Flight delay and cancellation compensation, Tui/Thomson ONLY

David_e

Cardiffkoook wrote: »

Hi I have issued a claim against TUI UK LTD, TUI have responded and have advised that they cannot be pursued as the operating carrier was Thomson Airways Ltd.

My original paperwork clearly states that my contract is with TUI UKLTD.

Do i respond to the defence or do i need to amend my claim to issue against Thomson Airways Ltd.

As no other issues have been raised and my contract is with TUI does this put me in a strong position or can TUI/Thomson bring up further issues at a later stage?

Thanks.

As far as I am aware, your claim is against the airline with which you flew. It does seem counterintuitive not to pursue the company that you contracted with but this isn't a contractual dispute; its a claim for stautory compensation against the airlines that got you to your destination late.

I suspect that you will need to need to apply to add/substitute Thomson. See, for example, this posting by CobyBenson:

http://forums.moneysavingexpert.com/showpost.php?p=63541199&postcount=3486

There's plenty on this very subject which demonstrates the vaue in doing your research at each stage of the process.

Kew73

Kew73 wrote: »

I've also received a second stay letter from Thomson today -this time relating to Huzar. The covering letter says that they've requested a stay 'as we are aware that points relevant to this case are to be considered by the Court of Appeal' and they 'expect the Court to stay the matter pending the outcomes of the appeal which is likely to be heard mid 2014.
- surely this is all ifs and buts at this stage? When will we find out if the appeal has actually been granted?

The letter continues...
'We appreciate that this will delay things further, however it is important for both of us to have some clarity concerning the law. We hope that you are agreeable to the same and will notify the Court of your agreement'.

Should i now notify the court of my disagreement (on the basis that the appeal hasn't been granted?). Not sure what to do as my case will probably be stayed because of the Dawson appeal anyway??

Really grateful for any advice

Ok, so, reading across the various threads, my conclusion is that there's nothing I can do about the Dawson stay but I should contact the court to register my disagreement to the Huzar stay request on the basis that I am relying on Walletin-Hermann & Sturgeon (precedent case law) so there's no reason why it can't continue. Presumably I should therefore not include Huzar in my bundle when the time comes?
This is all new to me so if anyone has any further guidance/reassurance, it would be much appreciated! Thanks

razorsedge

chezza2524 wrote: »

Hi All,

I have just received my new allocation to the court (it was transferred to one court and then transferred to another). My letter doesn't give me a court date yet, but it states
" Paragraphs 3 to 9 of the defence are struck out pursuant to CPR 3.4(2)(a). Regulation 2027/97 has no application to the claim, which does not allege an accident: Bogiatzi -v- Deutscher Luftpool. Two year limitation period does not apply to claim under Regulation 261/2004: More -v- KLM."

Does this mean I do not need to prepare to fight this in court? I know this sounds like a stupid question, but I don't want to go to court unprepared.

Thank you
Chezza

I have just sent you a PM

Cubatony2002

I have just penned the following letter to the Court re Thomsons request for a stay following advice from a solicitor friend:

I am writing with reference to the copy correspondence that I have received from the Defendant dated xx/xx/xx requesting a stay pending the Court of Appeal judgement on the HHJ Platts case.

The Wallentin judgement is settled EC law which effectively provides that that airlines could rarely rely on the defence of extraordinary circumstances arising from technical problems with an aircraft. The Huzar case was the UK courts interpretation of that such that effectively any delay arising out of a technical problem became a strict liability offence, which technically it isn't as there are still some small circumstances when the extraordinary circumstance will be available.

The points that the Claimant wishes to raise are such that the case falls within the Wallentin scenario irrespective of the outcome of the Appeal in Huzar. The Claimant reasonably argues that this should not make any difference to how the Court should treat the case. The points that the Claimant will rely on are already settled law in Wallentin. Huzar’s appeal will decide whether the HHJ Platts was right to dismiss the foreseeability/expectation of the fault as partly relevant as the Judge held that it was the resolution of the technical problem that was the extraordinary circumstance and not the technical fault itself.

The Wallentin judgment makes clear that only those technical faults that are “not inherent in the normal exercise of the activity of the carrier concerned and are beyond the actual control of that carrier on account of its nature of origin” are capable of giving rise to an extraordinary circumstance.

Effectively Wallentin ruled that routine technical faults are not "exceptional". The court's reasoning recognises that airlines invariably face technical problems. Checking for, and fixing these, is an inherent part of their business. The mere fact that an airline has complied with the legal minimum maintenance requirement will not exempt it from liability when something mechanical goes wrong. Upon reading the witness statements provided by the Defendant in their Disclosure Documents, this lack of exemption becomes even more apparent.

The Claimant submits that they would have sufficient prospects to argue that the appeal in Huzar would have no effect in this case. The Claimant therefore respectfully asks that the stay not be granted.

I also noticed in their bundle that a witness statement for case totally irrelevant to mine has been included. Does this mean that the Airline has contravened the Data Protection Act?

Cuba T

andresykes

Hi. Just received my letter from Thomson asking for the case to be stayed until after the outcome of the Dawson appeal. I guess there's not much I can about that as I'm assuming its unlikely that a DJ will ignore Thomson's request. Do I need to write to the court and confirm my agreement to this?

In Thomson's letter to the court they initially argued that as well as waiting for the Dawson appeal, they should also wait for the Huzar appeal as this is "...the principal dispute between the parties..." In my case the EC claimed by Thomson was not a technical problem but a delay to a flight 2 before ours caused by bad weather. Am I wrong to assume that the Huzar ruling has nothing to do with out claim?

A couple of other things - Thomson repeatedly miss spell my surname (both in their defence and correspondence). I don't think I have a very difficult to spell surname. Should I draw this to the attention of the court. Also on from N180 the Small Claims Allocation questionnaire Thomson have ticked that the Small Claims track is not the appropriate track for this - although they haven't explained why in the box provided. Again do I bring this to the Courts attention?

Thanks in advance.

andresykes

Ok thanks for the advice.

I ticked on N180 that is was suitable for the small claims track because it had a low value and wasn't overly complex. I was kind of thinking that maybe it was another Thomson error i.e. they had meant to tick yes but mistakenly ticked no and this was why there was no explanation in the box. Do you know if everyone else's claims have been through the small claims track?

laticsforlife

andresykes wrote: »

Thomson repeatedly miss spell my surname (both in their defence and correspondence). I don't think I have a very difficult to spell surname. Should I draw this to the attention of the court.

I would NOT bring this to the Courts attention YET.

Better to wait until the day and stick a very small knife in at the start to say that your name has been spelt incorrectly and let the Judge see what idiots Thomsons are. It might only be a small issue, but it sows a tiny seed of doubt in his/her mind, and immediatly puts you on the front foot (it also will help settle your nerves down to speaking in a Court proceeding situation)

andresykes

laticsforlife wrote: »

I would NOT bring this to the Courts attention YET.

Better to wait until the day and stick a very small knife in at the start to say that your name has been spelt incorrectly and let the Judge see what idiots Thomsons are. It might only be a small issue, but it sows a tiny seed of doubt in his/her mind, and immediatly puts you on the front foot (it also will help settle your nerves down to speaking in a Court proceeding situation)

Ok that's interesting. It seems that even though I am in the early stages of the process I've already encountered multiple errors:
1. Being told the EC was technical then it was weather.
2. Miss-spelt surname name.
3. Reference to the Huzar case which is irrelevant to mine.
4. Confusion over the claims track.
They don't appear to be a very professional outfit!

andresykes

Just re-read their letter to the court - they quote the case of Hazar v Jet2 not Huzar v Jet2. It's quite comical the lack of care and attention to detail!!

andresykes

Just rang Thomson legal for clarification before I write to the DJ. He apologises for the errors - yes it's Huzar not Hazar, yes Huzar is irrelevant to my case and yes he ticked the wrong box on the N180 (should be small claims track). Very sloppy people.