Taking The Airlines To Court

stevemej

Vauban wrote: »

If this is the particulars of claim section for the N1 claim form, it should be much shorter and doesn't need to get into arguments about Huzar etc. All that comes later. There's a template I recall at the start of this thread. I would just copy that - short and sweet.



Yes I know, i have a signed letter from them authorising us to act on their behalf. the claim will be N1 by post.

BTW just received the latest claptrap letter from J2
firstly our claim is now time barred because their ts+cs say we wont sue after 2 years.
2ndly the tech delay was extraordinary circumstances.
3rdly the issue of whether a tech issue constitutes an extraordinary circumstance has been referred to the ECJ.
4thly - they note our ref to the Huzar case but the ECJ sit abovethe national courts.
(ps i will also post this in the j2 thread)

legal_magpie

Steve. As one who is sometimes accused of being too abrupt, I will simply say this. They are messing you about. Don't waste your precious time on unnecessary correspondence. Just get on and sue them. Let them run their arguments in Court. They will get short shrift.
JJ

glentoran99

Not sure they will, it's a tough one as I don't think the 2 years now included in terms and conditions has been fully tested.

stevemej

glentoran99 wrote: »

Not sure they will, it's a tough one as I don't think the 2 years now included in terms and conditions has been fully tested.

How would it stand up in court if J2 changed their terms and conditions to say that if there were a flight delay they could not be sued whatever the reason. I don't believe that any court in Europe would allow any company to change it's t's\and c's so that it does not have to comply with European law.
If J2 have changed their t's and c's to reduce a national statute of limitations from 6 years to 2 then I think this is exactly the same thing.
can't see it holding water.

Vauban

stevemej wrote: »

How would it stand up in court if J2 changed their terms and conditions to say that if there were a flight delay they could not be sued whatever the reason. I don't believe that any court in Europe would allow any company to change it's t's\and c's so that it does not have to comply with European law.

Of course you are right. It would be absurd and illegal to do this. But is this what they have done?

stevemej wrote: »

If J2 have changed their t's and c's to reduce a national statute of limitations from 6 years to 2 then I think this is exactly the same thing. can't see it holding water.

I'm no lawyer, but the Limitation Act prescribes a period of 6 six years to bring an action in most cases - or "whatever period may be agreed between the two parties". So:

a) if you tick the T&Cs box that says you agreed that any claim for damages must be brought within two years; AND
b) the courts agree that the statutory compensation under 261/04 is tantamount to damages; AND
c) the courts agreed that this isn't an unfair provision in the contract;

then there is in fact a case to argue. It doesn't necessarily contradict either the Regulation or the Statute of Limitation to do this.

I have read elsewhere that some airlines have tripped up on point b - early contracts talked about "damages" and were more recently amended to "damages and compensation", leading the judge to conclude that the latter did not axiomatically include the former (hence the amendment). That said, I don't recall the Court of Appeal being particularly impressed at the argument that the two were different legal concepts when this argument was put to them re Dawson ....

stevemej

Vauban wrote: »

Of course you are right. It would be absurd and illegal to do this. But is this what they have done?



I'm no lawyer, but the Limitation Act prescribes a period of 6 six years to bring an action in most cases - or "whatever period may be agreed between the two parties". So:

a) if you tick the T&Cs box that says you agreed that any claim for damages must be brought within two years; AND
b) the courts agree that the statutory compensation under 261/04 is tantamount to damages; AND
c) the courts agreed that this isn't an unfair provision in the contract;

then there is in fact a case to argue. It doesn't necessarily contradict either the Regulation or the Statute of Limitation to do this.

I have read elsewhere that some airlines have tripped up on point b - early contracts talked about "damages" and were more recently amended to "damages and compensation", leading the judge to conclude that the latter did not axiomatically include the former (hence the amendment). That said, I don't recall the Court of Appeal being particularly impressed at the argument that the two were different legal concepts when this argument was put to them re Dawson ....

Oh well - Hopefully I can be the new 'Huzar' regarding this dumb rule.

Gonna get my court papers in this week.

NoviceAngel

Vauban wrote: »

I'm no lawyer, but the Limitation Act prescribes a period of 6 six years to bring an action in most cases - or "whatever period may be agreed between the two parties". So:

a) if you tick the T&Cs box that says you agreed that any claim for damages must be brought within two years; AND
b) the courts agree that the statutory compensation under 261/04 is tantamount to damages; AND
c) the courts agreed that this isn't an unfair provision in the contract;

Point c is of particular interest to me, It could very well be argued that this is an unfair contract.

I had a Court case against BT advertising - nothing to do with flight delay but I felt that I had signed what I believed to be an unfair contract.

We were due for a Court date and BT settled out of Court. Indeed, all it would take is a good aviation lawyer with knowledge of contract law to test this theory .

stevemej wrote: »

Oh well - Hopefully I can be the new 'Huzar' regarding this dumb rule.

Gonna get my court papers in this week.

- stevemej, now to be named the 'stevemej' thread!

I'm sure there's a good NWNF Solicitor hanging around Wilmslow.

ohh the BT details https://forums.moneysavingexpert.com/discussion/4812846

Cheers,

NoviceAngel

shell69_2

Hi,

I'm preparing my bundle at the moment - can I use dividers in my file to separate documents and can I staple multi page documents?

Don't want to go wrong at this stage!

Thanks for any help and a very merry Christmas to all the lovely people who help out with advise.

batman44

shell69 wrote: »

Hi,

I'm preparing my bundle at the moment - can I use dividers in my file to separate documents and can I staple multi page documents?

Don't want to go wrong at this stage!

Thanks for any help and a very merry Christmas to all the lovely people who help out with advise.

You can use dividers, do not use staples as every page must be numbered and be able to be accessed easy. Make sure your statement of case refers to the document perfect, I would reccomend evidence docs be in a separate file so you can refer to without fumbling about for you and the judge. Use a four ring binders, if you need to, highlight in yellow the points you need to clarifie, i am not though.

razorsedge

If a hearing takes place (for which a fee has been paid) and the claim is stayed at that hearing, once the claim becomes unstayed and is re-listed for a further hearing does a second hearing fee normally have to be paid?

Given that Claimant usually pays hearing fees, if a second fee is payable who should be liable for the second fee if the Defendant requested the stay at the first hearing?