Flight delay and cancellation compensation, Tui/Thomson ONLY

mackers88

Thing is, I,ve had 6 years of fob-offs with T, so I,m tempted to go for the exchange rate at that time - £550, and IF I got interest @8% = £873
Don,t want to be greedy but settling now seems like T still win.

razorsedge

NoviceAngel wrote: »

If you use the forum search facility using strikes and the forum member razorsedge You'll find plenty of posts about this:-

https://forums.moneysavingexpert.com/discussion/comment/67565033#Comment_67565033

He knows quite a bit on the subject.

Cheers,

NoviceAngel

Thanks NoviceAngel but I cannot claim to be an expert on Bird Strikes (BS) because I have never been involved in one, have I Thomson?!!!

Scruffywuffy wrote: »

Just a thought. I've still not heard back from Thomsons regarding my delay in December 2014, my flight was delayed for 3 separate reasons (2 x technical faults, 1 x crew out of hours), Thomson wrote back saying it was delayed due to a bird strike, which explains the first delay but not the technical fault to the 2nd plane which was being flown down from Manchester, nor the crew out of hours. But back to the bird strike ...


I did a FOI request from the CAA re the bird strike, which although doesn't give flight numbers, our flight does seem to be on there. It says that the plane could have been damaged 3-4 days before our flight, but the damage was only noticed when the Captain did his final walk round before our flight took off, - which tallies as we were on the plane and then turfed off. My query is seeing as the regulation says:


" An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken."

Is it the case that Thomson should have noticed the damage well before our flight and therefore have not taken all reasonable measures?

I am looking into things before drafting a LBA unless I get a reply within the next week or so, detailing the other 2 delays but was wondering if I could include the above or is that clutching at straws ?


Also could you argue that they should expect bird strikes will occur ?


Thanks.

I have always believed that BS are not Extraordinary Circumstances (EC). There a some people on this forum who agree with me and some who do not. There is of course the opinion of Bott & Co that BS are EC and I have asked this before, 'What do they know?';)

In my own case I was planning to convince a Judge that BS are not EC and inherent in the operation of an airline. Unfortunately Thomson denied me that attempt by chickening out of the Court case altogether and they lost by default (without a hearing) because they did not respond to Court Orders when told to. (As it happens they are still playing that game and have not responded to the order telling them to pay me either).

There is plenty of info and stats on the CAA website here:
http://www.caa.co.uk/default.aspx?catid=2008&pageid=11326
although I notice that the CAA have still not provided any statistical updates for 2014.

So with my opportunity denied, have a look at the CAA info and decide if you can put together an argument for BS not being EC.

To address some of the other points in your post and your PM (part of which I have added here):

Scruffywuffy wrote: »

I wrote to Thomson who rejected my claim as from their delay handling logs the plane had suffered a bird strike on a previous rotation and that this was an extraordinary circumstance, quoting point 17 which says

"Bird-strikes to the aircraft during a flight which might cause damage which requires immediate compulsory checks and repair".

'Point 17' is from the now infamous and legally lacking NEB wishlist. There is plenty of opinion on this forum about the wishlist (none of it of the admiring type). Have a look at what HH Judge Platts thought about it in the original Huzar appeal.
http://www.bottonline.co.uk/wp-content/uploads/2013/10/179933236-Jet2-appeal.pdf

However, turning the situation around your flight did not suffer a BS so (as a DJ at Bradford Court told me more than once) repairing any damage after the event is a technical issue. (At the time I was not happy with that because he then granted a stay pending the Huzar appeals to the COA and SC). (Hmmmm. Huzar appeal, Bott & Co, perhaps they do know something?;))

No BS to your flight in the first place, you have a tech issue and Huzar and Wallentin apply.

Second plane going tech - Huzar and Wallentin apply.
Crewing - Inherent to airline operations - Wallentin applies.
Overall - The third limb of the Wallentin test appllies (intolerable sacrifice etc.)

I would say you have a valid claim. It would seem that you have played letter ping-pong enough. Get your LBA written (keep it simple, ask for your money or else, no point in trying to reason with them).

Do not worry about having to go to Court. There is a lot of good useful advice about the Court process on the forum and plenty of friendly people who can answer any odd queries you might have about that (but please do use the search facility and not ask a simple question that has already been answered) (especially if it is about vouchers!).

Edit: And to go back to the start do not forget that Thomson have to prove that there were EC's causing your delay. Ask them for proof of EC in your LBA, you won't get it because they will refuse to give you any, but it ticks the boxes on Pre-Action Protocol.

NoviceAngel

razorsedge wrote: »

Thanks NoviceAngel but I cannot claim to be an expert on Bird Strikes (BS) because I have never been involved in one, have I Thomson?!!!

Thanks for your detailed thoughts as ever razorsedge, but for once I didn't call you our bird strike expert (even though you are )

It really is a shame after all the research and effort you put into your case, that you were effectively robbed of your opertunity to fully test your case.

But you did win!! They just realised you were correct all along....


Cheers,

NoviceAngel

Scruffywuffy

Amazingly helpful post razorsedge - thank you so much. Lot's to think about but the fact that Thomsons have to prove there were EC's to my flight - is the fact that they've already said that the plane was hit by bird strike on a previous rotation, and that the FOIA act says the engineers say it could have been 3-4 days previous, enough (without the 2nd and 3rd delay which they still have not replied to me about) enough to kick EC into touch as the birdstrike did not apply to my flight but a previous one ?


ETA - you say ask for proof of EC in my LBA - they've already said that the EC is a bird strike, so just wondering what more they might be expected by a Judge to add?


Thx

JPears

Are birdstrikes reportable to CAA? If so then that pretty much nails it as far as them being inherent in the running of an airline doesn't it?

batman44

Bird strike are reportable to the CAA (FOI) can be requested but dont mention your specific flight!
In fact i understand they have a special website to report them!

The form they use

To be completed on discovering evidence that a birdstrike has occurred.

To be completed for all confirmed, unconfirmed, or 'near miss' birdstrike occurrences, in accordance with the guidance and information in Chapter 5 of CAP 772.

Guidance for web-based form submission

In order that we may properly consider your submission, the following guidance may be helpful in submitting this form:

Please fully complete your contact details so that we may contact you if necessary

Please complete a new form for each birdstrike occurrence

When you have finished, click "Submit Form" at the bottom of this page. If the form has not been completed correctly incomplete fields will be identified. Once the form has been completed correctly you will be presented with your completed form. You can then either "Change Form Details" or "Send Form". Once a form is sent, a page confirming submission will appear with a link to a printer friendly version of the form. This form will have a unique reference id which should be used in all correspondence with this birdstrike occurrence. In addition, if you have supplied a valid email address, an acknowledgement of receipt containing the printer friendly link will be sent.

Reporter DetailsName : *
Role : * Pilot / Aircrew Airport Operations Ground Personnel ATC Engineering / Maintenance Other Unknown
Employer :
Telephone No : *
EMail Address : *

Birdstrike DetailsBirdstrike Status : * ConfirmedUnconfirmedNear Miss
Aircraft Operator : * Unknown
Aircraft Registered : UKNon-UKUnknown
Aircraft Type & Series : * Unknown
Date (dd/mm/yyyy) : * *
Time (local) : * HH 00 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 MM 00 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 Unknown Time Period Dawn Day Dusk Night Unknown
Precipitation : * None Fog Rain Sleet/Snow Unknown
Location
(Aerodrome or En-route) : * ----. ----. En Route EGAA. BFS.. Belfast International (Aldergrove) EGAB. ENK.. Enniskillen EGAC. BHD.. Belfast City EGAD. EGAD. Newtownards EGAE. LDY.. Londonderry EGBB. BHX.. Birmingham EGBD. EGBD. Derby EGBE. CVT.. Coventry EGBF. EGBF. Bedford EGBG. EGBG. Leicester EGBJ. GLO.. Gloucestershire EGBK. EGBK. Northampton (Sywell) EGBM. EGBM. Tatenhill EGBN. EGBN. Nottingham City EGBO. EGBO. Wolverhampton EGBP. EGBP. Kemble EGBS. EGBS. Shobdon EGBT. EGBT. Turweston EGBV. EGBV. Silverstone EGBW. EGBW. Wellesbourne Mountford EGCB. EGCB. Barton (Manchester) EGCC. MAN.. Manchester EGCD. EGCD. Woodford EGCF. EGCF. Sandtoft EGCJ. EGCJ. Sherburn in Elmet EGCK. EGCK. Caernarfon EGCL. EGCL. Fenland EGCN. DSA.. Doncaster Sheffield EGCV. EGCV. Sleap EGCW. EGCW. Welshpool EGEC. CAL.. Campbeltown EGED. EOI.. Eday EGEF. FIE.. Fair Isle EGEL. COLL. Isle of Coll EGEN. EGEN. North Ronaldsay EGEO. OBN.. OBAN EGEP. PPW.. Papa Westray EGER. EGER. Stronsay EGES. NDY.. Sanday EGET. LWK.. Tingwall (Lerwick) EGEW. WRY.. Westray EGEY. CSA.. Isle of Colonsay EGFA. EGFA. Aberporth EGFE. HAW.. Haverfordwest EGFF. CWL.. Cardiff EGFH. SWS.. Swansea EGFP. EGFP. Pembury West Wales EGGD. BRS.. Bristol International EGGP. LPL.. Liverpool EGGW. LTN.. London Luton EGHA. EGHA. Compton Abbas EGHC. LEQ.. Lands end (St Just) EGHD. PLH.. Plymouth EGHE. ISC.. St Marys, Isles of Scilly EGHG. EGHG. Yeovil EGHH. BOH.. Bournemouth EGHI. SOU.. Southampton EGHJ. BBP.. Bembridge EGHL. QLA.. Lasham EGHO. EGHO. Thruxton EGHQ. NQY.. Newquay EGHR. CUG.. Chichester (Goodwood) EGHT. TSO.. Tresco EGHU. EGHU. Eaglescott EGHY. EGHY. Truro EGJA. ACI.. Alderney EGJB. GCI.. Guernsey EGJJ. JER.. Jersey EGKA. ESH.. Shoreham EGKB. BQH.. Biggin Hill EGKH. EGKH. Lashenden Headcorn EGKK. LGW.. London Gatwick EGKR. KRH.. Redhill EGLC. LCY.. London City EGLD. EGLD. Denham EGLF. FBA.. Farnborough EGLG. EGLG. Panshanger EGLJ. EGLJ. Chalgrove EGLK. BBS.. Blackbushe EGLL. LHR.. London Heathrow EGLM. EGLM. White Waltham EGLS. EGLS. Old Sarum EGLW. EGLW. London Heliport EGMC. SEN.. Southend EGMD. LYX.. Lydd EGMH. MSE.. Kent International EGMJ. EGMJ. Little Gransden EGML. ---.. Damyns Hall EGNA. EGNA. Hucknall EGNC. CAX.. Carlisle EGNE. EGNE. Retford (Gamston) EGNF. EGNF. Netherthorpe EGNH. BLK.. Blackpool EGNJ. HUY.. Humberside EGNL. BWF.. Walney EGNM. LBA.. Leeds Bradford EGNO. EGNO. Warton EGNP. EGNP. Leeds Heliport EGNR. CEG.. Hawarden EGNS. IOM.. Isle Of Man EGNT. NCL.. Newcastle EGNU. EGNU. Full Sutton EGNV. MME.. Durham Tees Valley EGNW. EGNW. Wickenby EGNX. EMA.. Nottingham East Midlands EGNY. EGNY. Beverley EGPA. KOI.. Kirkwall EGPB. LSI.. Sumburgh EGPC. WIC.. Wick EGPD. ABZ.. Aberdeen EGPE. INV.. Inverness EGPF. GLA.. Glasgow EGPG. EGPG. Cumbernauld EGPH. EDI.. Edinburgh EGPI. ILY.. Islay EGPJ. EGPJ. Fife EGPK. PIK.. Prestwick EGPL. BEB.. Benbecula EGPM. SCS.. Scatsa EGPN. DND.. Dundee EGPO. SYY.. Stornoway EGPR. BBR.. Barra EGPT. PSL.. Perth EGPU. TRE.. Tiree EGSC. CBG.. Cambridge EGSF. EGSF. Peterborough (Conington) EGSG. EGSG. Stapleford EGSH. NWI.. Norwich EGSJ. EGSJ. Seething EGSL. EGSL. Andrewsfield EGSM. EGSM. Beccles EGSN. EGSN. Bourn EGSP. EGSP. Sibson (Peterborough) EGSQ. EGSQ. Clacton on Sea EGSR. EGSR. Earls Colne EGSS. STN.. London Stansted EGSU. QFU.. Duxford EGSV. EGSV. Old Buckenham EGSY. SZD.. Sheffield City EGTB. EGTB. Wycombe EGTC. EGTC. Cranfield EGTE. EXT.. Exeter EGTF. FRK.. Fairoaks EGTG. FZO.. Bristol Filton EGTH. EGTH. Old Warden EGTK. OXF.. Oxford Kidlington EGTO. RCS.. Rochester EGTP. EGTP. Perranporth EGTR. ETR.. Elstree EGTU. EGTU. Dunkeswell EGYP.

---

Mount Pleasant Airfield LXGB. GIB.. Gibralter MBAC. -.... Ambergris Cay MBGT. GDT.. Grand Turk MBMC. MDS.. Middle Caicos MBNC. NCA.. North Caicos MBPI. PIC.. Pine Cay MBPV. PLS.. Providenciales MBSC. XSC.. South Caicos MBSY. SLX.. Salt Cay MILT. NIL.. UK MILITARY MWCB. CYB.. Cayman Brac MWCL. LYB.. Liitle Cayman MWCR. GCM.. Grand Cayman N/A-. N/A-. Offshore N/A.. N/A.. Unlicensed Aerodrome SFAL. PSY.. Stanley TQPF. AXA.. Wallblake Airport TRPG. MNI.. Montserrat TUPA. NDG.. Anegada TUPJ. EIS.. Beef Island TUPW. VIJ.. Virgin Gorda TXKF. BDA.. Bermuda International UNK.. UNK.. Unknown Unknown
Runway in use : * Unknown
Height (agl) : * Zone A – under 200ft on landing Zone A – under 500ft on takeoff Zone B – under 1500ft and not in Zone A Zone C – above 1500ft Unknown
Speed (IAS) : * Unknown
Phase of Flight : * Taxi Take-off run Climb En Route Descent Approach Go Around Landing Roll Ground Checks Unknown
Note 1: A copy of this Birdstrike Report will be automatically submitted to the CAA Safety Investigation & Data Department, under the auspices of the Occurrence Reporting Scheme (MOR), by virtue of selecting any of these categories;
Part(s) of Aircraft - Where Damaged is selected
Effect on Flight - Where "Returned", "Take-Off Aborted", "Diverted" or "Loss or malfunction of any essential service" selected
Once submitted, this report cannot be withdrawn.


Part(s) of AircraftRadome : Struck Damaged
Windshield : Struck Damaged
Nose (if not one of the above) : Struck Damaged
Engine Nos 1 : Struck Damaged
2 : Struck Damaged
3 : Struck Damaged
4 : Struck Damaged
Propeller : Struck Damaged
Wing/rotor (inc high lift devices) : Struck Damaged
Fuselage : Struck Damaged
Landing Gear : Struck Damaged
Tail : Struck Damaged
Lights : Struck Damaged
Other : Struck Damaged

Birdstrike DetailsEffect on Flight : * None Aborted t/off Returned Diverted Loss or malfunction of any essential service Other* (describe)
Other*
(describe max 200 chars) :
Other Reports raised : Mandatory Occurrence Report (MOR)
Air Safety Report (ASR)
Other* (specify)
* (specify max 100 chars) :
Species Type
(where possible, Identify species) : * BirdsOther WildlifeNo Remains Found

Number of birds seen : * Nil 1 2-10 11-100 100+ Unknown
Number of birds struck : * Nil 1 2-10 11-100 100+ (* enter actual number if known) Unknown
Note 2: The reporter should ensure, irrespective of this report having been filed, that details of this birdstrike occurrence are notified to the appropriate airline or aerodrome operator, as soon as practicable.


Remarks & Other Relevant Information (max 2000 chars) :

Scruffywuffy

JPears wrote: »

Are birdstrikes reportable to CAA? If so then that pretty much nails it as far as them being inherent in the running of an airline doesn't it?

Yes they are. I requested details of all bird strike in a FOIA request from the CAA for the day before my flight, the day of and the day after.

Their reply is in the form of a spreadsheet, no flight numbers are given, however the spreadsheet with less detail does give the airport and runway. I was able to identify my flight from this and the more detailed information given.

If anyone is interested, there were 11 reported bird strikes over 3 days in December 2014 !

mackers88

On the exchange rate debate which we touched on a while back, you said that the Reg is clear that payment should be made at the point of delay, and it would appear the FX rate should be applied at that time, and not the DJ Jenkinson at time of proceedings.
I cannot find the text in the Reg that specifies that payment should be immediate, although I know it,s there somewhere
Do you have a link to that particular section of text in the Reg ?


I ,ve found numerous mentions of this, but no original text.
Thanks if anyone can help

NoviceAngel

mackers88 wrote: »

On the exchange rate debate which we touched on a while back, you said that the Reg is clear that payment should be made at the point of delay, and it would appear the FX rate should be applied at that time, and not the DJ Jenkinson at time of proceedings.
I cannot find the text in the Reg that specifies that payment should be immediate, although I know it,s there somewhere
Do you have a link to that particular section of text in the Reg ?


I ,ve found numerous mentions of this, but no original text.
Thanks if anyone can help

No it's not in there, it's what is not said that is important..

EC261/04 wrote:

3. The compensation referred to in paragraph 1 shall be
paid in cash, by electronic bank transfer, bank orders or bank
cheques or, with the signed agreement of the passenger, in
travel vouchers and/or other services.

It doesn't say that payment is due weeks, months ahead so it would be a reasonable assumption to mean that payment due under the regs should be immediate.

It has been long understood that payment is due at the time of the delay. DJ Jenkinson has decided to use the date of commencement of legal proceedings as the date the conversion from EUR to GBP should be made.I'm not sure on the Judges reasoning behind this, but this can be helpful to those that have had long running cases, stayed pending Huzar.

Cheers,

NoviceAngel

NoviceAngel

mackers88 wrote: »

Cheers again
No hearing as yet - just at the stage where T have not put in defence, but have mailed the court as I said. They have said they will be sending me a cheque for £436 (600eu) + £70 costs thus far. They are disputing (in their email to court) any interest which I am asking the court to decide ( County court Act - compensation not damages = no interest )


So don,t know if much to go for with next step Request for Judgement

I've said it before and I'll say it again.

IMHO, I think if your ONLY going to Court on the basis of 'interest' then I would be extremely careful.

It could go against a claimant if the Judge felt that you were being over zealous with your claim. There are plenty of cases where no interest has been awarded and a few at 8% but usually when the airline have really peed the Judge off.

Because of the S69 act relating to 'damages' and 'debt' quite a few cases I hear are being refused any interest at all.

Cheers,

NoviceAngel