Flight delay and cancellation compensation, Tui/Thomson ONLY

David_e

bigmama1 wrote: »

Thank you for any advice you can give 2 OAP's.

Can you put that into paragraphs so we can read properly?

Vauban

bigmama1 wrote: »

Thomson defence recently filed with court. They have quoted the dates wrong outbound and inbound! The usual 2 year rule, weather (snow), Spanish Air Traffic controllers industrial action and planes being stuck at different locations and a chartered airplane. Therefore Extraordinary circumstances. We were unaware that they had chartered a plane from Thomas Cook as Thomson planes were stuck everywhere! This made everything much clearer as after my husband and I had been waiting for hours with the information screens showing "Delayed" for our flight, we were informed that we were finally boarding. So off to the boarding lounge we went, gave our luggage over and sat waiting to board the plane which we could see from the window. After about an hour we heard an announcement asking all passengers on our flight to go to the arrivals area and collect their luggage! Eventually we were handed a printout stating that the plane had technical problems and to go home and return the next day. We weren't told that it was a chartered plane. Now Thomson are citing Extraordinary circumstances outside their control. I gather they mean it was due to the chartered flight? They also state it was a reactionary delay following adverse weather conditions across UK. This was 4th December 2010. I have read so much on this forum but I do not remember reading about a similar situation? Sorry this post is so long! We are determined to go to court but must admit we are beginning to panic now! Thank you for any advice you can give 2 OAP's.

Lots of folk ready to help you out, bigmama!

Do you want to post up the defence (this is their first disclosure to the court presumably, not their main bundle?). We'll then help you to demolish it! You've lots of time to build your case.

bigmama1

David_e wrote: »

Can you put that into paragraphs so we can read properly?

I have now made it easier to understand! Hope that's ok now? Lol.

bigmama1

Vauban wrote: »

Lots of folk ready to help you out, bigmama!

Do you want to post up the defence (this is their first disclosure to the court presumably, not their main bundle?). We'll then help you to demolish it! You've lots of time to build your case.

Thank you Vauban. I knew I could rely on you! I will do that later today. Yes you are right, it's their first disclosure.

bigmama1

1) It is strictly denied that the Defendant (the Airline) is liable for compensation under what is assumed to be the Denied Boarding Regulations 2004 (EC261/2004) (the Regulations).

2) It is admitted and averred that the Airline operated Flight TOM046 on the 4 December 2010 from London Gatwick, United Kingdom (LGW) to Sanford, Orlando (SFB) (the Outbound Flight) and Flight TOM047 on 18 December 2010 from Sanford, Orlando (SFB) to London Gatwick, United Kingdom (LGW) (the Inbound Flight).

3) The Claimants are required to prove that they travelled on the flight.

4) By reason of Article 3 of EC Regulation 2027 as amended, as a matter of English law the liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability.

5) The Montreal Convention deals with the liability of the carrier, including (by its Article 19), for damage occasioned by delay in the carriage by air of passengers and baggage.

6) As a matter of English Law, where it is applicable, the Montreal Convention sets out the conditions under which claims to establish liability, if disputed are to be made.

7) One such condition set out by the Montreal Convention is its Article 35, which provides that:

"(1) The right to damages shall be extinguished if an action is not
within a period of two years, reckoned from the date of arrival
at the destination, or from the date on which the aircraft
ought to have arrived or from the date on which the carriage
stopped.

(2) The method of calculating that period shall be determined by
the law of the court seised of the case."

8) In the premises: Any claim for 261 Delay Compensation is subject to the conditions set by the Montreal Convention, including that contained in its Article 35, in that it is a claim against a Community air carrier (the Defendant) in respect of the delay in the carriage by air of a passenger (Mr and Mrs xxxxxx). And

9) As a matter of English law any right to damages in respect of
261 Delay Compensation was therefore extinguished if no action was brought against the Defendant in respect of it within two years of the 18 December 2010. No such action was brought within that two year period (this action having been issued on 11 March 204. Accordingly, the current proceedings fail to disclose a reasonable cause of action and/or are an abuse of the Court's process.

In the alternative

10) In respect of the Outbound flight, TOM046 on 4 December 2010, it will be said by the Defendant that the delay to the Claimant's flight was two-fold. Firstly there was severe weather irruption (snow) across the UK which caused various airport closures across the UK since 1 December 2010. This led to many of the defendant's aircraft being stuck at various locations. Secondly, Spanish Air Traffic Controllers undertook unplanned industrial action on 3rd and 4th December 2010, compounding the defendant's ability to get their aircraft back.

11) The aforementioned circumstances resulted in the original flight having to be delayed for 24 hours.

12) In an effort to minimise the delay, the defendant arranged for Thomas Cook to take over the flight by way of a charter. Unfortunately the allocated Thomas Cook aircraft developed technical problems and Thomas Cook were unable to provide an alternative aircraft.

13) As a result of the above, the defendant cancelled the charter and proceeded with the flight as planned with a 24 hour delay. The defendant will admit that the flight landed with a delay of 23 hours and 38 minutes.

14) It is averred that the matters pleaded in paragraphs 11 to 13 above were caused by extraordinary circumstances beyond the control of the defendant. The defendant did have a contingency plan in place, but regrettably this plan failed due to technical difficulties with the chartered plane. As such, pursuant to Article 5(3) of the Denied Boarding Regulations, no compensation is payable in the circumstances. The defendant relies on the following:

(a) The adverse weather conditions across the UK for the previous
3 days resulted in airport closures across the UK, leading to
many of the defendant's aircraft being stranded at various
locations.

(b) The unplanned Spanish Air Traffic Controllers industrial action
on 3rd and 4th December 2010 caused further disruption to
the defendant's flying schedule.

(c) The airport closures were beyond the defendant's control.

(d) The industrial action was beyond the defendant's control.

(e) The defendant attempted to minimise the delay by chartering
the flight to another Tour Operator, but that aircraft developed
technical difficulties.

15) The delay was therefore due to extraordinary circumstances
outside the Airline's actual control.

16) In respect of the inbound flight, TOM047 on 18 December 2010, the defendant shall say that the flight was subject to a reactionary delay following adverse weather conditions across the UK at the time
for forcing several airports to close. The aircraft intended to operate the outbound LGW-SFB flight which would then bring the claimants back to the UK, had to divert to Manchester on it ferry flight from Glasgow due to London Gatwick being closed.

17) As a result, the flight was operated once the airport had re-opened and another aircraft had been sourced. This resulted in a delay of the outbound flight of 23 hours and 50 minutes, leading to a delay in the claimant's flight of 22 hours and 49 minutes.

18) The Defendant will say that the weather conditions affecting the flights in question were beyond the Defendant's control.

19) For the reasons set out above, the claim for compensation of 600 euros per passenger per flight pursuant to the Denied Boarding Regulations is denied.

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

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

The Defendant believes the facts stated in this Defence to be true. I am duly authorised by Thomson Airways to sign this statement.

razorsedge

bigmama1 wrote: »

16) In respect of the inbound flight, TOM047 on 18 December 2010, the defendant shall say that the flight was subject to a reactionary delay following adverse weather conditions across the UK at the time
for forcing several airports to close. The aircraft intended to operate the outbound LGW-SFB flight which would then bring the claimants back to the UK, had to divert to Manchester on it ferry flight from Glasgow due to London Gatwick being closed.

Not that it matters in legal terms as Centipede100 is quite correct about knock on effects of weather not counting but...
Worth noting (because attention to detail is important) that it wasn't even the LGW-SFB flight just before your return flight that was weather affected. It was actually the flight before that, i.e the Glasgow-Gatwick ferry flight.

razorsedge

bigmama1 wrote: »

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

Claims for severe delay under Regulation EC No 261/2004 are not claims for loss; they are statutory claims for compensation.

David_e

bigmama1 wrote: »

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

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

What Centipede 100 said!

I would add:

(20) There is no requirement to prove any loss under Reg 261/2004; it's a fixed amount of compensation.

(21) The Government think that 8% is an appropriate rate!

https://www.gov.uk/make-court-claim-for-money/work-out-interest

Whether you get that or any interest is, I believe, at the absolute disctretion of the court.

I'm not sure where the 8% actually is in legislation, etc. . I think it might be the rate prescribed for intra-business overdue debts - although the link from the above says 8% + base rate!

razorsedge

bigmama1 wrote: »

The Defendant believes the facts stated in this Defence to be true. I am duly authorised by Thomson Airways to sign this statement.

Double check that you have actually got a signed copy and that you have received a copy directly from Thomson.

If not, you might consider writing to the Court to apply for the entire Defence to be struck-out under:

Practice Direction 22 3.4 & CPR22.2 (2) - Failure to verify with a statement of truth (if unsigned). However, you may need to formally apply to the Court for a stike-out under CPR 22.2 (2) - see CPR 22.2 (3).

CPR15.6 - Not following Court procedures by not serving a copy of the defence on all other parties.

Vauban

You see bigmama - I told you people would help out!

As others have most ably shown, Thomson's defence is pants. You should be able, with a bit of help, to marmalade them in court! (I hope they're reading this, incidentally, and are smart enough to offer to settle.)

You've got a lot of time to wait now - you'll get an Allocation Questionnaire, and then eventually a hearing date. But this will be months away, realistically. I hope both Dawson and Huzar will have been upheld by then too!