Flight delay and cancellation compensation, Tui/Thomson ONLY

richardw

Cherrycherry wrote: »

... I was relying on Wallentin case and that if they even prove that circumstances were extraordinary, they haven't taken all reasonable measures to prevent the delay…..

Exactly. What about the reasonable measures!

Well done for pursuing your case and hope it gives them a bit of an incentive to put reasonable measures in place to prevent delays for their future passengers.

phritchie

Cherrycherry wrote: »

The flight was delayed by over 4 hours due to engine bleeding, which has been discovered the day before, this was fixed however caused a reactionary delay to our flight.
....
Now cut the long story short, I was relying on Wallentin case and that if they even prove that circumstances were extraordinary, they haven't taken all reasonable measures to prevent the delay.

Well done on your win. I've got my court hearing in a month, and Thomson have given a similar defence: reactionary delay due to a technical problems (+2 year limit).

I'd be interested if you could explain more about what was said on the reactionary delas and how you proved they haven't taken all reasonable measures to prevent the delay? Did Thomson have any evidence to demonstrate they tried to mitigate your delay? What did the judge think to this? What was the overall attitude towards knock-on delays?



In my case our delay was a reactionary delay due to a technical problem on another aircraft - not very extraordinary and certainly within the airline's control, they chose to re-route our intended aircraft knowing that it would delay us.

DJG1978

Hi I need some help!

Does anyone have the flight details of a Thomson flight from Larnaca to Cardiff in May 2011 which was delayed overnight. I'm struggling to find the flight number etc to inform my claim for compensation. Any help gratefully received. Thanks in hope!

Cherrycherry

legal_magpie wrote: »

For there to be an appeal Thomson's have to get permission either from the DJ who tried your case or from the circuit judge. They have to show grounds "Sir, I think you got it wrong" isn't enough.
It sounds as if he didn't formally ask for permission from the DJ, so all you can do is watch the post. My gut feeling is that they won't appeal as your case seems very fact based.

Your experience of Thomson's sloppiness is fairly typical. In my own case they hadn't sent our bundle of documents to their barrister. I'm almost tempted to suggest to them that they'd do better by instructing private solicitors

I do think this was the case - 'Sir, you got it wrong' and we want to appeal.
Frankly I thought it was only me who was losing train of his thoughts when he was arguing on behalf of defendant (over an hour), but I've noticed that the judge was feeling the same couple of times
In my case the judge ruled that they can't rely on unexpected flight safety shortcomings if the technical issue occurred 24 hours before the flight concerned. They were arguing that the technical defect became apparent immediately prior the departure (the day before), however not our flight.

Caz3121

DJG1978 wrote: »

Hi I need some help!

Does anyone have the flight details of a Thomson flight from Larnaca to Cardiff in May 2011 which was delayed overnight. I'm struggling to find the flight number etc to inform my claim for compensation. Any help gratefully received. Thanks in hope!

have a read of the FAQs on the first page of this thread and you will see info on Flightstats, if you register and log in you will be able to search by route and date

DJG1978

Thanks for your help, for anyone else who is interested the flight was delayed for 18 hours. A right pain with 2 and a half year old! The flight number was TOM 6313. Fingers crossed my claim will be accepted!

razorsedge

Vauban wrote: »

Well done Cherrycherry! Great result - and I wouldn't be surprised if the appeal was refused, given the doubts the judge had about their witnesses. Such "findings of fact" can't be appealed - only points of law (as far as I understand it).

For what it's worth, I think your strategy is bang on: find the errors and inconsistencies in the other side's account, whilst sticking to the framework and legal tests that the Regulation and subsequent case law have created.

Good job!

I agree entirely with Vauban about the strategy to be taken and in the case of Thomson Airways when it comes to the 'find the errors and inconsistencies in the other side's account' it's like shelling peas! (Make sure you have a good supply of highlighters)

razorsedge

Update to my previous posts on the Thomson thread at #3992 & #3998

razorsedge wrote: »

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).

The way I understood things on the day, we would get our travel paid for attending the hearing but that attendance allowance would hinge on winning the case, however....

I have today received the Court Order for the granting of a stay pending
'outcome of the pending appeals to the Court of Appeal in the cases of Hayer -v- Jet2 and Dawson -v- Thompson Airways.' [sic]
(I'm not going to apply my error highlighter in this instance but there are two spelling mistakes in that quote from the order).

The bonus from my point of view is that along with ordering Thomson to pay our travel expenses (£5.80 total), the DJ has also ordered that
'The Defendant shall also pay the Claimants witness expenses which shall be assessed at the next hearing'.
So we are going to get something else besides our travel costs regardless.

Small Victory 4.

razorsedge

flower202 wrote: »

Got court pack from Thomson (all 273 pages also posted after court requirement date) made me panic a little at first but after reading a few previous threads am more comfortable now... but can not understand why they have included the following cases in their pack....

1)Sidhu and others v British Airways plc:Abnet(known as Sykes) v British Airways plc.

2)Christopher Stott v Thomas Cook
Tony Hook v British airways
Both in the court of appeal

3) Axel Walz v Clickir SA

4) Her Majestys Revenue and Custome v Aimia Coalition Loyalty uk Ltd

1 appears to be linked into flight where passengers were taken as prisoners in Kuwait
2 dispute about seats in relation to two disabled individuals
3 Baggage dispute
4 ???

My case is EC along with over 2 years even though Thomson have admitted that I contacted them shortly after the delay but neglected to quote the EC regulation.

Can anyone help me as to why they have included the above in my case.... should I be reading then in full or are they trying to just baffle me....

Any help greatly appreciated

dxc_chappie wrote: »

Thomson sent me slightly more than you (279 pages) and also included 1), 2) and 4). Walz v Clickair was missing (despite being used in their skeleton argument) and I also had IATA v Dept of Transport and Kay v London Borough Council !!!

Sidhu is their main argument to support their claim 2 yr limitation in Montreal Convention applies. Essentially they are arguing that since the Sidhu appeal was decided in the Supreme Court (House of Lords) it effectively became English law, and as the ECJ ruling in the More case states the rules of member states must be used for determining time limitations the Sidhu "law" must be used. I think Mark2Spark provided a good write up on this in the Thomson 2 year thread.

Stott v TC is used to try to support their argument that community members are bound by the Montreal Convention (i.e. that More ruling can be ignored).

Walz v Clickair is used to support their argument that loss of time from flight delay is damage and is therefore subject to the Montreal Convention.

I've no idea why HM Revenue and Customs v Amia Coalition Loyalty UK Ltd was included - to me this looks like 53 pages of irrelevant material. I can only guess this was included to support any argument that English law does not have to follow EU leglislation.

As previously stated this is all copy and paste bumpf intended to put you off. The 2 year limitation will in any case be decided by the Dawson appeal in May so expect Thomson to request for a stay if they haven't already.

Good luck with your claim.

I received a similar set in my bundle from Thomson.

(Apologies for the delay in replying BTW, but there were some extraordinary circumstances affecting me over Christmas that stopped me fullfilling my obligations to this forum. You will not be getting any compensation from me!)

Besides 1) 2) 3) & 4) mentioned above by flower202 I also received the IATA & ELFAA -v- Dept of Transport judgement.

If you are facing a Montreal Convention 2 year rule defence then I think these cases are about the normal to expect from Thomson. I also think it is highly likely that at any hearing (for the foreseable future) Thomson will ask for (and get) a stay based on the Dawson appeal. If a stay is not granted for whatever reason then you will need to be ready to rebutt these cases.

Thanks to having a bit of spare time before my hearing in December
https://forums.moneysavingexpert.com/discussion/comment/64109506#Comment_64109506
I was able to look over some of these cases.
I broadly agree with dxc_chappie above but would like to add a few things.

First of all, it must be pointed out that none of the above cases have anything to do with a claim for statutory compensation under EU261/2004.


Sidhu -v- BA
There has been quite a bit of discussion about this case on these forums. Mark2spark's analysis back in March 2013
https://forums.moneysavingexpert.com/discussion/comment/59882763#Comment_59882763
There has also been this more recent development by holmbush for rebutting Sidhu/MC 2 year rule:
https://forums.moneysavingexpert.com/discussion/comment/64051745#Comment_64051745
https://forums.moneysavingexpert.com/discussion/comment/64058757#Comment_64058757
https://forums.moneysavingexpert.com/discussion/comment/64060980#Comment_64060980


Stott -v- Thomas Cook
If you have this case included by Thomson then it is likely to be the Court of Appeal judgement you have been sent. It refers to a case of discrimination against disabled passengers. Originally the trial Judge ruled they had been discriminated against under EC Disiability Regs but had no claim under the MC. This was appealed and the original decision upheld.
There is some opinion on the case here:
http://www.solicitorsjournal.com/news/employment/discrimination/no-protection-discrimination-disabled-air-passengers-court-rules
"That's shocking!!" you may well exclaim, "Surely somebody responsible for looking after the rights of passengers should intervene in this case?"
Well, they did. But no, you Silly Billy, it was not the CAA!
http://www.hrreview.co.uk/hr-news/diversity-equality/commission-helps-disabled-air-passenger-take-thomas-cook-to-supreme-court-in-discrimination-case/40318
The Secretary of State for Transport also also intervened (maybe he should also get involved in some EU261/2004 cases given the reluctance of the CAA to do anything).
This case is not over yet. It has been appealed to the UKSC, so be sure to point this out at your hearing. The UKSC hearing was in November 2013 and is now awaiting judgement
http://www.supremecourt.gov.uk/current-cases/CCCaseDetails/case_2012_0109.html


Axel Waltz -v- Clickair
This was a claim for damages under Article 22 of the MC. If you check your defence document from Thomson it will likely only mention Articles 19 & 35 of the MC. So, not relevant to EU261/2004 or the MC articles relied on by Thomson.
There is some opinion on the case here:
http://www.translegal.com/european-union/don%E2%80%99t-check-in-until-you-check-this-out
dxc_chappie states above:
'Walz v Clickair is used to support their argument that loss of time from flight delay is damage and is therefore subject to the Montreal Convention.'
This can be countered that a loss of time is not damage by using Para 51 of the Nelson & Tui Judgement:
'... a loss of time is not damage arising as a result of a dely, but is an inconvenience, ...'
So, what we can learn from this case is that the limits set for damages in the MC include all types of damage, material or otherwise. Also, if you have valuable luggage, then declare it at check-in.


HMRC -v- Aimia
This is essentailly a VAT tribunal case that has been escalated upwards over the years. Aimia are the company that run the Nectar Points Scheme. If you have the same bundle as me then you probably have the judgement issued in March 2013. However, it was updated in June 2013 and despite being sent my Bundle in December 2013 Thomson's CAP* Dept have not yet caught up.
Some info on the case here:
http://ukscblog.com/case-comment-hmrc-v-aimia-coalition-loyalty-uk-ltd-formerly-known-as-loyalty-management-uk-ltd-2013-uksc-15/
http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2009_0154_PressSummary.pdf
I believe (and I am willing to be put right on this one by somebody with a bit more knowledge than I) this case has been included because the UKSC largely ignored a ruling by the CJEU, but, the ruling was ignored because the CJEU was not presented with the full facts of the case. See the first para under 'Reasons For The Judgement' here
http://alisongrahamwells.wordpress.com/2013/03/13/her-majestys-revenue-and-customs-v-aimia-coalition-loyalty-uk-limited-formerly-known-as-loyalty-management-uk-limited-respondent/
See also the end of the second para and start of the third here
http://m.grant-thornton.co.uk/Global/Publication_pdf/Case-Alert-Aimia-Coalition-Loyalty-UK-Ltd.pdf


IATA & ELFAA -v- Dept of Transport
Essentially this case is some airline representative bodies attempting to have various parts of EU261/2004 ruled as invalid. They failed.
I believe (and I am again willing to be put right on this one by somebody with a bit more knowledge than I) that the first part of the judgement deals with whether a National Court should or should not refer a question to the ECJ when a EU Act is challanged as being invalid in the National Court. The second part deals with the validity of Articles 5, 6 & 7 of EU261/2004. (They are valid BTW).


Hopefully I have interpreted things correctly, not trod on anybody's toes and not revealed anything secretly explosive for the Dawson appeal (I am sure Coby Benson or socrates1882 will politely let me know if I have).


*
https://forums.moneysavingexpert.com/discussion/comment/64086737#Comment_64086737

JPears

razorsedge wrote: »

I received a similar set in my bundle from Thomson.

(Apologies for the delay in replying BTW, but there were some extraordinary circumstances affecting me over Christmas that stopped me fullfilling my obligations to this forum. You will not be getting any compensation from me!)



*
https://forums.moneysavingexpert.com/discussion/comment/64086737#Comment_64086737

Ah, but did you take all reasonable measures upto intolerable sacrifice to reduce the delay?