Flight delay and cancellation compensation, Tui/Thomson ONLY

SGP

Was anyone reading this on the above flight? A delay of 16 hours and 18 minutes, according to the letter passengers were given at the time.

Thomson alleged that the delay was caused by bad weather at Gatwick and the necessity to offload a disruptive passenger.

The problem for Thomson was that TOM4753 does not depart from Gatwick, but from Larnaca and thus was not affected by either poor weather or poorly behaved passengers.

They learned this yesterday at Peterborough County Court. They sent a barrister and she was a very good one. Tenacious, doggedly determined to get her point across and she never gave up, even during the final summing up. Nevertheless, she was given a dog of a case by Thomson and was onto a loser from the start.

A fact Thomson were informed of more than a year ago. They were given an opportunity to settle, several in fact and ignored them all and paid the price yesterday. 6% interest, calculated from the date of the flight, 4 x €400, plus court costs.

With regard to the incidents experienced by some posters involving the CEDR, I wonder if it is linked to the recent Court of Appeal case regarding mediation? PGF II SA v. OMFS Company 1 Limited [2013] EWCA Civ 1288, is a Court of Appeal case which raises, for the first time as a matter of principle, the question of the Court's response to a party which fails to respond to offers of mediation. It is worth a read.

Although the general rule in small claims is that the Court may not order a party to pay the legal costs of another party save for those fixed costs set out under CPR part 45, attributable to the issue of the Claim, these costs are limited to the issue fee and fixed costs shown on the face of the Claim Form, together with the allocation fee where appropriate. However, CPR 27.14(2)(d) empowers the Court to summarily assess costs in cases allocated to the small claims track in circumstances where “a party has behaved unreasonably”. Unfortunately, the CPR does not define unreasonable behaviour, but in PGF II SA v. OMFS Company 1 Limited [2013] the Court of Appeal, Civil Division, endorsed the view that silence in the face of an invitation to participate in alternative dispute resolution, as a general rule, was of itself unreasonable. In the above case, the defendant's silence in the fact of two requests by the claimant to mediate had been unreasonable conduct of litigation to warrant a costs sanction.

Thomson may be waking up to the fact that they cannot continue to treat consumers with such utter contempt.

David_e

RobRob888 wrote: »

I'm due in court mid December. Their defence is the 2yrs and ec. I assumed they'd fold after I include Huzar in my bundle

You are new here, aren't you?! Think we all thought that when we started!

RobRob888 wrote: »

wondering if they are now just asking for all cases over 2yrs to be delayed until after the Dawson appeal...

I suspect the answer's yes, although I'm not sure if this is the airline or the court system's call.

RobRob888 wrote: »

Do we have to go to court for them to ask for a postponement or can it be done before?
Or is there any way I can argue that we ignore the appeal and not wait?

I would press on with the process and then, if the court does put you off until the Dawson decision, at least you have progressed as far as possible for now.

I'm sure I read a post from someone who tried to have the EC aspect heard separately and the judge (in that case) wasn't having it.

JPears

SGP wrote: »

Was anyone reading this on the above flight? A delay of 16 hours and 18 minutes, according to the letter passengers were given at the time.

Thomson alleged that the delay was caused by bad weather at Gatwick and the necessity to offload a disruptive passenger.

The problem for Thomson was that TOM4753 does not depart from Gatwick, but from Larnaca and thus was not affected by either poor weather or poorly behaved passengers.

They learned this yesterday at Peterborough County Court. They sent a barrister and she was a very good one. Tenacious, doggedly determined to get her point across and she never gave up, even during the final summing up. Nevertheless, she was given a dog of a case by Thomson and was onto a loser from the start.

A fact Thomson were informed of more than a year ago. They were given an opportunity to settle, several in fact and ignored them all and paid the price yesterday. 6% interest, calculated from the date of the flight, 4 x €400, plus court costs.

With regard to the incidents experienced by some posters involving the CEDR, I wonder if it is linked to the recent Court of Appeal case regarding mediation? PGF II SA v. OMFS Company 1 Limited [2013] EWCA Civ 1288, is a Court of Appeal case which raises, for the first time as a matter of principle, the question of the Court's response to a party which fails to respond to offers of mediation. It is worth a read.

Although the general rule in small claims is that the Court may not order a party to pay the legal costs of another party save for those fixed costs set out under CPR part 45, attributable to the issue of the Claim, these costs are limited to the issue fee and fixed costs shown on the face of the Claim Form, together with the allocation fee where appropriate. However, CPR 27.14(2)(d) empowers the Court to summarily assess costs in cases allocated to the small claims track in circumstances where “a party has behaved unreasonably”. Unfortunately, the CPR does not define unreasonable behaviour, but in PGF II SA v. OMFS Company 1 Limited [2013] the Court of Appeal, Civil Division, endorsed the view that silence in the face of an invitation to participate in alternative dispute resolution, as a general rule, was of itself unreasonable. In the above case, the defendant's silence in the fact of two requests by the claimant to mediate had been unreasonable conduct of litigation to warrant a costs sanction.

Thomson may be waking up to the fact that they cannot continue to treat consumers with such utter contempt.

Interesting SGP, however I think Thomson are clutching at straws.
1. In respect of 261/2004 what is there to mediate? The fixed level of compensation is either due or it isn't, there is no grey area for negotiation or compromise. If the airline is willing to pay something, that, to the man on the Clapham omnibus, implies culpabilty or liabilty for the full, fixed amount
2. Mediation is available as part of the Small Claims track.

David_e

JPears wrote: »

Interesting SGP, however I think Thomson are clutching at straws.

And if they think referral to CEDR is such a good idea, why do they not offer to pay for it?

I'm not saying it couldn't happen, but I think it would be very harsh for a judge to view refusal of (paid) CEDR involvement in a bad light. As you say, JPears, there is a mediation option as part of the court process in any event so if you have ticked that option, you should be safe from the threat of costs.

Kew73

RobRob888 wrote: »

I haven't posted before but have been reading posts for a while.
I'm due in court mid December. Their defence is the 2yrs and ec.
I assumed they'd fold after I include Huzar in my bundle but am now wondering if they are now just asking for all cases over 2yrs to be delayed until after the Dawson appeal...
Do we have to go to court for them to ask for a postponement or can it be done before?
Or is there any way I can argue that we ignore the appeal and not wait?
Rob

Having sent my Directions Questionnaire, I'm now waiting to be allocated to court but a few weeks back, Thomson sent a letter requesting a stay until after the Dawson appeal. I phoned the court on Monday and they said they'd received the letter but Thomson hadn't paid the necessary fee so it would just continue to progress as 'normal'. I did point out that it was a bit of a waste of everyone's time if we go to court in person and then it gets stayed but there didn't seem to be any other option

socrates1882

Having looked very closely at CEDR and what they offer I certainly wouldn't recommend their services.

The mediation they provide is £48 (including VAT), is not binding and they do not explain their decision according to their T&C's. There is no appeals process to their decision and it is not binding before the court. Whilst it may be slightly quicker than the CAA route it's basically the same thing but with even less weight before the court.

The T&C's aren't clear either, but my interpretation of it is that it costs £48 per passenger. With that in mind, and if you're comfortable with the court process, you'd be far better served paying the court issue fee and going before the court. The fees are not too different, and whilst you may be liable for the other sides witness expenses if you lose, at least your judgment can be enforced and is binding.

vixi777

pryfin wrote: »

Hi there has anybody else had a phone call from thomsons to apologise for the delay on flight tom195 19 hrs delay and they say no compensation due to US aviation authorities?

Hi I was on the Cancun to Gatwick delayed flight that left just after yours. I had an answer phone message from Thomson 2 days ago just to say they were ringing to explain about the delay. They have not tried to call back and no contact number was left. They can't blame the US: staff admitted on a number of occasions that it was the fault of Thomson IT in the UK who didn't pass on our details to the TSA in the USA!

retatco

Two weeks tomorrow and Thomson still haven't responded to the Small Claims Mediation Service. There is one part of the compensation process that you could mediate over, the interest. I would be prepared to forgo the interest to avoid all the paperwork involved in the court process but nothing else. Once this mediation process has expired, which I consider it has, I want the full compensation due to myself and my wife. Thomson, if you are reading this, please note?

Lolaa

Hi

Sandra, i was on the same flight, and had a very long letter back from Thomson (i think trying to blind me with science) thinking about giving up trying to get any compensation out of them, wondered what had happened with your claim?

Caz3121

Looks like the OP has not been back online since 20 mins after posting the first post