Flight delay and cancellation compensation, Tui/Thomson ONLY

gazzcrawford

Thank you for your recent correspondence regarding your flight delay.
Here at Thomson Airways, we are committed to on-time performance across our flying programme. It sounds trite, but doing everything we reasonably can to get our aircraft to their destinations, and you on holiday, safely and on time is really important to us.

In terms of on-time performance, for the past few years Thomson Airways has consistently been one of the best performing airlines in the UK and we work hard to maintain the title of most on-time charter airline.
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 correspondence, we've looked in detail at the circumstances that surround your experience. So let's look at the specific cause of your delay.


Under EU Regulations we are required to find the root cause of any flight delay in order to determine if compensation is due. With regards to your flight, ????, after reviewing our internal flight reports I can see that the delay to your flight was due to a technical fault on your aircraft. This fault required assessment and repair where necessary before the aircraft could depart. As the fault was not the result of poor maintenance and could not have been predicted the delay is therefore classed 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, EasyJet 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 EC not the delay that may have been its effect

In the Light of the foregoing the answer to question 1 in Case C-629/10 is that Articles 5 to 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed are entitled to compensation under that regulation where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not however, entitle passengers to compensation if the air carrier can prove that the long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier."

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 was due to a delay to "unexpected flight safety shortcoming" arising from the 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 particularly strict, and which are part and parcel of the standard operation 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 manufacturer's recommendations.

In the case of the issue that affected your aircraft, the technical problem was detected just prior to its departure and 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. Therefore, the circumstances are not of a kind which would fall outside of the definition of Extraordinary Circumstances.
At Thomson Airways we really value our ability to meet customer expectations. We already invest significantly in operational initiatives, engineering excellence and having a modern fleet; they all help to keep the frequency and duration of delays to an absolute minimum.

Observing the purpose and spirit of the Regulation and doing so while continuing to deliver real value to our customers is a challenge that can only be met by applying the rules robustly and not making payments where the delay is not our fault. Were we not to apply the rules in the way that we must, prices would need to rise for you and all other customers.

Thank you for taking the time to contact us. We sincerely hope, and are doing all we reasonably can to ensure, that your future flights with Thomson Airways arrive on-time.
Yours sincerely,

nicki_d987

Gazzcrawford that is a standard thomson initial response.

Read this forum in detail if you want to take this on yourself, otherwise, take David's advice above and appointment a No-win No-fee firm.

samshltn

Gazzcrawford, see the link posted to my complete case, earlier in this thread. There, you can see I received the exact same letter as you, and all the steps I took through to successfully getting my compensation.

MGOR

Not unsurprisingly my case has been stayed due to Huzar. The case has also been moved to Liverpool and linked with a claim from the same flight. I do not have details of the other party or whether they are represented or not so it could be I mess things up for them or vice versa perhaps?


Thomson keep insisting on also citing the Dawson case as a reason for the stay. I deliberately issued proceedings before the 2 years were up to avoid it becoming an issue.


A question for those better qualified than me. Should I challenge matters now on why they keep citing Dawson or let matters lie until later? My inclination is not to raise the issue now as Dawson is irrelevant to me and see how matters progress. Thoughts?

richardw

MGOR, perhaps remind them clearly of the relevant dates and direct them to the records that detail these dates that clearly show that you started proceedings within two years and a Dawson stay is not applicable.

Are you relying on Huzar or not in your case?

MGOR

Thanks for the thoughts

I'm not at the stage of preparing papers. If Huzar had not happened then I would be running with Walletin so arguably I could request matters proceed on basis that not using Huzar. It was actually the Court that 'stayed' the case on the basis of the appeal so I'm not sure I would have much success changing their mind. Clearly the judge wants to see the outcome of the appeal rather than as has happened elsewhere they ignore Huzar. If the airlines are successful then there is still Walletin and we are back to the position we were in pre Huzar so the gates are not closed just perhaps harder to push. Even if Huzar ruling is upheld then no doubt the airlines will still be difficult so in reality will anything change?

It seems to be worthwhile then bringing to the attention of the Court that Dawson is not a factor in my particular circumstances. The other party linked to my case may of course be in a different position

legal_magpie

This is typical of the sloppy way in which Thomson are handling these cases. They use bog standard copy and paste defences without checking whether they are relevant. There is no point in corresponding with them. Just make sure that you keep to the court's timetable.
JJ

richardw

legal_magpie wrote: »

This is typical of the sloppy way in which Thomson are handling these cases. ..

If they've been sloppy with unnecessarily applying for a stay when one is clearly not required, it's useful that the court knows this.

The more courts knowing about airlines' sloppiness the better IMHO.

legal_magpie

This is right but, unfortunately, it's not the way the Court system works. Judges only see files when there is a hearing or if an application of some sort is made. Routine correspondence is simply put on the file. So sending general letters to the Court won't achieve the purpose you want which is to make sure that the Judges are aware of the general sloppiness which I can assure you they are.

richardw

BTW, I did say "Courts" not "Judges".