Court Failure Thread

JPears

To play Devil's advocate (and I still saying Judge was wrong) here is the relevant section from Wallentin:
"The Community legislature intended to confer exemption from the obligation to pay compensation to passengers in the event of cancellation of flights not in respect of all extraordinary circumstances, but only in respect of those which could not have been avoided even if all reasonable measures had been taken. 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. That party must establish that 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. "
That could be interpreted several ways...

klint

I can only see one interpretation of that.

David_e

friendofbillw2 wrote:

She also read Wallentin to mean that the part about 'all measures short of intolerable sacrifices' related to the airline preventing the technical defect from happening, but said she could find nothing to suggest any requirements in the regulation or subsequent case law to require the airline to go to such lengths to keep the delay to a minimum once extraordinary circumstances were in effect.

Very disappointed for you directly and for the lamentable quality of the judgement.

I'm concerned that this observation has also been made by another judge, in Sstaggy1 's case, although thankfully he won.

This is his report:

http://forums.moneysavingexpert.com/showpost.php?p=63472445&postcount=3446

The point relevant to this thread is:

'In his summing up, the judge stated that the test of "reasonableness" related to reasonable measures to avoid the EC, NOT THE CONSEQUENCE OF THE EC, which is what my delay was.'

friendofbillw2 wrote:

... she could find nothing to suggest any requirements in the regulation or subsequent case law to require the airline to go to such lengths to keep the delay to a minimum once extraordinary circumstances were in effect"

Well how about Para 41 of the Wallentin ruling [my emphasis]?

"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."

How is it that two judges appear not to have read this, or worse, find it capable of being interpreted as meaning something other than the words actually say?

Mark2spark

Well if you were to read it in the reverse way that the judge has, then the airlines, utilising all of their resources, need to be taking planes out of service after *every* flight, to give them a thorough going over for serviceability.
But I do see that it can be read both ways, before and after.

Perhaps case law from the German courts, - I don't have the link or case number - where it was decided that hiring another plane from another airline as a substitute wasn't short of 'intolerable', could be included in the bundle as further guidance.

David_e

Mark2spark wrote: »

But I do see that it can be read both ways, before and after.

Not sure what you mean, Mark.

What is clear is that the EU (or whatever part thereof) made a right royal mess of the legislation for what was a good target: airlines messing passengers about.

For what it's worth, I think there is a argument that the law can give rise to compensation that is excessive. If the compensation was an hourly rate of, say, Euro 30, there would still be a financial incentive for airlines and they might be more likely to pay up without being dragged through the courts. Of course there will be a significant number of passengers for whom compensation under Reg 261/2004 is inadequate to cover financial losses, letalone inconvenience, disappointment.

Mark2spark

I mean that the wording can be read to mean that all of the resources, applied by the airline, are to *prevent* the EC from happening, and not applied *after* the EC has occurred.
It can be read both ways by a judge that hasn't read the case history where the more general interpretation is that the airline has to use all of it's resources, *once the EC has happened* to prevent the delay beyond 3 hours.
AKA 'the second test'.

klint

Mark2spark wrote: »

I mean that the wording can be read to mean that all of the resources, applied by the airline, are to *prevent* the EC from happening, and not applied *after* the EC has occurred.
It can be read both ways by a judge that hasn't read the case history where the more general interpretation is that the airline has to use all of it's resources, *once the EC has happened* to prevent the delay beyond 3 hours.
AKA 'the second test'.

Simply going by the grammar of the sentence itself:

"That party must establish that 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."

It is vital to note that the ECs are qualified. They are not just any ECs, they are "the extraordinary circumstances with which it was confronted" - this shows that the extraordinary circumstances have happened; you can't remove the qualifying clause from that sentence as it just wouldn't make sense if you did.

Vauban

I think this is right - plus remember extraordinary circumstances are, by definition of the same law, things which are "beyond the control of the airline". It is not logically possible to prevent something the origins of which are not in your control (otherwise it would be within your control).

I think para 41 is pretty clear that the very "prevent" applies to the cancellation (and, post-Sturgeon, delay) of the flight. This would also be consistent with the overall objectives of the law, which is explicitly to reduce inconvenience to passengers and improve their consumer protection.

David_e

Mark2spark wrote: »

I mean that the wording can be read to mean that all of the resources, applied by the airline, are to *prevent* the EC from happening, and not applied *after* the EC has occurred.
It can be read both ways by a judge that hasn't read the case history where the more general interpretation is that the airline has to use all of it's resources, *once the EC has happened* to prevent the delay beyond 3 hours.
AKA 'the second test'.

Ah, you mean where they have just read the Regulation but not Wallentin.

In that case, presumably the claimant's statement of case should give Para's 39 to 42 of the Wallentin ruling due prominence to make sure that the judge is aware. I've no experience of any kind of litigation but I would have expected/hoped that, as a minimum, the judge would be familiar with the relevant law - statute and case. It's very poor indeed if they are not - as we have apparently seen reported on the forum at least a couple of times.

JPears

Some interesting points, and so far on balance the judge was wrong in applying the law. The case could then be open to appeal as this is an important point in most cases.