Flight delay and cancellation compensation, Tui/Thomson ONLY

bigstevex

My 6 year limit is early July, should I wait for the Dawson, Huzzar case in May and then file the claim straight away as long as it's upheld? My understanding is that as long as you file the claim within the 6 years then it doesn't matter if the case is heard outside 6 years?

111KAB

bigstevex wrote: »

My 6 year limit is early July, should I wait for the Dawson, Huzzar case in May and then file the claim straight away as long as it's upheld? My understanding is that as long as you file the claim within the 6 years then it doesn't matter if the case is heard outside 6 years?

No I would file now but others may have a different opinion.

111KAB

Goagoer wrote: »

Am I being naïve to assume the defence I've now received from Thomson is the final one or should I be prepared for them add to their defence as they choose?

They can add right up to the day of the hearing.

Mark2spark

bigstevex wrote: »

My 6 year limit is early July, should I wait for the Dawson, Huzzar case in May and then file the claim straight away as long as it's upheld? My understanding is that as long as you file the claim within the 6 years then it doesn't matter if the case is heard outside 6 years?

You are correct but IMO file now. Once the appeals have been thrown out they will be inundated with claims, and then won't respond to your written claim before the 6 years are up.
If you feel that you can file (in person, at the court) during June then I suppose you could wait, just that it's cutting it fine IMO. It wouldn't be beyond the realms of possibility for the court to lose your claim or there be a miscrepancy meaning you have to file again, but then you might be out of time.

legal_magpie

I would issue now because the Court of Appeal may well reserve judgment to a later date.

Mark2spark

Good point Magpie.

Vauban

Centipede100 wrote: »

And even if the Huzar judgment is ruled to have been too prescriptive then one still has the Wallentin-Hermann and Sturgeon judgments on which to rely.

Yes: this is quite an important point from my learned, if chilopodic, friend.

My take on all this is that Huzar goes further than Wallentin, by using the argument that it is not a delay resulting from a broken plane is not caused by the technical failure but rather by the need to fix it before it can fly again: that is the circumstance facing the airline. And fixing technical problems is inherent in the business of running an airline in almost all circumstances. Thus technical problems cannot provide the defence of ECs.

Lawyers much clever than me will no doubt argue this out, though I am slightly uncomfortable with the argumentation, for reasons it's not necessary to get into.

But regardless Centipede's point is surely right: the Wallentin test, if properly applied, should give every protection necessary to the passenger. It says remember that

a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned

So you have to ask: what has caused the technical failure? A terrorist? That would be extraordinary! Wear and tear through normal usage? Er, desperately ordinary. And there is nothing in the Regulation or case law to say, remember, that if the plane is subject to (legally obligatory) maintenance, then any technical failure that happens is extraordinary, because it's not predicted or the part was "on condition". All of that is just airline legal poo.

All of which is to say that I think it is logically consistent - though I don't know if it is legally possible - for the rationale of the Huzar judgement to be rejected by the Court of Appeal but for tyzap still to win his case on the basis of the normal application of precedent case law (Wallentin).

It will be interesting to see the narrative of the judgement, as well as its bottom line verdict: it may prove to be quite important, particularly if it further defines with more specificity the Wallentin test around "inherence".

legal_magpie

As usual Vauban is right. The key decision is Wallentin. Huzar went (in my opinion) far further than Wallentin did in holding that virtually any technical defect cannot be extraordinary circumstances.

I was lucky in that my own case was heard only a few days after Huzar was decided and Thomson settled in full at the hearing but I still feel that the Court of Appeal may decide that Huzar went too far in extending Wallentin
JJ

Mark2spark

IMO that judgement (Huzar) didn't actually go any further, they just spelled out what it already says in Wallentin except you have to read between the lines to arrive at the conclusion.
Seeing as the airlines would argue that an old lady took too long to board which was extraordinary *someone* (thank you HH Platts) simply had to say the obvious.

honda90man

Having searched the site for this flight the only thing I find is the same flight but on the 18-01-2011 which was delayed six & a half hours.We had originally decided not to claim for this flight,but as we were very badly treated by Thomsons last year we changed our minds.Just to fill you in we booked a holiday, for 6 of us,and found out via Facebook that they had cancelled it without informing us.
Anyway I wrote,by recorded delivery,to Thomson Airlines asking for compensation for 261/2004 for a total of 1200 euros,2 X 600,on 5-9-2013.I didn't get a reply so,foolishly,contacted the CAA in November.They asked for a copy of my letter to Thomsons,which I sent them.Again nothing happened so eventually I wrote again to Thomsons in February and and have now received their usual reply stating the 2 years limit.Having spent several hours reading through the 230 odd posts on here I intend sending them an NBA,giving them 14 days to comply after which I will go to court.