Flight delay and cancellation compensation, Tui/Thomson ONLY

David_e

Callmac wrote: »

or are they right?

No. Doesn't sound like a true third party (eg Air Traffic) rather someone they engage as a contractor/agent etc.. It's their responsibility. They should have arrangements in place to recover their losses from the agent.

JPears

David_e wrote: »

No. Doesn't sound like a true third party (eg Air Traffic) rather someone they engage as a contractor/agent etc.. It's their responsibility. They should have arrangements in place to recover their losses from the agent.

And if they don't they need a new legal team (which we know anyway) to look at their contracts with agents, more closely...

Cubatony2002

JPears wrote: »

1. Have Thomson requested a stay using the official forms, not just a written letter? Have they contacted you to request a stay? If not I would contact them to say you will be seeking loss of earnings if court attendance is required for the stay. Or you could submit a statement, if you are objecting instead o attending, as given current evidence, a stay is likely.
I would contact the court and see if they know what is likely, explaining your potential loss of earnings. For some people that is a big whack, especially if self employed and running a business.
2. If you have requested it in the Allocations Questionaire, they should provide information. Frequently they don't (jet2 didn't in my case) but Judges don't seem bothered by this despite the facts are ones you require and maybe relying on.

Hi, thanks for the quick response.

They asked for the stay by letter:

On the 29th October 2013, Manchester County Court; on appeal from Stockport County Court, handed down a judgement on a claim for compensation for flight delay as per EC 261/2004 (Denied Boarding Regulations).

The Defendant had argued that the delay was the result of extraordinary circumstances caused by a technical fault that was neither inherent to the normal operations of the Defendant, within the control of the Defendant and could have been reasonably avoided.

The judge at first instance found that the delay was the result of extraordinary circumstances and dismissed the claim. On appeal to the Manchester County Court, HHJ Platts held that the correct test to be applied from his interpretation of the CJEU in the matter of Wallentin-Hermann v Alitalia – Linee Aeree Italiane SpA (Case C 549/07) was that the repair of any technical fault was inherent, and therefore no technical fault could amount to extraordinary circumstances; save in cases of manufacturing defects, sabotage or terrorism.

As stated in the judgement, HHJ Platts accepted this amounted to strict liability in all circumstances of technical fault, with the exception of those specific circumstances previously mentioned.

The Respondent, as of 12/11/2013, has filed an appeal with the Court of Appeal on the basis that HHJ Platts was wrong in law in respect of the test to be applied as set down in the Wallentin decision.

As the principle dispute between the parties revolves around whether or not the relevant technical fault amounts to extraordinary circumstances, any binding Court of Appeal decision on the test will be of benefit to the court in deciding this matter.

It is on this basis that the Defendant asks that the court use is discretion to stay the matter until such time that the Court of Appeal judgement has been handed down.

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.

I responded to this request stating that the points I wish to raise fall within the Wallentin scenario irrespective of the outcome of Huzar and that I feel that I have sufficient prospects to argue that the appeal of Huzar would have no effect in this case.

As for the information, I didn't request it in my allocations questionnaire. Does that now mean I cant ask for it?

CobyBenson

If you attended Court to oppose the stay I think a) the Judge will agree with Thomson and stay the case and b) you will not be entitled to recover any expenses for attending court.

If I were in your shoes I'd agree to the stay.

StaffsSW

Update on our situation.

We too have received the letter from Neil Sexton at After Travel Support, and again spieling out the Extraordinary Circumstances line, due to a result of a third party check in system.

I'm drafting my reply now, and will update further when I hear back from them.

David_e

StaffsSW wrote: »

I'm drafting my reply now, and will update further when I hear back from them.

It's highly unlikely that you will get any meaningful response so, if you weren't going to anyway, make sure you include the relevant wording re legal action so that your letter counts as a NBA.

Callmac

We were also on TOM195 to Manchester I filled in the template letter and received a reply with £200 for my wife and myself. This was promptly returned and another letter explanning why we werent allowed compensation as it was a third party and falls into EC I'm writing back quoting the list of circumstances which are NOT extraordinary, making reference to point number 34 ABSENCE OF FLIGHT DOCUMENTATION - Where the failure to prepare and submit the documentation necessary to operate the flight was due to factors within the air carriers control. Also pointing out they should have a contingency in place for equipment failures, like other companies have. What is NBA as metinoed in previous forums

111KAB

Callmac wrote: »

What is NBA as metinoed in previous forums

N otice B efore A ction

XxLKxX

xxLKxx wrote: »

Hi,

Could someone please help with my claim. Our flight TOM4201 from Crete to Gatwick was delayed by 4 and a half hours in total. The pilot called in sick the evening before our flight was due to reach our departure airport. A replacement pilot had to be flown done from Manchester. Once the pilot had arrived we were then told that there was no fuel for the plane. This meant the plane that was due to fly us back to Gatwick was delayed on its way to us.

I have written to Thomson using the template provided by MSE. Today I received a reply stating:

"As part of our investigation I have checked our flight reports and can see your flight was delayed due to the sudden sickness of the flight captain prior to a previous scheduled flight. Another flight captain was sourced from an alternative airport. This then caused a knock on effect to your flight. Therefore the cause of this delays sits under extraordinary circumstances, as the sickness of a crew member and is not something that could have been foreseen"

There has been no mention of the lack of fuel and surely if the airline were aware the night before that the pilot was unavailable this could have been avoided?

Your advice would be greatly appreciated!

I posted this back in October, after ringing the advisor who had replied three times being told they were unavailable or someone would get back to me. Today I finally got through and explained the "extraordinary circumstances" as outlined would mean that the pilot would become sick/die during the flight therefore this did not fall into this category. I also mentioned the lack of fuel, the advisor replied that the flight had been amended to a "compensation flight" and the cheque would be in the post!

I will wait until it is in my hand to believe it!

chezza2524

Hi

Has anyone or does anyone know if the information from the flightstats website is admissible in court?

Thanx