Taking The Airlines To Court

Vauban

Star9272 wrote: »

Do we now have to start counting how many times a part goes tech?

No we do not: "the frequency of the technical problems experienced by an air carrier is not in itself a factor from which the presence or absence of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 can be concluded".

JPears

Vauban wrote: »

No we do not: "the frequency of the technical problems experienced by an air carrier is not in itself a factor from which the presence or absence of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 can be concluded".

A fact I pointed out, frequency, by its definition implies neither neither high or low rate of occurrence. Unfortunately, by the time the judge gives this incorrect reasoning in the court process, it is too late to object.

Note the judge actually fails to use the term "extraordinary" found in the regulations, mistakenly using exceptional.

Mark2spark

JPears wrote: »

Here is a transcript of the Judges summing up in my lost case.


4 Looking at the overall obligations, there clearly was a delay and, as has been agreed, the onus passes over to the defendants to establish that it was an exceptional circumstance. The fact of a delay alone is not sufficient to entitle Mr. P to compensation. It is not a strict liability case, as such, in that because there is delay Mr. P is entitled to compensation. There is a very high standard put upon the airlines by these Regulations, but, nonetheless, it is not an absolute, and if the defendants then prove on the balance of probabilities that there were exceptional circumstances in respect of this delay then they can escape liability here. So the question is whether or not there were exceptional circumstances.

Surely that point alone is enough to warrant an appeal? It's a statutory compensation for delays?

Note, some of the EU wording uses exceptional in places, I think it's a translation thing.

JPears

Mark2spark wrote: »

Surely that point alone is enough to warrant an appeal? It's a statutory compensation for delays?

Note, some of the EU wording uses exceptional in places, I think it's a translation thing.

I would tend to agree with you - the compensation is for any delay over a certain time/distance permutation, whatever the reason unless the airline can prove both extraordinary circumstances AND all reasonable measures to reduce/avoid delay. So the Judge's choice of phrase would appear to incorrect?
Which is the specious argument?
However Coby Benson has advsied me there are insufficeint grounds to continue the appeal. As I am not the expert in this field, I bow to his learned opinion.
But I have to disagree, the "official" reg 261/2004 as published in the "Official Journal of the European Union" does not use exceptional at all in the 7 page document.

Mark2spark

Yes, I agree, the actual Reg itself doesn't use exceptional as a word. But i've seen it pop up in the various case laws that go with it.
Bottom line (IMO) is that the use of the word instead of extraordinary wouldn't be enough for an appeal, or to build a case on.

JPears

Mark2spark wrote: »

Yes, I agree, the actual Reg itself doesn't use exceptional as a word. But i've seen it pop up in the various case laws that go with it.
Bottom line (IMO) is that the use of the word instead of extraordinary wouldn't be enough for an appeal, or to build a case on.

Agreed, but it shows the lack of reading up of regs? And yes Wallentin does have one exceptional that presumably should say extraordinary?

cadmus

just one little quickie .... almost completed my MCOL and at the final stage..... its regards to the interest mine worked out to £190 on 3x EUR300 from delay 21/07/2010 upto today which equates to approx 17 pence a day .so I then listed my total interest in the appropriate box as £190 BUT on the next page its states my daily interest up to judgement as £190 daily ...obviously this is wrong , so should I of put 17pence on the previous page and then the final page would show as 17 pence a day interest up to judgement .... I thought the full interest amount had to be entered and not the daily amount so any advice please.

Mark2spark

JPears wrote: »

Agreed, but it shows the lack of reading up of regs? And yes Wallentin does have one exceptional that presumably should say extraordinary?

Yes, I believe it's a slip.

So what I'm saying is that the fact that your judge also used it, would also count as a slip, and not a lack of understanding of the reg.
IMO
Not enough to form an appeal, or part of, anyway. Not that one is forthcoming following the advice from Coby. Which is a shame in my book. Your judge was wrong, simple as that. I'd bet another passenger on the same flight, with a different judge, might well succeed.

Mark2spark

Sorry Cadmus, I can't get to the relevant page of MCOL to see what is going wrong.
All I can suggest is you read the MCOL guide again.

David_e

I'm anticipating my case going to court despite two recent Virgin successes reported on this site which appear to have very similar circumstances. I need to brush up on pre-court hearing procedure but understand that questions/information requests can be put forward for the airline defendant to answer. Would it be appropriate/permissable/helpful to bring up the two cases mentioned - basically asking them to confirm compensation has been paid and to distinguish the circumstances from mine? Would it be appropriate/permissable/helpful if it was possible to obtain statements from passengers who have successfully claimed (in similar circumstances)?

Any thoughts gratefully received.