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Flight delay and cancellation compensation, Virgin Atlantic ONLY

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  • Jopaly
    Jopaly Posts: 7 Forumite
    Tenth Anniversary Combo Breaker
    Hi all, this is my first post on here, so please go easy on me. ��

    We submitted a claim for 4 of us on VS15 from Gatwick to Orlando on 25/05/09.

    We had been told at the time that the flight was delayed due to a cracked windscreen which required replacement.

    I have received a repudiation letter today, citing extraordinary circumstances. They state "in your particular case the flight was delayed because of the late arrival of the inbound aircraft which left Havana later than scheduled due to a local outage with Check In systems. In turn, this meant we had to revert to manual check in procedure which does take longer than if we were to have the computers."

    The crux of it as far as I can see is that the delay was down to a previous flight arriving late and not anything to do with our particular flight.

    Am right in thinking that they are not allowed to claim extraordinary circumstance if this does not relate to our specific flight?

    Also, do I now send a notice before action letter threatening to issue if they don't pay up.

    Thanks in advance for any help.
  • Vauban
    Vauban Posts: 4,737 Forumite
    Part of the Furniture Combo Breaker
    Jopaly wrote: »
    Hi all, this is my first post on here, so please go easy on me. ��

    We submitted a claim for 4 of us on VS15 from Gatwick to Orlando on 25/05/09.

    We had been told at the time that the flight was delayed due to a cracked windscreen which required replacement.

    I have received a repudiation letter today, citing extraordinary circumstances. They state "in your particular case the flight was delayed because of the late arrival of the inbound aircraft which left Havana later than scheduled due to a local outage with Check In systems. In turn, this meant we had to revert to manual check in procedure which does take longer than if we were to have the computers."

    The crux of it as far as I can see is that the delay was down to a previous flight arriving late and not anything to do with our particular flight.

    Am right in thinking that they are not allowed to claim extraordinary circumstance if this does not relate to our specific flight?

    Also, do I now send a notice before action letter threatening to issue if they don't pay up.

    Thanks in advance for any help.

    Yes and yes.

    I'm willing to wager that if you started legal action, Virgin wouldn't even defend.
  • Jopaly
    Jopaly Posts: 7 Forumite
    Tenth Anniversary Combo Breaker
    edited 22 May 2013 at 12:03PM
    Thanks for your prompt response Vauban, I really appreciate it.

    I'll post on here with an update in due course.
  • Lovehols_2
    Lovehols_2 Posts: 24 Forumite
    Seventh Anniversary 10 Posts Combo Breaker
    The excuse extraordinary circumstances. No 2 flap drive unit failed shortly prior to departure. After extensive investigation a new part was required which had to be flown in as not stocked locally. The cost of resources and equipment required to elimate this event would have been unreasonable. It would be intolerable sacrifice to store and maintain every part for different aircraft so no compensation. I have sent NBA letter today any one out there have any ideas if this is extraordinary circumstances?
  • Vauban
    Vauban Posts: 4,737 Forumite
    Part of the Furniture Combo Breaker
    Lovehols wrote: »
    The excuse extraordinary circumstances. No 2 flap drive unit failed shortly prior to departure. After extensive investigation a new part was required which had to be flown in as not stocked locally. The cost of resources and equipment required to elimate this event would have been unreasonable. It would be intolerable sacrifice to store and maintain every part for different aircraft so no compensation. I have sent NBA letter today any one out there have any ideas if this is extraordinary circumstances?

    Have a read of the FAQs - and especially the Wallentin judgement - and then decide for yourself!
  • Lovehols_2
    Lovehols_2 Posts: 24 Forumite
    Seventh Anniversary 10 Posts Combo Breaker
    Further to my thread I have looked at Waltham judgement but it just seems jargon not being a solicitor and perhaps thick I don't understand if it extraordinary circumstances please help!!!
  • Vauban
    Vauban Posts: 4,737 Forumite
    Part of the Furniture Combo Breaker
    Lovehols wrote: »
    Further to my thread I have looked at Waltham judgement but it just seems jargon not being a solicitor and perhaps thick I don't understand if it extraordinary circumstances please help!!!

    I think you do have a case, but you are likely to have to take it to court. If you're struggling already, I think you should consider using a no-win no-fee company who can navigate all the jargon for you for about 30% of your award. Good luck.
  • David_e
    David_e Posts: 1,498 Forumite
    Part of the Furniture Combo Breaker
    Lovehols wrote: »
    The excuse extraordinary circumstances. No 2 flap drive unit failed shortly prior to departure. After extensive investigation a new part was required which had to be flown in as not stocked locally. The cost of resources and equipment required to elimate this event would have been unreasonable. It would be intolerable sacrifice to store and maintain every part for different aircraft so no compensation. I have sent NBA letter today any one out there have any ideas if this is extraordinary circumstances?

    Just trying to extract the relevant paragraphs from the Wallentin ruling (with my emphasis):


    23. Although the Community legislature included in that list ‘unexpected flight safety shortcomings’ and although a technical problem in an aircraft may be amongst such shortcomings, the fact remains that the circumstances surrounding such an event can be characterised as ‘extraordinary’ within the meaning of Article 5(3) of Regulation No 261/2004 only if they relate to an event which, like those listed in recital 14 in the preamble to that regulation, is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin.

    24. In the light of the specific conditions in which carriage by air takes place and the degree of technological sophistication of aircraft, it must be stated that air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise. It is moreover in order to avoid such problems and to take precautions against incidents compromising flight safety that those aircraft are subject to regular checks which are particularly strict, and which are part and parcel of the standard operating conditions of air transport undertakings. The resolution of a technical problem caused by failure to maintain an aircraft must therefore be regarded as inherent in the normal exercise of an air carrier’s activity.

    25. Consequently, technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance cannot constitute, in themselves, ‘extraordinary circumstances’ under Article 5(3) of Regulation No 261/2004.

    26. However, it cannot be ruled out that technical problems are covered by those exceptional circumstances to the extent that they stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. That would be the case, for example, in the situation where it was revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety.
    The same would hold for damage to aircraft caused by acts of sabotage or terrorism.

    From my reading, that's clear. Routine faults are not on that basis "exceptional circumstances".

    Their argument that "It would be intolerable sacrifice to store and maintain every part for different aircraft" obviously refers to the very limited exception provided in the ruling:

    40. It follows that, since not all extraordinary circumstances confer exemption, the onus is on the party seeking to rely on them to establish, in addition, that they could not on any view have been avoided by measures appropriate to the situation, that is to say by measures which, at the time those extraordinary circumstances arise, meet, inter alia, conditions which are technically and economically viable for the air carrier concerned.

    41. That party must establish that, even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able – unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time – to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight.

    42. It is for the referring court to ascertain whether, in the circumstances of the case in the main proceedings, the air carrier concerned took measures appropriate to the situation, that is to say measures which, at the time of the extraordinary circumstances whose existence the air carrier is to establish, met, inter alia, conditions which were technically and economically viable for that carrier?

    This isn't too helpful to passengers as how can we even begin to assess what "intolerable" means?

    You can try and compare your own facts with those stated in the Wallentin case (which, to be fair, sounded like a fairly major repair):

    9. It is apparent from the order for reference that Mrs Wallentin-Hermann booked three seats on a flight with Alitalia from Vienna (Austria) to Brindisi (Italy) via Rome (Italy) for herself, her husband and her daughter. The flight was scheduled to depart from Vienna on 28 June 2005 at 6.45 a.m. and to arrive at Brindisi on the same day at 10.35 a.m.

    10. After checking in, the three passengers were informed, five minutes before the scheduled departure time, that their flight had been cancelled. They were subsequently transferred to an Austrian Airlines flight to Rome, where they arrived at 9.40 a.m., that is 20 minutes after the time of departure of their connecting flight to Brindisi, which they therefore missed. Mrs Wallentin-Hermann and her family arrived at Brindisi at 2.15 p.m.

    11. The cancellation of the Alitalia flight from Vienna resulted from a complex engine defect in the turbine which had been discovered the day before during a check. Alitalia had been informed of the defect during the night preceding that flight, at 1.00 a.m. The repair of the aircraft, which necessitated the dispatch of spare parts and engineers, was completed on 8 July 2005.

    You say that they said "
    a new part was required which had to be flown in as not stocked locally". It would be interesting to know more about that part. If it's, say, a £1,000 item the size of a desktop computer, maybe they should keep one in stock. If it's a £1m very large major component, maybe that might be less reasonable - but still possibly not "intolerable". Also, if it's something that they routinely have to replace, they should have a spare "just in case". If it's a rare event, maybe that would be unreasonable. You could ask for details about the part to explore these questions.

    Having said that, maybe you are just better to go down the court route. As noted, the Wallentin ruling said it is for the courts to determine the strength or weakness of the airline's defence.

    I've not read all the threads on the subject but if you look at any succesful claims, that might give you some further guidance


  • pmsjv
    pmsjv Posts: 3 Newbie
    After weeks (and several letters) of getting nowhere with Virgin for our delay claim I have today served a county court claim on Virgin.

    Flight (from Heathrow) was delayed for 15 hours due to a faulty airspeed indicator. Given the usual 'Exceptional Circumstances' response.

    It really is quite irritating to hear Sir RB bleat on about fair play etc ( The Virgin train bid for example) when his airline appears to be deliberately trying to avoid complying with their legal (let alone moral) obligations.

    I will let you know how we get on!
  • Lovehols wrote: »
    Further to my thread I have looked at Waltham judgement but it just seems jargon not being a solicitor and perhaps thick I don't understand if it extraordinary circumstances please help!!!

    I think I might have to join you on this one, I didn't understand a word of it so have no idea if I can send them another letter saying we will take court action. If anyone is able to help, please do.

    I have put my extraordinary circumstance letter on this forum before.

    Any help will be greatfully received and I am struggling with this :o
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