Flight delay and cancellation compensation, Tui/Thomson ONLY

JPears

razorsedge wrote: »

Heading off to court now.

Received a bundle adendum last night from Thomson's (less than 18 hrs before the hearing). Funny how they think they can get away with that.

I'll let you all know how I got on at some point over this weekend.

All the best of luck.

111KAB

Yes best wishes razorsedge.

razorsedge

Very small indeed.

I am a bit short of time today but will post more details later (I promise).

First of all, it's time to finally put in some background info about myself for the rest of you.

I have been lurking on this forum since late January, but you will notice that I have placed very few posts until quite recently.

I am claiming for delay to flight TOM188 Manchester to Male MAN-MLE on 26/05/2010.

The flight left Manchester nearly four hours late and was almost 3.5 hrs late arriving in Male. No explanation for the delay was given at the time.

I wrote to Thomsons in February this year claiming EUR300 per passenger (myself and my girlfriend).

I got the usual knockbacks: 'Supreme Court Ruling' '2 year limit' 'advice from Eminent QC' etc. After a little bit of letter ping-pong, I started a claim via the N1 route in August. Some would say I should have written fewer times after my initial NBA letter, but I am a reasonable man though perhaps too much of one for the likes of airlines.

The Defence from Thomsons in September was predictable to start with (many others had already posted details of similar defences by then), Montreal Convention, out of time etc. The alternative defence was due to a birdstrike causing engine damage.

The flight we took did not hit any birds so any birdstrike would have happened on a previous flight.

The next bit leading upto today's hearing I will post about later.

Fast forward to this morning.

We arrived at the Court this morning, Thomson's barrister arrived shortly after. Once we were introduced, he explained that he had only been handed the case last night and apologised and was slightly embarrassed for not having a skeleton argument to hand to me. He was also taken aback with the size of bundles (Thomson's has 283 pages, ours has 172). He also asked if I had received the bundle addendum from Thomsons (which I did last night just after 5pm - I'll talk more about that in later post).

He then went on to explain to me about the Dawson appeal and the Huzar appeal and that Thomson's would be asking for a stay based on the Dawson case (more to come about Thomson's request for a stay by letter). He also mentioned about the Court hirearchy too (appeal courts setting precedents for county courts etc.)

None of this was unexpected (I do strive to be a studious undergraduate of these forums). To be fair to the Thomson Barrister, he did explain things in a pretty clear way that somebody with a little less knowlegde than me could have understood. He also offered to give advice on procedual issues if we needed to know anything. I did feel though, that I had to point out to him that Huzar is not yet an 'appeal' and that the European Court takes precedence over all UK courts. He agreed with me on both points.

At the hearing itself, Thomson's began by asking for a stay based on Dawson.

The District Judge said he had a letter from Thomson asking for a stay (dated 12/11/2013 - one month prior to the hearing) but based on the Huzar case. In fact the letter did not mention the name of either party in that case but merely eluded to it by mentioning the appeal date, Manchester County Court and HHJ Platts.

The District Judge then spoke for several minutes about the background to the 'glut' of claims for air passenger delays and the reasons why a stay might be granted which he summed up as in general to clarify certain issues and achieve consistancy with rulings. He mentioned the Dawson appeal and Huzar (our DJ mentioned that he knew His Honour Judge Platts). Thomson's Barrister clarified they were seeking a stay based on Dawson.

The DJ was also explaining things in a an easy to digest manner. I got the impression that he was up to speed on delay claims and that he had managed to get at least a brief look through the bundles. Not a bad thing, I thought to myself, but I know what's coming next!

Indeed, the DJ granted a stay, but based on both Dawson and Huzar. Dawson I had expected. I thought Huzar had been shoe-horned in a bit though, as neither Thomsons or us had used it in bundles and a birdstike event in itself is not a techinal issue IMHO.

The DJ then wondered about how to word the order with respect to how long before somebody should come back with a request to continue. He knew Dawson was due in mid May next year but wasn't sure about the Huzar permission to appeal date.

I then produced a piece of paper from one of the many files I had taken with me (you never know, the case may have been tried there and then) and gave him the window dates for 8th-29th January.

He remarked "You've been making notes", I replied "Yes Sir, lots of notes."
Small Victory 1: I had assisted the DJ in a small matter.

Next the DJ turned to the letter from Thomson requesting a stay and noted that there had been sufficient time for Thomsons to apply formally for a stay and that would have saved everybody the inconvenience of turning up today. Thomson's Barrister was a bit flumuxed about this, I presume because he knew nothing about our claim until it was handed to him last night.
Small Victory 2: The District Judge just briefly put Thomsons into the naughty corner for not following procedure.

As a result of SV2 the DJ said he would be ordering that our costs be paid for turning up today. Thomson's Barrister mentioned that all this could be covered under CPR 27 at the final hearing, I mentioned we would like an attendance allowance (upto £90 each is available for loss of earnings). In the end the DJ said he would order Thomson to pay our travel costs for today but defer the issue of attendance fees until next time.
Small Victory 3: Thomson's owe us £2.90 each (woo hoo).

Summary: Claim stayed until whenever but, I am not in a rush.

I have a lot of people to thank on this forum, I'll mention as many as I can remember in my next post.
For now I have to thank Vauban - you helped me assemble my bundle argument far more than you imagined, through your various posts over the past few months. I would like to nominate The Lord Professor Vauban for a promotion, to Viscount.
Many many thanks also to Centipede100 - he needs many legs... because he keeps on putting The Boot in to the airlines!!

JPears

Three cheers for the SV!

111KAB

JPears wrote: »

Three cheers for the SV!

Agreed - I doubt Thomson will have the sense to pay the small amount so you should be able to point to their misdemeanour in your next hearing.

NickyPower

I have received the following defence from Thomson and would appreciate any advice. Many thanks in advance



1) It is strictly denied that Defendent ("the Airline") is liable for compensation under what is assumed to be Denied Boarding Regulations 2004 (EC 261/2004) (the "Regulation")

2) It is admitted and averred that the Airline Operated Flight ***** on **** 2013 from Ibiza, Spain to London Gatwick.

3) It will be said by the defendant that the aircraft intended to operate the Claimant's flight was subject to an unforeseeable technical fault on the previous flight rotation prior to the Claimants flight namely a nose wheel tyre deflation requiring a replacement part to be sourced, transported and fitted.

4) The delay in replacing the part led to a decision to source a replacement aircraft to perform the outbound flight and the Claimants inbound flight.

5) This resulted in a delay to the departure of the claimants flight.

6) It is averred that the matters pleaded in paragraph 11 (THERE IS NO PARAGRAPH 11??) above were caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken and that, pursuant to Article 5(3) of the Denied Boarding Regulations no compensation is payable in the circumstances. The Defendant relies on the following:-

a) At all material times, the Defendant operated a reasonable systems of checks and maintenance to the aircraft concerned.

b) The defect was found prior to the departure of the aircraft in question.

c) The defect was a result of extraordinary circumstances outside of the airlines actual control.

d) The Defendant will rely on Nelson and TUI (Cases C-581/10 and C-629/10), in particular Paragraph 39.

7) For the reasons set out above the claim for compensation of 250 Euros per person pursuant to the Denied Boarding Regulation is denied.

8) The Claimant is put to strict proof as to their loss.

9) As to the contingent claim for interest, it is denied that 8% is an appropriate interest rate.


Any advice as to what I should be putting in my bundle??

David_e

NickyPower wrote: »

Any advice as to what I should be putting in my bundle??

Just make sure you include the relevant law (ie Reg 261/2004 and cases) and focus on that - highlight the key passages. Don't get dragged into discussions about how often this issue has occurred in the past or how well maintained their aircraft are. That's not the legal test.

If you look at the letter of the law and extract the relevant quotes, you should be on a very firm footing. I wrote this which is how I see the basic issue:

http://forums.moneysavingexpert.com/showpost.php?p=63704354&postcount=4238

Good luck!

Their point 8 is nonsense. You aren't claiming compensation for losses; it's a statutory amount.

razorsedge

I would like to introduce a couple more acronyms for the forum.

CAP – Cut And Paste. As in how Thomsons write their witness statements for Court bundles.

[FONT=&quot]CAPE – Cut and Paste Error. See definition above.[/FONT]

razorsedge

JPears wrote: »

Three cheers for the SV!

Now, lets not get too carried away with my SV’s last Friday. Any person carrying out a reasonable unbiased analysis of what happened in front of the DJ will no doubt come to the conclusion that Thomsons got what they wanted. Thomson’s Barrister (T’s turned up hoping to get a stay based on the Dawson appeal, got that, and then, had the added bonus of the Huzar appeal thrown in for good measure. I would say that certainly out trumps my three SV’s.

But, it’s not quite all bad news.

Due to a mix-up or misunderstanding T’s B thought we were not in the Court waiting room when he first arrived. He had a chat with another barrister in a side room near where we were sat. The door was open and I didn’t quite hear it all but got the jist about Thomson wanting a stay based on the Dawson appeal. I did note that T’s B had come alone though, with no witnesses. When we did finally chat together (as posted above, he was polite and informative), I thought I would ask about witnesses just in case. T’s B said they would not be turning up. If he had left it at that, I would have thought ‘well, of course not, Thomson are not expecting a full hearing today just a stay, why send three blokes up from Luton just on the very slim chance that a stay is not granted’. (I think it fair to say that over the past few weeks, this forum has been littered with posts about claims being stayed when asked for by airlines, so that was probably a reasonable assumption to make on their part). Anyway, T’s B then added, with any prompting from me, that the people named on witness statements in my bundle write all the statements for Thomson and, never turn up for hearings. Any witness statements submitted by Thomson will be judged on the written text alone and not backed up with live oral evidence. Obviously, I thought, that would seem to be a commercial decision, but it might work in a Claimant’s favour:

Firstly, remember, these witnesses that Thomson use are at their office in Luton. I would say that they are almost certainly not eyewitnesses to whatever the problem was that caused your delay/cancellation.


Secondly, it was glaringly obvious to me that the senior people at Thomson who are signing the statements had not written them with their own hand. That would be the job of the CAP department. I also think that the ‘witnesses’ probably had not read ‘their’ statements properly either. I say this because there were so many CAPE’s in them (enough to protect an army from a very heavy rain shower at least) that any person reading through would wonder about the sense of things. I am not talking about factual errors here (more to come about them in another post) but simple spelling, grammar and common sense problems such as repetition of part sentences etc. I am guessing that the witnesses must be so busy signing statements that they don’t have time to actually read what they are ‘believing to be true’. The poor old CAP department must be overworked too, as they do not seem to be checking what they have produced in the first place either.

Finally, whilst the old adage ‘it depends on a particular Judge on a particular day’ applies, Judges can use their discretion to lend less weight to a statement when a witness is not available for questioning. If you can help the credibility of a witness statement by pointing out to the DJ all the errors in it (factual and grammatical), then why not? I also think having a list of questions that obviously cannot be answered (without the witness present, or even better, cannot be answered regardless) will surely show how credible a witness statement is, won’t it? (I have around 70 questions on just three short statements from Thomson).

I would say that the second point above about grammatical errors etc. also applies to Defence statements. Maybe that’s why the CAP department make so many CAPE’s, they really are very busy people.

So, if you think that having a few witness statements from Thomsons means that at least they have to go to the inconvenience (and expense) of transporting the witnesses to your hearing, unfortunately, you will be denied that SV.




I promised to thank a few people last Friday. In no particular order, the following posters have all helped me along the way by providing sample documents, useful information in large amounts or general encouragement, both in their posts and by PM:
111KAB, P.Doff, Legal magpie, Caz3121, Chezza2524, Blondmark, Mark2Spark, Coby Benson, JPears, Justnan, dxc_chappie and as previously mentioned Centipede100 & Vauban.
Thanks too to the many other contributors, too numerous to mention, that have helped in some other small ways.

JPears

Sorry sarcasm is the lowest form of wit...