Flight delay and cancellation compensation, Jet2.com ONLY

SirGimpy

Vauban wrote: »

I think this is a weak and tired argument. Why if an airline refuses to accord you your statutory rights should you not be able to sue them? I can see no compelling reason why not. And the fact that the airlines didn't try this on in the more senior courts, when they were throwing a number of arguments into the mix, is rather telling.

For precisely the reasons given by Lord Justice Toulson (as he then was) in Graham v Thomas Cook. Has it escaped your notice that it was a judgment of the Court of Appeal?

And of course, it isn't actually a statutory right, which is essential to the reasoning in Graham v Thomas Cook.

SirGimpy

howticklediam wrote: »

One has to ask, if j2 could have correctly applied this argument in Huzar, then why didn't they when so much was at stake?

The answer to this is slightly more nuanced. Basically, when a judgment is appealed the parties are not permitted to raise new arguments which were not put forward at the trial. So if the Graham v Thomas Cook argument was not raised at the trial (for whatever reason), it was not open to either party to raise it in the Court of Appeal.

As I said earlier, technically speaking Graham v Thomas Cook is a decision of the Court of Appeal (and therefore binding, at least insofar as it relates to Article 8) which has never been overruled. The airlines seem to accept that it has been left by the wayside by subsequent developments, hence why it is rarely raised these days. That does not necessarily mean that it is wrong (in my view it is not).

howticklediam

SirGimpy. Interesting. And thanks again for the reply.

howticklediam

BOS_Kicked wrote: »

After months of ignoring both me and the Spanish Authorities, I issued Jet2 with a NBA/LBA, sent Monday 19th and received/signed for by Jet2 on Tuesday 20th.

Finally, they have responded, but by saying they can't consider my correspondence without me supplying either a copy of the booking confirmation or boarding passes. I've given them everything else they've listed - passenger names, booking reference, date of travel and flight number.

They've also 'noted' that I'm claiming for passengers out with my 'family group'. There were two adults (myself and my wife) and three children. My wife kept her name after we got married so we've got different surnames. Two of the children have the same surname as me, one of them has my wife's. We are one family. They want written permission from all the passengers for me to claim on their behalf. This isn't a problem to obtain, but do I have to give it given we are one family? And one of the children is four!

Do I just stick to the 14 day limit suggested by Vauban and then go down the small claims route, or do I enter into a process with them that seems to be putting me all the way back to square one?

....And it was at this point that I took j2 to court. They tried to make me submit separate claims for the kids even though they are all minors. And they tried to make me submit a fresh claim in my wife's maiden name. It sounds like not much has changed even though the CAA have pressured them into dealing with claims more honestly. All that crap stopped as soon as I started a claim in court. I am now a Litigant in Person for the kids and Lay Representative for my wife. But don't do an on-line claim, use an N1 form to which you can add all the parties.

None of the separate claims/names stuff matters. If you start a claim in court it's all irrelevant. The court will accept the booking reference and your knowledge of events as evidence that you were there. J2 have the details anyway. Haven't you got the confirmation email?

They are definitely d!ck!ng you around. The fact that they have responded in seven days and not four to six weeks means they know what's going on.

If you are happy that it's not Extraordinary Circumstances then just start proceedings in court. They will listen.

Vauban

SirGimpy wrote: »

For precisely the reasons given by Lord Justice Toulson (as he then was) in Graham v Thomas Cook. Has it escaped your notice that it was a judgment of the Court of Appeal?

And of course, it isn't actually a statutory right, which is essential to the reasoning in Graham v Thomas Cook.

Would be interested if you could talk us through it. My understanding of the case is that Graham was suing for broader damages (millions?) for the airline's failure to adhere to the regulation. The court found that it was for the national regulator to police the regulation and not for individuals to sue for unspecified damages for apparent breaches. Which is not the same thing as seeking compensation for something which the law says you are entitled. Or do you contest that too?

SirGimpy

The crucial paragraphs of the judgment are paragraphs 10 and 19. In a nutshell, they say this:

1. Although the Regulation confers rights on passengers, it is a European instrument and it is left up to each Member State how to give effect to the Regulation under its own law;

2. It is therefore necessary to consider whether the English legal instruments which gave effect to the Regulation in this jurisdiction create a civil cause of action for damages so that passengers can sue to enforce their rights. If they do not, then passengers have no direct means of enforcing their rights under the Regulation as a matter of English law;

3. The Regulation was given effect in the UK by the Civil Aviation Regulations 2005 and through the regulatory powers conferred on the CAA by the Enterprise Act 2002. The Civil Aviation Regulations do not impose upon air carriers a statutory duty for breach of which an action for damages may be brought. Rather, they make it a criminal offence to fail to comply with an obligation under the Regulation and appoint the CAA as the designated body for enforcing compliance with the Regulation by using its powers under the Enterprise Act 2002;

4. Thus, although the Regulation confers rights on passengers, the manner in which the Regulation has been given effect in the UK does not give rise to a civil cause of action for damages for breach of statutory duty. Thus, in the event of a breach of the Regulation it is not open to a passenger to sue for breach. The only remedies are the newly created criminal offence and the CAA's enforcement powers.

You are absolutely right that Mr Graham was suing for a very large amount of money. His claim was framed as a claim for breach of Article 8, in that the airline had (according to him) failed to re-route his daughter as required by that Article. The case is therefore binding authority for the proposition that a breach of Article 8 does not give rise to a civil action for damages.

Vauban wrote: »

Which is not the same thing as seeking compensation for something which the law says you are entitled. Or do you contest that too?

The point which you are missing here is that the Regulation is not 'the law' in the UK until it is given effect here by English law. That was done by the Civil Aviation Regulations 2005 and it was the effect of those Regulations which the Court of Appeal was concerned with in Graham.

The problem, of course, is that the reasoning employed in the case is not specific to Article 8. It applies to the whole of the Regulation. In fact, Lord Justice Toulson (who is now a member of the Supreme Court) said as much in paragraph 10 of the judgment. There is no reason in principle why the Court of Appeal's reasoning does not apply to claims for compensation under Article 7, although the authority is arguably not binding in relation to Article 7 because the case did not concern Article 7.

As I have said in previous posts, the airlines rarely seem to rely upon this argument any more. They seem to consider it to be something of an anomalous relic. Technically speaking, though, the argument is still sound as a matter of law. Although there have been subsequent cases in the Court of Appeal concerning the Regulation (Huzar and Dawson), the Graham v Thomas Cook argument has not been considered in any of them. At any rate, the only court which could overrule it is the Supreme Court; the Court of Appeal is bound by its own previous decisions.

Vauban

Grateful for that. It still does not sit easily though with a sense of natural justice. If a Regulation, interpreted clearly in the ECJ, confers these rights on the passengers, it seems perverse to suggest that individuals cannot have recourse to the law to see these rights properly enforced.

And whilst your argument is legally interesting, it does not sit easily with the reality of:

a) the CAA who have said clearly, as the National Enforcement Body, that their legal advise is that passengers can take airlines to court over a failure to pay this compensation;

b) courts who have repeatedly awarded judgement for passengers and rejected this argument when put before them;

c) the airlines who, let's be honest, have invoked every conceivable technicality to avoid paying up. If they really felt that the Graham verdict offered a realistic prospect of success, I doubt they would have been so self-denying.

So that is why I am not persuaded the argument holds water. And I suspect it is largely because the court was focused on unspecified damages arising from a general failure to adhere to the Regs, rather than specific compensation as clearly indicated within them. But then I am no lawyer!

Vauban

Isn't it funny how much one forgets? But going back to my notes I remember now, Sir Gimpy, why the Graham judgement is a dead duck. It is because - as you must know - it was trumped in the European Court by the McDonagh judgement.

For others, McDonagh was the judgement against Ryanair that concluded that even if your flight is affected very extraordinary circumstances the airline has an obligation to look after you. But Ryaniair also tried the Graham v TC argument. In paras 20-25 the ECJ shot the argument to pieces:

Consequently, it must be held that an air passenger may invoke before a national court the failure of an air carrier to comply with its obligation, laid down in Articles 5(1)(b) and 9 of Regulation No 261/2004, to provide care in order to obtain compensation from that air carrier for the costs which it should have borne under those provisions.

Once that was determined in 2013, there was no further merit in the Graham argument.

SirGimpy

Vauban wrote: »

Isn't it funny how much one forgets? But going back to my notes I remember now, Sir Gimpy, why the Graham judgement is a dead duck. It is because - as you must know - it was trumped in the European Court by the McDonagh judgement.

For others, McDonagh was the judgement against Ryanair that concluded that even if your flight is affected very extraordinary circumstances the airline has an obligation to look after you. But Ryaniair also tried the Graham v TC argument. In paras 20-25 the ECJ shot the argument to pieces:

Once that was determined in 2013, there was no further merit in the Graham argument.

Completely wrong, I am sorry to say. Graham and McDonagh do not deal with the same question at all. The judgment of the European Court in McDonagh has no impact whatsoever on the decision of the Court of Appeal in Graham.

I have already set out above in detail what the Graham case was about. McDonagh concerned a separate question of European law. In that case, Ryanair argued that Article 16 (which provides for the appointment of an NEB in each Member State to ensure compliance with the Regulation) prevented a passenger from bringing a claim for breach of the Regulation. The European Court rejected that argument and held that Article 16 does not have the effect of preventing passengers from suing airlines directly.

In other words, McDonagh is a case concerning the interpretation of the Regulation itself, which is a question of European law. Graham is a case concerning the interpretation of the Civil Aviation Regulations 2005, which is a matter of English law. The sum total of the two judgments is that:

1. As a matter of the interpretation of the Regulation (which is a matter of European law), Article 16 does not prevent passengers from bringing court claims against airlines in the event of a breach of the Regulation;

2. As a matter of the interpretation of the Civil Aviation Regulations (which is a matter of English law), passengers do not have a civil cause of action for damages in the UK in the event of a breach of the Regulation. Thus, regardless of how the Regulation is to be interpreted according to the European Court, the manner in which it has been enacted in the UK does not create a civil cause of action for damages (which is what Graham was about).

To put it another way, the two cases deal with different stages of the enquiry: McDonagh deals with the meaning of the Regulation; Graham deals with how the Regulation has been given effect in the UK.

The former is a question of European law for the European court to determine. The latter is a question of English law for the English courts to determine. Even if the European Court had said anything inconsistent with Graham (which it did not, as I have explained above), the European Court has no power to overrule the Court of Appeal on an issue of English law.

JPears

At which point the average Joe is going to look at the legal system and say what a crock of the proverbial....