We'd like to remind Forumites to please avoid political debate on the Forum... Read More »
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
Flight delay and cancellation compensation, Tui/Thomson ONLY
Options
Comments
-
Cherrycherry wrote: »Hi all,
I have just received my compensation rejection for my delayed flight to Punta Cana this September. The flight was delayed over 5 hours due to technical issue on the previous flight. This is the letter I've got today:
Dear Mr........
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.
The cause of your delay was as a direct result of a knock-on effect of the aircraft that was scheduled to service your flight. As the previous day this flight experienced a technical issue prior to take off following the aircraft completing its pre-flight checks. Therefore as this was something that was undetectable, this is classified as Extraordinary Circumstances
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, Easy Jet 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 an "unexpected flight safety shortcoming" arising midflight from 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 manufactures recommendations.
In the case of the issue that affected your aircraft, 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.
Bla bla bla...
Yours sincerely....
I assume they are sending the same response to everyone
Court?
What a rambling load of nonsense. However this letter is something of a home goal.
Take the expression:"The cause of your delay was as a direct result of a knock-on effect of the aircraft that was scheduled to service your flight. As the previous day this flight experienced a technical issue prior to take off following the aircraft completing its pre-flight checks. "
Then study Case C-22/11 Finnair Oyj v Timy Lassooy and you'll see that Thomson just burned their bridges and lost this case.
Sue them and best of luck.0 -
I don't use MCOL except for the simplest of claims. For a start you can't fit many words on the form. Your Particulars of Claim brings out your story in numbered paragraphs but you don't need to evidence the law at this stage. Don't assume the judge knows any of the cases or what they mean - your job is to present them. Some of your paragraphs could say something along the lines of:"6. In its letter to the Claimant dated **th March, 2013 the Defendant admits that the delay was caused not by any issue relating to the Claimant's flight, but instead to an issue relating to a previous flight.At the disclosure stage of the litigation you copy out the Finnair case and their letter and disclose these to the court then, along with any other cases you wish to rely on.PARTICULARS
The Defendant states: ""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."
7. The Claimant puts the Defendant to strict proof as to any unexpected flight safety shortcoming as alleged or at all.
8. It is settled law that extraordinary circumstances arising on one flight does not create extraordinary circumstances on any subsequent flight (Case C-22/11 Finnair Oyj v Timy Lassooy). The Claimant avers that a defence to this claim of Extraordinary Circumstances is therefore not available to the Defendant. "
Best of luck.0 -
Been fobbed by Thomas Cook siting technical faults can not be anticipated by them for causing delays.
Referring to: Flight TCX234L leaving Cancun for Manchester on Monday 15th Dec 2008 at 16.05, arriving in Manchester Tuesday 16th Dec 2008 at 07.30. Actual late departure from Cancun Tuesday 16th Dec 2008 at 17.40, acctually arriving in Manchester Wednesday 17th Dec 2008 at 09.05.
Delay was caused by faulty spoiler actuator.
Knock on effect left passengers in Las Vagas delayed also.
We are looking to persue a legal claim against Thomas Cook.
Can anyone suggest how to take matters forward?
Anyone else affected by the delay of this flight please contact us.
Many Thanks.0 -
Does anyone out there have the actual take off and landing details of Thomson Airlines flight number TOM6338 from Monastir to East Midlands of the 19th Dec 2007?
We believe this flight was delayed 3-4 hours due to a technical fault with the air conditioning.
Please respond asap or I will have to incure cost with 'flight stastics'.
Please help!!!0 -
Seething_of_Sheffield wrote: »Does anyone out there have the actual take off and landing details of Thomson Airlines flight number TOM6338 from Monastir to East Midlands of the 19th Dec 2007?
We believe this flight was delayed 3-4 hours due to a technical fault with the air conditioning.
Please respond asap or I will have to incure cost with 'flight stastics'.
Please help!!!
I used flightstats dot co dot uk
Scheduled Arrival: 2:45 PM - Wed Dec-19-2007
Actual Arrival: 6:02 PM - Wed Dec-19-20070 -
Seething_of_Sheffield wrote: »Been fobbed by Thomas Cook siting technical faults can not be anticipated by them for causing delays.
Referring to: Flight TCX234L leaving Cancun for Manchester on Monday 15th Dec 2008 at 16.05, arriving in Manchester Tuesday 16th Dec 2008 at 07.30. Actual late departure from Cancun Tuesday 16th Dec 2008 at 17.40, acctually arriving in Manchester Wednesday 17th Dec 2008 at 09.05.
Delay was caused by faulty spoiler actuator.
Knock on effect left passengers in Las Vagas delayed also.
We are looking to persue a legal claim against Thomas Cook.
Can anyone suggest how to take matters forward?
Anyone else affected by the delay of this flight please contact us.
Many Thanks.
I suggest you post this in the Thomas Cook thread.0 -
The CAA is a superfluous step, but one that can run concurrently with the issue of proceedings. There is only one language Thomson understand and that is litigation. Give 14 days' notice of the service of proceedings today.
Hi Mark,
A few posts on this thread suggest court action is initiated differently in Scotland - can you advise please? Not sure what to do now I've sent my complaint to the CAA and my 5 years is up in September!0 -
We have recently been contacted by the CAA regarding our stance on claims for compensation under Regulation 261. This centred on our refusual to accept claims that were made more than 28 days after you returned from your holiday. Following response to your claim.
It is with regret that I note your flight with us was delayed. Whilst delays are an unfortunate part of air travel. I would like to assure you that a lot of work goes on behind the scenes to ensure that any disruption to our passengers is kept to an absolute minimum.
When a delay is initially identified, it is not always immediately apparent as to when a revised take off time can be secured. A number of factors have to be considered, which can vary dependent on the reason for the delay, and quite often we are reliant on outside influences, such as Airport authorities or Aie Traffic Control. Throughout, however, as soon as confirmed information is available, this is passed onto our customers as quickly as possible through our handling agents at the airport.
Although delays do occur on occasion, they can arise for a number of different reasons, and having carried out a full investigation the specific circumstances surrounding thedelay to your own flight were of a technical nature, which were extraordinary, despite Thomas Cook taking all reasonable precautions necessary to prevent the situation. All aircraft can experience technical problems that are totally unforeseen, despite all reasonable attempts to ensurethey are maintained to a good standard, in line with CAA regulations. These situations can be compared to maintenance of your own car, which can break down at any time without prior warning, regardless of its service history, and would be considered completely beyond the owners' control.
I can see that passengers were providedwith welfare during this time, which was deemed appropriate for the length of your delay. It is with regret to inform you that we will be unable to consider any claims for compensation as a result of the delay to your flight.
please be assured that on-time performance is a key for us as a business, and we constantly review our operations to ensure we deliver the best results, and services I would like to offer our apologies for any inconvenience you were caused on this occasion and hope that despite this, your stay was found to be an enjoyable one.
Customer Relations Team
4 Hour delay Manchester to Palma 20120 -
Hi Mark,
A few posts on this thread suggest court action is initiated differently in Scotland - can you advise please? Not sure what to do now I've sent my complaint to the CAA and my 5 years is up in September!
Check out the European Small Claims Procedure using Form A. Issue these proceedings in your local Scottish Small Claims Court for service on the airline in England. Tick the box saying 'decide the case on the documents' so you don't have to attend any hearings.
Best of luck with your claim.0
Confirm your email address to Create Threads and Reply

Categories
- All Categories
- 351.1K Banking & Borrowing
- 253.2K Reduce Debt & Boost Income
- 453.7K Spending & Discounts
- 244.1K Work, Benefits & Business
- 599.2K Mortgages, Homes & Bills
- 177K Life & Family
- 257.5K Travel & Transport
- 1.5M Hobbies & Leisure
- 16.1K Discuss & Feedback
- 37.6K Read-Only Boards