Flight delay and cancellation compensation, Tui/Thomson ONLY

FingersLily

Thanks again eskbanker.

The details of the return flight:
- Delay of 3 hours 6 minutes,
- TUI say delay was due to preceding flight: 1 hour 31 minutes because of baggage handling & boarding issues,
- Change of flight plan due to weather made preceding flight later,
- TUI claim that our flight also had to be rerouted because of weather otherwise we would’ve been below 3 hours delayed.

I argued that BA flew the exact same route as the preceding flight 16 minutes prior to TUI & didn’t have to reroute. Similarly, BA flew the same route back as TUI and, once again, didn’t reroute. In fact it arrived 13 minutes early!

Frederique Jäger v EasyJet Airline Limited 16 September 2013 ruled that airlines cannot use delays to preceding flight as an excuse.

TUI switched the plane to Wamos Air 2 days before the flight. In their defence they said ‘TUI avers that the Aircraft change did not contribute to any of the delay experienced on the preceding flight’ yet one of their attachments states ‘A330 aircraft meant the flight time was longer than the TUI B788 schedule and although operated at high speed couldn’t avoid the 3hr delay’.

TUI stated ‘The amended flight plan further led to the preceding flight experiencing stronger than expected headwinds, further prolonging flight time’. However their attachment as evidence doesn’t mention headwinds at all! It only mentions turbulence.

One of the issues they reported was baggage handling & boarding on flight TOM023 (preceding flight) but, in response to another passenger they said the baggage handling & boarding issues were on flight TOM022 (our flight). They can’t even get their story straight!

I get your point about complaining to the Chief Executive of Aviation ADR but that won’t make them reverse their decision will it? I still won’t receive compensation. I think my only options are Small Claims Court or No Win No Fee

eskbanker

FingersLily said:

Frederique Jäger v EasyJet Airline Limited 16 September 2013 ruled that airlines cannot use delays to preceding flight as an excuse.

I don't think that case is really as compelling as you make it sound!  That judgment was indeed that the airline's attempt to assert knock-on delays as extraordinary circumstances wasn't tenable in the specific scenario of that case, in which the earlier flight was into a significant EasyJet operating base (Gatwick), where they could reasonably be expected to have spare aircraft and crew, but shouldn't be interpreted as disqualifying any and all citations of knock-on delays by airlines.  It was also a judgment from a junior court at county level and is therefore not legal precedent as such - no harm in citing it, but it's unlikely to be as powerful as it might appear, especially in the context of wider debate about knock-on delays, as discussed in other threads such as:
https://forums.moneysavingexpert.com/discussion/6457624/knock-on-effect-caselaw
https://forums.moneysavingexpert.com/discussion/comment/80376121/#Comment_80376121

Having said that, my understanding is that weather conditions do need to be serious if they're to be used as extraordinary circumstances, so flying a slightly longer route to avoid a storm, for example, is routine in day-to-day operations, whereas, say, airport/runway closures aren't.

FingersLily said:

I get your point about complaining to the Chief Executive of Aviation ADR but that won’t make them reverse their decision will it? I still won’t receive compensation.

I don't know, to be honest - it just seems worth a try if you're saying that Aviation ADR ignored significant aspects of your case(s), i.e. you're questioning their competence rather than simply disagreeing with the outcome.

shibumi

Hi 
I have a court date with TUI in January. 

Is there a flight delay skeleton argument template available at all? 

We had both flights TOM6596 on 1/7/22 (inward) and TOM6597 (outward) on 8/07/22 delayed and one diverted which TUI are using the extraordinary circumstance argument for. 

I know of another claimant who won their case in cc last month for the first flight so feel it is worth pursuing. 

Many thanks 

eskbanker

shibumi said:

I have a court date with TUI in January. 

Is there a flight delay skeleton argument template available at all? 

We had both flights TOM6596 on 1/7/22 (inward) and TOM6597 (outward) on 8/07/22 delayed and one diverted which TUI are using the extraordinary circumstance argument for. 

I know of another claimant who won their case in cc last month for the first flight so feel it is worth pursuing

Not aware of any such templates and would question their value anyway as circumstances will inevitably vary between cases, so you need to convey the specific grounds on which you're challenging their deployment of extraordinary circumstances, which you should already have done anyway if you've got as far as court.  You could rehearse your line(s) of argument on here and/or find out from the other claimant how they succeeded?

Do the extended timescales since the flights imply that you've already tried ADR, and if so, what did they say?

shibumi

eskbanker said:

shibumi said:

I have a court date with TUI in January. 

Is there a flight delay skeleton argument template available at all? 

We had both flights TOM6596 on 1/7/22 (inward) and TOM6597 (outward) on 8/07/22 delayed and one diverted which TUI are using the extraordinary circumstance argument for. 

I know of another claimant who won their case in cc last month for the first flight so feel it is worth pursuing

Not aware of any such templates and would question their value anyway as circumstances will inevitably vary between cases, so you need to convey the specific grounds on which you're challenging their deployment of extraordinary circumstances, which you should already have done anyway if you've got as far as court.  You could rehearse your line(s) of argument on here and/or find out from the other claimant how they succeeded?

Do the extended timescales since the flights imply that you've already tried ADR, and if so, what did they say?

eskbanker said:

shibumi said:

I have a court date with TUI in January. 

Is there a flight delay skeleton argument template available at all? 

We had both flights TOM6596 on 1/7/22 (inward) and TOM6597 (outward) on 8/07/22 delayed and one diverted which TUI are using the extraordinary circumstance argument for. 

I know of another claimant who won their case in cc last month for the first flight so feel it is worth pursuing

Not aware of any such templates and would question their value anyway as circumstances will inevitably vary between cases, so you need to convey the specific grounds on which you're challenging their deployment of extraordinary circumstances, which you should already have done anyway if you've got as far as court.  You could rehearse your line(s) of argument on here and/or find out from the other claimant how they succeeded?

Do the extended timescales since the flights imply that you've already tried ADR, and if so, what did they say?

Thanks for your prompt reply 
ADR took ages and finally sided with TUI as I think they were inundated with claims. 

Outward flight was capacity issued at Corfu on a previous flight but TUI cited extraordinary circumstances and blamed ATC.  The previous claimant has told me they won because ATC could only be blamed for a 31 min delay not 3hours 41 mins. These were mainly operational delays.  I’m hopeful this flight will be found in my favour based on this previous county court case findings. 

The inward flight was again affected by a knock on delay of the previous flight to Corfu. TUI again using extraordinary circumstance for incompatible weather conditions in Corfu despite other flights landing ok. This flight diverted to Athens to refuel having left Bournemouth late due to late pilot swap. 

I will question the weather excuse as I understand thunderstorms in Corfu are not unusual and the plane should have taken enough fuel to hold off landing for a short time. 

Also the easyJet bs jäger case May apply ? 

Any help would be most appreciated

Thanks

eskbanker

shibumi said:

Thanks for your prompt reply 
ADR took ages and finally sided with TUI as I think they were inundated with claims. Not sure it's viable to assert that ADR's decisions are affected by their workload (unless you can back that up with evidence), but what was the actual reasoning behind their decision?

Outward flight was capacity issued at Corfu on a previous flight but TUI cited extraordinary circumstances and blamed ATC.  The previous claimant has told me they won because ATC could only be blamed for a 31 min delay not 3hours 41 mins. These were mainly operational delays.  If you have access to the details of the argument used by the previous claimant then this should undoubtedly help, but was that case resolved in court or earlier?
I’m hopeful this flight will be found in my favour based on this previous county court case findings. Which ones?  County court judgments aren't legally binding so aren't particularly useful.

The inward flight was again affected by a knock on delay of the previous flight to Corfu. TUI again using extraordinary circumstance for incompatible weather conditions in Corfu despite other flights landing ok. This flight diverted to Athens to refuel having left Bournemouth late due to late pilot swap. 

I will question the weather excuse as I understand thunderstorms in Corfu are not unusual and the plane should have taken enough fuel to hold off landing for a short time. All flights must have enough fuel to allow some holding prior to landing so this would need to be quantified in more detail.  Diversions are a last resort for airlines, as they're hugely disruptive and expensive, so generally they'll take all reasonable steps to avoid them.

Also the easyJet bs jäger case May apply ? As above, I'm not convinced it's really applicable unless dealing with delayed flights into (and back out of) a main operating base, i.e. it's not particularly reasonable to expect airlines to have spare aircraft and crew available somewhere like Corfu.

Any help would be most appreciated

Some further thoughts added above....

shibumi

Thank you for your input.  

The first flight on 1/8/22 was affected by ATC so ADR sided with TUI without looking into the detail (most of the delay was due to capacity issues at Corfu with ATC being responsible for only 31 mins of that delay)   I am assuming TUI will present the same evidence as they did in the previous cc case? My judge has specifically asked TUI already for any cases settled on this flights. 

The second flight delay was due to a number of operational issues starting with pilot illness lack of fuel and a convenient thunderstorm in Corfu. I only have a national newspaper article describing these events so what other evidence can I reasonable obtain to proof the thunderstorm was not an extraordinary event? 

These capacity issues in Corfu were occurring regularly during summer 22 so were quite predictable yet TUI did nothing to mitigate 
many thanks 

eskbanker

shibumi said:

The first flight on 1/8/22 was affected by ATC so ADR sided with TUI without looking into the detail What (relevant) detail do you believe they missed?
(most of the delay was due to capacity issues at Corfu with ATC being responsible for only 31 mins of that delay) What's actually meant by capacity issues here?  These would often be ATC-related rather than a separate matter, but to what extent can capacity issues be attributed to the airline?
I am assuming TUI will present the same evidence as they did in the previous cc case? My judge has specifically asked TUI already for any cases settled on this flights. Sounds encouraging if a decision has already gone against them

The second flight delay was due to a number of operational issues starting with pilot illness lack of fuel and a convenient thunderstorm in Corfu. I only have a national newspaper article describing these events Do you have a link to the relevant article?
so what other evidence can I reasonable obtain to proof the thunderstorm was not an extraordinary event? I'm not sure that it's sufficient to show that thunderstorms aren't unusual, the recitals at the start of the regulations include "meteorological conditions incompatible with the operation of the flight concerned" within their definition of extraordinary circumstances, rather than requiring such conditions to be abnormal as such, so if a pilot deems the weather to be poor enough to require diverting then it'll be difficult to counter that.

These capacity issues in Corfu were occurring regularly during summer 22 so were quite predictable yet TUI did nothing to mitigate What mitigating measures do you consider would have been reasonable?

Further comments inline above....

shibumi

Thank you for your questions. 

I don’t think ADR looked beyond TUI blaming. ATC for the whole delay.  I believe TUI did not go into detail like they will have to in court.  I may be wrong. 

Corfu is a small airport and struggle to accommodate flights that are initially late to land. Lack of available stands. Luggage / check in and security capacity.  All are inherent in daily  operation of an airport.  I have another local press article reporting on this almost weekly occurrence with TUI.  

I think TUI could have mitigated these issues by  operating their flights on time. 

The news article detailing the previous flight debacle is 
https://www.mirror.co.uk/travel/news/passengers-watched-crew-eating-snacks-27480563

Ref the thunderstorms  I was under the impression that ATC restrictions had to be in place for the extraordinary circumstances reasoning to be used?   Am I able to prove that ATC put in no restrictions?

many thanks 

eskbanker

shibumi said:

I don’t think ADR looked beyond TUI blaming. ATC for the whole delay.  I believe TUI did not go into detail like they will have to in court.  I may be wrong. The Aviation ADR process involves both parties submitting detailed explanations of their positions (shared to each party), and then Aviation ADR should produce a cohesive determination based on these, so you should have seen whatever TUI submitted, as well as Aviation ADR's reasoning for their decision?

Corfu is a small airport and struggle to accommodate flights that are initially late to land. Lack of available stands. Luggage / check in and security capacity.  All are inherent in daily  operation of an airport. But not within airlines' control....
I have another local press article reporting on this almost weekly occurrence with TUI.  

I think TUI could have mitigated these issues by  operating their flights on time. That's not really mitigation though - there will inevitably sometimes be delays, such as when a pilot is unwell immediately prior to departure.

The news article detailing the previous flight debacle is 
https://www.mirror.co.uk/travel/news/passengers-watched-crew-eating-snacks-27480563

Ref the thunderstorms  I was under the impression that ATC restrictions had to be in place for the extraordinary circumstances reasoning to be used?  That's not my understanding - delays can be caused by ATC, or weather, or plenty of other reasons that also fall within extraordinary circumstances.  If a pilot deems weather conditions to be unsuitable then it doesn't matter what ATC thinks!
Am I able to prove that ATC put in no restrictions? Seems unlikely unless you have inside industry knowledge, but conversely TUI have to prove that there were relevant ATC restrictions, which they should already have done at Aviation ADR stage?

There are often delays with multiple contributory factors, but if 2 hours 59 minutes of a delay were down to the airline and two minutes were ATC related (or other extraordinary circumstances), then that gets the airline off the hook....