Flight delay and cancellation compensation, Tui/Thomson ONLY

Justice13075

what was the date of your flight?

legal_magpie

TUI are right in that the right to compensation under the regulations is personal to each passenger and one passenger cannot bring claims in behalf of others even though he may have paid for the tickets.
This means that either everyone has to bring a separate claim (separate documents and a Court fee each time) or they can all sue as Claimants in the same action. Unfortunately this can't be done with MCOL which only allows a sole Claimant. The software running MCOL is antiquated and there are no plans to update it.
In this case it is possible to apply to the Court to add the others as additional Claimants. This benefits TUI as if each person made a separate claim and won, TUI would have to pay far more costs.
An alternative suggestion is to ask TUI whether,in consideration of NOT joining the other passengers into the action, they are prepared to give an undertaking to settle their claims if the existing claimant wins.
If they refuse (or more likely don't comment) they can hardly complain if the other passengers are joined or bring their own claims.
I hope this helps

piteso06

Justice13075 - 27 July.

convents

Hi there,

I’m new to the forum and am also in the process of an application with CEDR regarding TUI flight TOM792 which was delayed for 17 hours and 14 minutes on 7th August 2018 from Birmingham Airport to Alicante.

I believe user @Jline1’s post on the 30th October ( #9107 ) is a similar case as they appear to have been on the return flight.

TUI have replied to our application through CEDR to claim all reasonable measures were employed quoting

“All reasonable measures were employed. The Military aircraft emergency landing was performed just as TOM699 was due to land, thus having to quickly divert to LXR (Luxor). As Egyptian flights are long sectors, the crew legal flying duty periods expired. This then had a knock on effect to the remaining sectors. Also, as Egypt is an overseas airport, the airline does not have any spare crew or aircrafts to minimise the delay, and they would have had to travel from the UK and took minimum rest.”

They have used item 11 of the NEB Guidelines to say this is ‘Extraordinary Circumstances’.

Like @Jline1 , the CEDR case now has the opportunity for me to reply to the comments of TUI. They have also like @JLine1’s case, added incorrect information regarding length of delay time (out by 13 minutes if this makes any difference from originally supplied documentation by TUI, which that information also had incorrect original flight times given!).


Does anyone have any advice of how a reply on our behalf to the case could be given? Thanks in advance.

Justice13075

piteso06 wrote: »

Justice13075 - 27 July.

EuClaim say you don't have a claim because of extraordinary circumstances. Put your details into bottonline and see what they say

Tyzap

convents wrote: »

Hi there,

Does anyone have any advice of how a reply on our behalf to the case could be given? Thanks in advance.

Hi convents,

There are two parts to the extraordinary circumstances (EC) defence which the airline must meet in order to be released from it's obligation to pay compensation.

1. It must be outside of it's control, which it was.

2. It must ensure all reasonable measures had been taken to avoid the delays. Which I doubt it did.

During the 17-18hr delay there is probably more the airline could have done, such as use another aircraft and crew. This is what you could quote to CEDR...

Reasonable measures an air carrier can be expected to take in extraordinary circumstances
Whenever extraordinary circumstances arise an air carrier must, in order to be released from the obligation to pay compensation, show that it could not avoid them even if it had taken all reasonable measures to this effect.
Furthermore, the Court52 has found that under Article 5(3) of the Regulation, an air carrier can be required to organise its resources in good time so that it is possible to operate a programmed flight once the extraordinary circumstances have ceased, that is to say, during a certain period following the scheduled departure time. In particular, the air carrier should provide for a certain reserve time to allow it, if possible, to operate the flight in its entirety once the extraordinary circumstances have come to an end. Such reserve time is assessed on a case-by-case basis. However, Article 5(3) cannot be interpreted as requiring, as a ‘reasonable measure’, provision to be made, generally and without distinction, for a minimum reserve time applicable in the same way to all air carriers in all situations when extraordinary circumstances arise. In this regard available resources will generally be higher at the home base compared to outbound destinations thereby giving more possibilities to limit the impact of extraordinary circumstances. The assessment of the air carrier’s ability to operate the programmed flight in its entirety in the new conditions resulting from the occurrence of those circumstances must be carried out in such a way as to ensure that the length of the required reserve time does not result in the air carrier being led to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time.

Also, the NEB guidelines which they quote have been discredited in various court cases as 'none binding' 'much amended' Etc

In the case of Evans v Monarch Airlines at Luton County Court, Judge Melissa Clarke said....

(4) Despite Mr Davidson’s submission that I should have regard to the Civil Aviation Authority’s “List of Extraordinary Circumstances” dated 3 July 2014, which is in evidence in this case, I give no weight to it. It is not legally binding. It is clear from its long list of deletions and amendments, arising from changes forced upon it by decided cases, that the Civil Aviation Authority’s view on what should be considered to be extraordinary circumstances for the purposes of Article 5(3) has often been at odds with that of the courts. I cannot see that it helps me at all.

CEDR should find in your favour if you quote the above.

Good luck.

convents

Thank you Tyzap for your advice.


So I will quote the two responses you've provided here in the case and hopefully as you mention CEDR will find in our favour.


Looking at the documentation provided by TUI about the incident, it seems this occurred the day before around 6pm UK time in Egypt. As our flight was not due to take off until 6am the following day, is this also something that could be quoted regarding extra measures they could have taken?


E.g. The could have informed the passengers by the details they had on file that the flight was going to be delayed until 11pm the following day, therefore avoiding passengers turning up at the Airport from 4am on-wards to board a flight that wouldn't leave for another 17+ hours upon arrival at the Airport?

Tyzap

convents wrote: »

Thank you Tyzap for your advice.


So I will quote the two responses you've provided here in the case and hopefully as you mention CEDR will find in our favour.


Looking at the documentation provided by TUI about the incident, it seems this occurred the day before around 6pm UK time in Egypt. As our flight was not due to take off until 6am the following day, is this also something that could be quoted regarding extra measures they could have taken?


E.g. The could have informed the passengers by the details they had on file that the flight was going to be delayed until 11pm the following day, therefore avoiding passengers turning up at the Airport from 4am on-wards to board a flight that wouldn't leave for another 17+ hours upon arrival at the Airport?

I'm not familiar with the full background details of the cause of the delay. The longer they had known of the delay, the longer they had to put plan b in place and the more culpable they become.

Add as much detail as you have and also make the point that it was a knock on delay to your flight, which was not directly affected by the original problem.

Good luck.

Ken_Stanford

My TUI flight from Verona to Newcastle upon Tyne on 13 June 2018 arrived 3.25 hours late at Newcastle. The cause of the delay according to TUI was the sickness of a member of the crew compounded by the sickness of the replacement crew member later the same day.
I sought compensation under EC Regulation 261/2004 for the delayed flight
TUI have rejected my claim for compensation giving the following reason:

“Passenger or crew member becomes seriously ill or dies on-board at short notice before the
flight. An operating air carrier shall not be obliged to pay compensation in accordance with
Article 7, if it can prove that the delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
The circumstances surrounding the delay to your flight are classified as extraordinary circumstances
under Regulation 261/2004 of the European Union. Therefore we reject your claim for compensation under this regulation”.

Can anyone confirm that this regulation does indeed cover the sickness of flight crew members.

Tyzap

Ken_Stanford wrote: »

My TUI flight from Verona to Newcastle upon Tyne on 13 June 2018 arrived 3.25 hours late at Newcastle.

Can anyone confirm that this regulation does indeed cover the sickness of flight crew members.

Hi Ken,

Yes, it can under some circumstances. It really depends on the details leading to the delay, which the airline are very unlikely to give you unless they have to. Be aware that generalisations, fudging and even untruths are often to be expected.

If a member of the flight crew becomes seriously ill or even dies immediately before or during the flight it would be a valid excuse.

If a passenger or member of the cabin crew becomes seriously sick or dies during the flight it would be a valid excuse.

However, if the delay occurred on a previous day or on a previous flight you may be due compensation.

A good way to get a rough indication if you are due compensation is to put your flight details into the Bott & Co delay calculator here...

https://www.bottonline.co.uk/flight-delay-compensation/calculator

Good luck.