Flight delay and cancellation compensation, Tui/Thomson ONLY

Wight_Rabbit

Not sure Lozza but I doubt Jade Simpson actually wrote that letter or even understand any of the words in it herself. The 2 year letter I had - I had the misfortune of having to deal with after travel and when I started quizzing the operator on the legislation all I got was "I can't comment I am not legally trained". When I asked to speak to someone that was trained I was the told "Sorry they don't speak to the public".

Thomson are a joke of a company. Phone up the sales line though and you will get through very fast and they will take you cash quick enough. After Sales is clearly lacking and has all the finesse and subtlety of a thumb in the eye.

Lozza123

Wight_Rabbit wrote: »

Not sure Lozza but I doubt Jade Simpson actually wrote that letter or even understand any of the words in it herself. The 2 year letter I had - I had the misfortune of having to deal with after travel and when I started quizzing the operator on the legislation all I got was "I can't comment I am not legally trained". When I asked to speak to someone that was trained I was the told "Sorry they don't speak to the public".

Thomson are a joke of a company. Phone up the sales line though and you will get through very fast and they will take you cash quick enough. After Sales is clearly lacking and has all the finesse and subtlety of a thumb in the eye.

Just hope someone can advise me on what to do because I haven't got a clue to be honest. Thanks anyway.

Bonters

Lozza - my best suggestion would be to ask them for documentary evidence of the exact fault so that you can consider it and take proper advice in relation to the question of Extraordinary Circumstances. If what they are claiming is in fact true, it will always be subjective for a Court to consider whether it does or it doesn't fall within the scope of EC's. But at the moment they have only claimed a particular fault, and are saying that it could not be detected during normal routine maintenance. I suspect that if you issued process, they would not want it testing and would settle out of court. But it's always gonna be a game of poker at that stage, and you will always be risking your initial court costs. You pays yer money and all that stuff. I can see the problem of any airline accepting a claim. Once it is accepted, then that is an acceptance that they should be paying out every passenger on that aircraft, and it's gonna get very costly indeed! So they're more or less bound to refute every claim. They make the point also that all of this may well push up the cost of air travel, and I don't doubt it will. If only they would treat the fare paying passengers better when there is a problem, all of this might not be happening at all. Perhaps now they will, and maybe we'll just have to be thankful for that? Best of luck with your claim anyway

blondmark

Lozza123 wrote: »

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.

I was slipping in and out of coma battling through this until this bit jumped off the page at me:

"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."

So if it's right that your flight didn't have a problem, but the plane intended for you had a problem in its previous flight, we are talking about the knock-on effect of alleged extraordinary circumstances.

So that's C-22/11 Finnair Oyj v Timy Lassooy - read up on it.

As your negotiations have now reached deadlock you should issue proceedings without further delay.

blondmark

Ich wrote: »

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?

That old case dredged up from decades ago before the Supreme Court even existed is no longer good law. It has been well and truly overruled by the highest court in Europe. I actually thought it was a joke when I first heard that this was what Thomson were hanging their hopes on.

There is no possibility of this dragging on; it has already been settled.

Bonters

Lozza (and anyone else for that matter) - there is always the alternative of resorting to a professional claims company such as eudelay.co.uk, who usually operate on a no win no fee basis, but in the event of a win, typically take about 25% of the award. If your purpose is to give the airline a bloodied nose and make them pay up, without being in desperate need of the money yourself, this might prove a reasonable alternative. It removes the need for you to prepare complex documents and risk the outlay of a County Court claim. Be assured I have no connection with any such company, but it is a viable alternative for some and I might even consider it myself, just for the sake of removing the frustration!

Mark2spark

The UK ruling that is being referred to is quite heavy reading, but fathomable to Joe Bloggs.

http://www.publications.parliament.uk/pa/ld199697/ldjudgmt/jd961214/abnett02.htm

Firstly, it is a House of Lords ruling, not a UK Supreme Court ruling. It was made in 1996, long before EU261 was even dreamt up.

The operative part of the musings by the Lords is this:

The idea that an action of damages may be brought by a passenger against the carrier outside the Convention in the cases covered by article 17 - which is the issue in the present case - seems to be entirely contrary to the system which these two articles were designed to create.
The reference in the opening words of article 24(2) to "the cases covered by articles 17" does, of course, invite the question whether article 17 was intended to cover only those cases for which the carrier is liable in damages under that article. The answer to that question may indeed be said to lie at the heart of this case. In my opinion the answer to it is to be found not by an exact analysis of the particular words used but by a consideration of the whole purpose of the article. In its context the purpose seems to me to be to prescribe the circumstances - that is to say, the only circumstances - in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air.
The phrase "the cases covered by article 17" extends therefore to all claims made by the passenger against the carrier arising out of international carriage by air, other than claims for damage to his registered baggage which must be dealt with under article 18 and claims for delay which must be dealt with under article 19. The words "however founded" which appear in article 24(1) and are applied to passenger's claims by article 24(2) support this approach. The intention seems to be to provide a secure regime, within which the restriction on the carrier's freedom of contract is to operate. Benefits are given to the passenger in return, but only in clearly defined circumstances to which the limits of liability set out by the Convention are to apply. To permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier. Thus the purpose is to ensure that, in all questions relating to the carrier's liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action. The carrier does not need to make provision for the risk of being subjected to such remedies, because the whole matter is regulated by the Convention.
Only two other articles may be mentioned in this analysis: articles 28 and 29. These restrict the places in which "an action for damages" must be brought, and provide that "the right to damages" shall be extinguished if an action is not brought within two years. Here again it seems that a balance has been struck in the interests of uniformity of treatment and of certainty. I see no sign in the generality with which these provisions have been expressed of a recognition that there may be some actions of damages arising from the international carriage of passengers by air which are not subject to these rules. It would be largely destructive of the system which this chapter seems to have been designed to lay down if a passenger were to be able, for example, to maintain a claim of damages for non-bodily injury, for loss of or damage to the personal possessions which he had with him inside the aircraft or for economic loss, outside the conditions and limits set by the Convention while maintaining a claim under the Convention for the bodily injury. No doubt it was for this reason that it was conceded that, if he had a claim under article 17, the passenger would not be able to maintain any other claim against the carrier arising out of the same incident. But it seems to me that, by parity of reasoning, the same approach must be taken to cases arising out of international carriage by air where he has no claim under article 17 at all.

The House of Lords dismissed the appeals as being out of time, ruling that the Conventions set a different time frame - 2 years - for bringing claims arising from international carriage by air, than the national limit of 6 years.
However, this was for a claim for damages, using the Convention. Some might observe that the circumstances of the appeal heard - basically compensation sought by passengers against British Airways for landing in Kuwait for refuelling on the day that Iraq invaded and the Gulf war started, and the passengers were taken prisoner and moved to Baghdad for a month - is vastly different to the simple EU261 ruling in the first place.

EU261 is not a claim for damages. It is a fixed monetary payment for inconvenience caused by delay, cancellation, or denied boarding, and operates before any claim under the Convention can be made, and it does not stop any other action also being made under the Convention.
Further to that, it is as Centipede posts above, the ECJ was specifically asked in Cuadrench More v KLM whether the Convention time limits apply, or the normal member states time limits, with the ECJ ruling for the latter.

So we have;
A Barcelona Court asking the ECJ if it is the time limit of the Montreal/Warsaw Convention that applies (2 years), or the member states other normal timelines. (in the UK that's 6 years, 5 in Scotland)
The ECJ ruling that it is the member states normal time frames, and not the Conventions time frames.
And Thomson saying that in the UK the normal time frame for air travel claims is the Conventions rules, ie 2 years.

Which brings us back to the start.

I believe that a District Judge will adopt the Cuadrench More v KLM rule, ie 6 years for the UK.

Mark2spark

IMO it might be worth changing the wording of the template letters so that the word 'claim', or 'claiming' is not used, instead, something like;

The lead passenger applies for the fixed compensation payment of €xxx per passenger under EU261/2004.
This is not to be confused with a claim for damages covered by the Montreal Convention.

Mark2spark

Lozza, you are the subject of good old Thomson 'spin'.
Time for Court.

blondmark

The issues for the court to decide are far more fundamental than fiddling with semantics, and there is no reason not to call a claim a claim.

Here are the only relevant issues for a court to address:

Q1: Did the ECJ rule that claims can be made by passengers for flight delays and cancellation under Regulation 261/2004?

A1: Yes, therefore the 1996 case of Sidhu v. British Airways Plc has now been overruled.

Q2: Are time limits for bringing 261/2004 claims determined by national law?

A2: Yes (Case C-139/11 (Joan Cuadrench More v KLM)). Our national law is Section 9 of the Limitation Act [1980] which provides that "an action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date of which the cause of action accrued.”

Q3: Do judgments of the ECJ have supremacy over judgments of the House of Lords?

A3: Yes. Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR1