Flight delay and cancellation compensation, Tui/Thomson ONLY

Sweetsue

Could I have some advice please, I claimed for a delayed flight, the pilot announced that there was a technical problem with a previous flight, the crew were over their hours and another crew were brought in on their day off. This was the response received, sorry about the length of the post but I'm confused as to what constitutes extraordinary circumstances.

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 form, we've looked in detail at the circumstances that surround your experience. So let's look at the specific cause of your delay.

As part of our investigation I have checked our flight reports and can see your flight was delayed due to a technical defect being detected prior to a previous scheduled flight. This then caused a knock on effect to your flight. The aircraft is unable to be legally dispatched with this defect. The decision was then made to use an alternative aircraft to reduce any further delay. Therefore the root cause of this delay sits under Extraordinary Circumstances, as the technical issue with the aircraft was not due to poor maintenance and is not something that could have been foreseen.


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 another aircraft due 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 part and parcel of the standard operating 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.

Vauban

I don't think you needed to post this in its entirety; it's been posted many times before. Have a look at the FAQs on page one, including the links about technical faults, and decide what you want to do. If you're still unsure perhaps approach a NWNF firm?

Mark2spark

I can't be doing with this anymore, it's just too repetitive now.

bigmama1

I gave my email in error and now I don't know how to delete it! As a female in her 70's I struggle sometimes to get to grips with all this!

Vauban

bigmama1 wrote: »

I gave my email in error and now I don't know how to delete it! As a female in her 70's I struggle sometimes to get to grips with all this!

I think you're okay: it seems to have gone!

rob_j1976

Hi All, I've deliberately been avoiding this thread, as the tails of woe at the hands of Thomsons truly make my blood boil.

However, I have engaged a solicitor to work through my own claim against Thomson, after Thomson refused it citing ECs. This was going to script, insofar as my solicitors first letter to Thomson was ignored, they turned down the offer of mediation, and we were waiting for a date to go before a Judge.

Fast forward to this morning, when I receive a note from my solicitor, which states, "the Court has granted a stay of proceedings pending the outcome and an appeal case, which is to be heard late May. This means that we cannot proceed with your claim until the Court of Appeal has made a decision in May." The case currently under appeal is Huzar vs. Jet2.com.

In my limited reading of this, the original claim was rejected by the courts because Jet2 were able to argue that a defect in the aircraft wiring lead to the flight being grounded was an EC.

The opinion seems to be that "although the Huzar decision is not binding on other courts, it is of potential significance because other county courts may be inclined to adopt its ruling, and if followed it is difficult to see how a carrier could ever invoke an article 5(3) defence successfully in the case of delay or cancellation caused by a technical problem – if an unexpected, unforeseen and unforeseeable technical problem is insufficient, what technical problem could be sufficient?"

David_e

rob_j1976 wrote: »

Fast forward to this morning, when I receive a note from my solicitor, which states, "the Court has granted a stay of proceedings pending the outcome and an appeal case, which is to be heard late May. This means that we cannot proceed with your claim until the Court of Appeal has made a decision in May." The case currently under appeal is Huzar vs. Jet2.com.

I'm quite surprised that your solicitor didn't forewarn you. Similar experiences have been reported on here for weeks.

legal_magpie

rob_j1976 wrote: »

The opinion seems to be that "although the Huzar decision is not binding on other courts, it is of potential significance because other county courts may be inclined to adopt its ruling, and if followed it is difficult to see how a carrier could ever invoke an article 5(3) defence successfully in the case of delay or cancellation caused by a technical problem – if an unexpected, unforeseen and unforeseeable technical problem is insufficient, what technical problem could be sufficient?"

You are correct. A decision of a County Court is not binding on other County Courts, be it at District Judge or Circuit Judge level. However, a decision, particularly that of a Circuit Judge is persuasive, especially if the Judge gave a full reasoned judgment based on the law as was the case with Huzar.

My own case was heard a few days after Huzar was published and the Judge in my case seized on it. I have little doubt that in the absence of an appeal most District Judges would have adopted the reasoning in Huzar. This might have led to appeals to other Circuit Judges who might or might not have followed Huzar.

Once the Court of Appeal has decided the case, its decision is binding on all lower Courts. The judgment will make interesting reading. My personal view, for what it is worth is that the CA will say that Huzar went too far
JJ

ian666

Following 2 letters to Thomson Airlines (second recorded) I have received a very long 3 page reply. It looks like a standard stock reply to me. I have pasted the relevant text below giving Thomson's excuse for not compensating:-

Maintenance of the Thomson fleet of aircraft is conducted to some of the highest standards in theworld. It's another area that we take extremely seriously as itaffects 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,there was an unexpected technical problem with another aircraft just prior to departure, which the pilot believed need further investigation. As the pilot is primarily responsiblefor making the decisionthat the aircraft can operate,he or she must be-satisfied theaircraft is safe to fly.

The pilot will not allow the aircraft to operate until they are assured that the matter in question had been investigated, and if needs be, repaired.

The technical problem in question 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 implementa satisfactory maintenance scheme or fail to implement that scheme appropriately. Therefore, the circumstances are notof a kind which would fall outside of the definitionof Extraordinary Circumstances.

Question is as I am sure most of you have much more knowledge than me, is it true? can Thomson's use this as a reason for Extraordinary Circumstances?

I may go down the NWNF route can anyone recommend a good firm to take up my case please

Ian

111KAB

ian666 wrote: »

Question is as I am sure most of you have much more knowledge than me, is it true? can Thomson's use this as a reason for Extraordinary Circumstances?
I may go down the NWNF route can anyone recommend a good firm to take up my case please

Answers


1) No
2) A lot of people seem happy with Bott & Co.