made them offer to settle?

jason8113

We were delayed over 10 hours on a flight from Leeds to Majorca (25/05). sent loads of letters to thomsons, phone calls etc never returned a letter or phone call. CAA less than useless. So did the NBA - ignored, put them on court and lo and behold they are claiming EC.

Just had phone call from them offering me £770 (claim was for £1,446 ) i rejected the claim, i did say i would accept an offer of £1,032 which they rejected.
They said if i went to court and lost i would have to pay their fess of £700?
Do you think i should have accepted? am i being greedy?
The thing is a might have accepted £700 in June (the date of my first letter) i might have accepted it. But they didn't treat us well at the airport and they have treat me well since.

Vauban

How many of you are claiming?

You are not liable for the legal fees - that is untrue. The court may order to pay the reasonable travel expenses of the other side, but I'e not heard anyone having to do this - even those who lost in front of an unsympathetic judge.

jason8113

I am claiming for four people at 400 euros each, plus the court fee of £70. He used an exhange rate of 0.86.

jason8113

jackoonline wrote: »

Hi, just a quick post to say that I received a call from Thomson legal dept today offering to settle at £750. I am claiming 400 euro x 3. I said that I thought it an unreasonable offer and was now just waiting for the court date. She asked what I thought was reasonable, is responded by saying we'd be looking at £1000. She immediately agreed and has said Chq will be out shortly. Result!!

i think i was on your flight (leeds to Majorca 25/05/2013) we are claiming 4*400 euro they offered us £770 i said i would accept £1,032 and they rejected!?

jackoonline

jason8113 wrote: »

i think i was on your flight (leeds to Majorca 25/05/2013) we are claiming 4*400 euro they offered us £770 i said i would accept £1,032 and they rejected!?

I would stick with it. What stage are you at? Our judge (at Leeds county court) sent out a court order to Thomsons for more details surrounding the EC defence that they were claiming. I suspected that was because a few from that flight were putting claims in.

Happy to share all my paperwork I received from them if it helps. Send me a private message with your email details.

jackoonline

panholio wrote: »

Great result jackoonline.

Any more details about your case? I'm guessing if you were waiting on a court date they had submitted a defense?

I'm interested in what the thought process is a Thomson - they seem to defend a good few claims. I wonder what tipped the balance with yours and made them offer to settle?

Originally claimed our delay was knock on effect then in their defense they quoted an EC with our flight. I have since asked for the technical logs for the flight which they ignored. Our judge then asked for more detail. If you look at post 3412, my letter is there. I presume this is what prompted them to contact me with settlement.

Tunisian_girl

This is a copy of my first refusal dated March this year.
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.

I sent this to the CAA and they asked Thomsons to review their decision. Now lo and behold this is the second refusal received yesterday which totally contradicts the first one.

With regards to your flight, TOM435, after reviewing our internal flight reports I can see that the cause of the delay to your flight was due to a technical fault on the aircraft originally due to operate your flight. This fault meant that the aircraft could not operate without receiving assessment and repair where necessary. In order to minimise the delay to your flight a new aircraft was sourced as soon as possible. As the fault was not the result of poor maintenance and could not have been predicted it is therefore classed as extraordinary circumstances. Your flight was then further delayed due to the aircraft having to return to the stand due to an unruly passenger. As I'm sure you can appreciate, unruly passengers can pose a safety risk to our passengers and crew and therefore this situation had to be dealt with before the flight could continue. As this is also outside of our control, it would also be classed as extraordinary circumstances.

We can assure you that the maintenance of our aircraft is taken extremely seriously. As well as complying with stringent requirement imposed on all airlines by various pieces of legislation, we undertake a process of monitoring all faults on our aircraft so that, if necessary, we can adapt our maintenance process accordingly.

Along with our routine maintenance procedures, an aircraft will undergo a number of pre-flight safety checks. Only when both the engineer and the pilot are satisfied the aircraft is fit for service will the aircraft be able to depart.

So as to help both customers and airlines, the European Commission has recently published draft guidelines as to what amounts to extraordinary circumstances. This list was prepared with the assistance of the various national bodies responsible for regulating the aviation industry across Europe.

In this draft, the Commission has intimated that the following would be considered extraordinary circumstances:

"Failure of necessary or required aircraft systems (for example the cooling system, avionics system, flight control system, flaps, slats, rudders, thrust reverser, landing gear) either immediately prior to departure or in-flight (where those systems had been maintained in accordance with the required maintenance programme)."

While we are of course sorry to hear of any disruption caused by this delay, we do feel that as the aircraft was well maintained and that no problems were found during the pre-flight check, this incident was not something that we could have foreseen or prevented.

We do hope that we have addressed any questions you may have had in respect of the circumstances around the delay to your flight. If you are not satisfied with our response, you are of course able to raise this matter with the Civil Aviation Authority. They will perform a view of the circumstances and decide whether or not the delay to your flight was down to extraordinary circumstances. This is a free service they offer to all passengers.

I then telephoned and to say I went ballistic is an understatement. I wanted to know why they had changed their reason for refusal and where the hell they had plucked the unruly passenger from. I then got this.

Thank you for taking the time to contact us further. I can see previously that we have responded to you in relation to your claim under EU Regulation 261/2004.

With regards to the unruly passenger, upon further investigation I can see that this occurred on the flight previous to yours, this combined with the technical issue that occurred caused the delay to your flight. As you can appreciate this is something that is out of our direct control therefore this is classed as extraordinary circumstances.

I can confirm that this will remain our final position and with that in mind, we're unable to offer any further comments or assistance in relation to your delay. It is with regret that we have been unable to resolve this matter to your satisfaction.

Please can someone advise as to what to do now. This has been ongoing for nearly 1 year. Thanks.

David_e

Tunisian_girl wrote: »

Please can someone advise as to what to do now.

You'll find pretty well all you need in the FAQs.

111KAB

Tunisian_girl wrote: »

Please can someone advise as to what to do now.

As David_e said + you may want to look at recent Jet2 appeal case handled by Bott & Co.