Flight delay and cancellation compensation, Tui/Thomson ONLY

Vauban

Well then it doesn't really apply. But I think your case it pretty strong, assuming a significant gap between your flight and the original incidents. I too would be inclined to push on: you've already paid your hearing fee, and it's too late to get it back.

legal_magpie

Definitely. The airlines are on the run and any stays will let them off the hook as many people will simply lose interest.

Moneyedout

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:
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.

We are having problems with Thomson regarding the name of the defendant and like you we have named TUI Travel Plc.
They are asking for the case to be dismissed on these grounds.
Our problem is that we cannot reissue our claim as we are now outside the 6 years of which they are well aware.
You say that they did not ask you to reissue your claim so it must be possible for them to accept a substitute defendant when this easy mistake is made should they choose to do so. Did they put this in writing about not reissuing your claim? If they did, would it be possible for us to have a copy in order to prove that they are using this tact because of the time issue alone.
Your case number etc for reference would be helpful as we are nearing the mediation stage although I understand that they always refuse this.
Must admit to being a little scared of the court in case I am not well enough prepared.
regards

andresykes

If you PM me your e-mail I'll forward a copy to you. The exact wording of their defence is:

"The Defendant asks the Court to compel the Claimant to substitute TUI UK LTD for the air carrier, Thomson Airways. As both entities share the same legal department, reservice of the claim form and particulars are to be dispensed with".

andresykes

Anyone point me in the right direction for their defence of EC's caused by bad weather not to our flight but to one 2 before i.e. a knock on delay.

Our plane initially left Glasgow (to fly Glasgow - Zante) on 24.5.09 at 11.10pm (3hrs 45mins flight) but was diverted to Corfu. Our flight was due to leave at 9.00am on 25.5.09 but was delayed approx. 6 hours. Our eventual departure time is perhaps 12 hours after Thomson probably became aware of the weather issue in Zante. Is this EC's??????

I read on a BA forum that don't consider knock on delays as EC's and usually pay compensation.

Lewigreg081281

Lewigreg081281 wrote: »

Hi hopefully someone can advise on whether I'm likely to be successful.

Basically on a recent long haul flight for a family wedding all the party were delayed on both the outward and inbound journey.

2hrs delay going and 4hrs coming back.

I've tried writing to Thomson and received a load of gobbledygook (basically we aren't giving you any compensation) back hopefully someone will understand their response. From there I contacted the CAA who have replied and said they have sent the complaint back to Thomson to be reassessed. Do I now have a chance?

Here is Thomson's initial reply to the complaint:


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

As part of our investigation I have checked our flight reports and can see your flight was delayed due to a technical defect being detected prior to a previous scheduled flight. This then caused a knock on effect to your flight. The aircraft is unable to be legally dispatched with this defect. Therefore the cause of this delay sits under Extraordinary Circumstances, as the technical issue with the aircraft was not due to poor maintenance and is not something that could have been foreseen.

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 EC not the delay that may have been its effect.

"In the light of the foregoing the answer to question 1 in Case C 629/10 is that Articles 5 to 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed are entitled to compensation under that regulation where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier."

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 due to a delay to another aircraft due to "unexpected flight safety shortcoming" arising from the discovery of a technical defect that doesn't fall into the category of something that was or ought to have been discovered during routine maintenance.

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 the issue that affected your aircraft, the technical problem was detected just prior to its departure and 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. Therefore, the circumstances are not of a kind which would fall outside of the definition of Extraordinary Circumstances.

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,

It's really annoying to say we didn't get offered any food vouchers or refreshments for the 4hr delay in particular on the way back. Our party had spent a lot of money with Thomson as i'm sure many of the passengers did

I have today received a reply from the CAA:

Dear passenger,

We are writing to update you on your claim for compensation for a disrupted flight. Please accept our apologies if you have received this email previously. A number of passengers may not have received our earlier update and this email reconfirms the current status of your claim. As you may be aware, compensation for disrupted flights is subject to whether the reason for the disruption was beyond the airline’s control, known as ‘extraordinary circumstances’ and whether the airline undertook reasonable measures to avoid the consequences of the disruption.

The Civil Aviation Authority has been working with other National Enforcement Bodies across Europe to help understand what ‘extraordinary circumstances’ are in relation to flight disruptions, in light of Regulation EC 261/2004 and European case law. The results of that work have been published on the European Commission’s website:

http://ec.europa.eu/transport/themes/passengers/air/doc/neb-extraordinary-circumstances-list.pdf

You can read more about the CAA’s role for resolving disputes about disrupted flights here:

https://www.caa.co.uk/extraordinarycircumstances


We have asked airlines to reassess complaints that have been received by the CAA in light of this new guidance. We have now sent your complaint back to the airline for their reassessment and they will respond to you directly within the next eight weeks.

We have closed your complaint and are unable to enter into further correspondence on this issue as your complaint is with the airline for a reassessment. Please note that at this stage, we have not made an assessment as to whether compensation may be due on your specific claim under the Regulation.

Thanks

Today I have had a couple of missed calls from 0844 871 1578 - when I typed it into google it came up as Thomson complaints team. Has anyone else had this? I'll try and answer it tomorrow if they call back.

Thanks

jenn1ewest1

dp2603 wrote: »

Due in court next Monday and received a letter from Thomson today. They have asked the court to hear only the EC's part of the case and not the part relating to the 2 year limitation period.
They have written;

"The Defendant has recently made the decision to proceed with an appeal on the Dawson decision. The Defendant considers in the interests of the best use of court time the Court should hear the extraordinary circumstances argument. In the event that the court should find against the Defendant the Defendant now believes the claim should then be stayed until such time that the Court of Appeal gives judgement in this matter. The Defendant submits that this is the best course of action on the following basis:

1. The Court of Appeal will be able to review the argument in far greater detail than would be possible in this case

2. The Court of Appeal decision will be a precedent decision and will allow the lower court to apply said decision".

Is there any point in asking for the case to be heard in full next Monday, as Thomson have settled other cases in which the 2 year limit featured, or alternatively asking for the whole case to be stayed until after the appeal?

I would appreciate your comments and advice.

I had exactly the same letter off thomson a few weeks ago and I have spoken to the court to proceed with the whole case due to them settling in recent cases over the two year limit as the letter is just sat on file they havent actually made a formal application just relying on what the judge says as they would have to pay a fee to have the case stayed will be watching out for your result as I am not in court until the 29th
JH

Justnan

legal_magpie wrote: »

By way of an update, the view of some judges is that because Huzar is so shattering to most of the delay cases based on technical faults, sooner or later an airline may take a test case to the Court of Appeal but unless and until they do, Huzar is likely to be followed up and down the country

I did have two earlier cases of DJs in my skeleton argument from Worcester and Huddersfield but they weren't needed
JJ

Hi Legal Magpie, could you let me have any details of the earlier cases that you quote, I think they may be useful for our claim as it seems similar to yours. thanks

flower202

Hi got to send in my response to thomsons defence and would really appreciate a copy of the huzar findings

Justnan

flower202 wrote: »

Hi got to send in my response to thomsons defence and would really appreciate a copy of the huzar findings

Flower202,There is link on the Jet2 thread.Sorry i am a newbie, cannot attach it to my post.