Court Failure Thread

GermanKeeper

Mark2spark wrote: »

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.

Perheaps the following decision of the "Bundesgerichtshof" is helpful:

Xa ZR 15/10 from 14.10.2010

Which may be found using the following page

juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/list.py?Gericht=bgh&Art=en

A noon flight from Berlin to Amsterdam was cancelled, because there was fog in Amsterdam in the morning and the plane could not start in Amsterdam and therefore could not get to Berlin.
So the extraordinary circumstances occured at a former flight of the plane and the company did not give enough evidence, that she was unable to organize another plane.

Observe that the passenger had booked another flight in the following year, which he didn't pay for, because he had the opinion that he could cancel this debth with the compensation; therefore the roles between claimant and defender are exchanged. All three courts involved in this case decided in the sense of the passenger.

GermanKeeper

JPears wrote: »

The delay of the previous flight was caused by a defective circuit breaker of the Flight Control Computer,tripping which took Jet2s engineers several attempts to fix. I am still unnerved that the patently defect circuit breaker was not replaced before the aircraft flew again. Jet2 still failed despite several requests, to explain why they had not investigated the cause of the circuit breaker tripping, blaming it on power spikes. Heaven help passengers if that power spike occurs while the aircraft is in flight and the flight computer crashes....
:T

There is another decision of the German Bundesgerichtshof, which says that technical defects are not extraordinary circumstances:

Xa ZR 76/07 from 12.11.2009

look for Rz 14
Especially it should not matter whether this defect appears rarely or not.

Mark2spark

David_e wrote: »

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.

Yes, that's what I was getting at David.
The problem is, is that once a judge has started summing up, there's no interrupting or correcting them before they give their verdict.
Ridiculous really. I wouldn't be able to resist giving the judge a parting shot, referring to a judge saying that (in friend of bills case) she couldn't find any evidence that the intolerable sacrifices apply *after* the EC, I would perhaps retort "OH! I wish you'd have said that you couldn't find the bit that shows it applies AFTER the EC. I could have pointed it out to you. It's HERE, in Wallentin. I would therefore like to appeal, as you haven't considered the full facts".

But judges don't like to be told that they are wrong.

Mark2spark

klint wrote: »

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.

Don't get me wrong klint, I'm in full agreement that the intolerable sacrifices test applies *after* the EC, I'm just saying that it can be read both ways by an inexperienced judge.

GermanKeeper

Now I am completely disoriented about No 41 of Wallentin-Hermann:

Reading the German text of the Jugdement (which is the "official" one, since the case came from Austria and thus German was the official language of the case)

Dieses hat nämlich nachzuweisen, dass es ihm auch unter Einsatz aller ihm zur Verfügung stehenden personellen, materiellen und finanziellen Mittel offensichtlich nicht möglich gewesen wäre, ohne angesichts der Kapazitäten des Unternehmens zum maßgeblichen Zeitpunkt nicht tragbare Opfer die außergewöhnlichen Umstände zu vermeiden, mit denen es konfrontiert war und die zur Annullierung des Fluges geführt haben.

this looks different from the English translation available at the website of the ECJ. It would mean:

That party must establish that, ... to prevent the extraordinary circumstances, with which it was confronted and which have lead to the cancellation of the flight.

Although the German version of the Jugdement is the version which has been underwritten by the Jugdes of the ECJ, what they really mean is the "original" French version:

Celui-ci doit en effet etablir que, même en mettant en œuvre tous les moyens en personnel ou en materiel et les moyens financiers dont il disposait, il n’aurait manifestement pas pu, sauf à consentir des sacrifices insupportables au regard des capacites de son entreprise au moment pertinent, eviter que les circonstances extraordinaires auxquelles il etait confronte conduisent à l’annulation du vol.

French is the internal conference language between the Jugdes of the ECJ, and they write their Jugdement at first in French before they give it to the translation service (there are working about 800 translators at the ECJ with law education) and then underwrite the official text in the language of the case.

My french is poor, but I think one could translate this also as follows:

.. to avoid, that the extraordinary circumstances, with which it(=the air carrier) was confronted, lead to a cancellation of the flight.

The French text gives no justification of the "und=and" in the german text nor for the use of the present perfect ("geführt haben") in the german text.

(There are some accents on the "e" missing in the French cited above).

GermanKeeper

Centipede100 wrote: »

These official translations therefore become the law in the language in which they are written so no amount of pointing out that a different language version of a judgment states something slightly different is likely to influence a judge in small claims.

Here I disagree a little bit: I think each judgement of the ECJ should be considered as a unit which appears in several languages. Under normal circumstances it should be sufficient for a national judge to consult the version in its own language. But if a problem of understanding appears, he should consult other versions/translations, especially the French and the language of the case.

On the homepage of the ECJ I found:

Language arrangements at the Court of Justice of the European Union

The provisions concerning language arrangements for proceedings before the Court of Justice are set out at Articles 29 to 31 of the Rules of Procedure. For proceedings before the General Court, the relevant provisions are Articles 35 to 37 of its Rules of Procedure. Under Article 29 of the Rules of Procedure of the Civil Service Tribunal, those provisions also apply to that tribunal.
The Rules of Procedure of the three Courts of the European Union reflect the rules for language use laid down in Council Regulation (EEC) No 1/58 determining the languages to be used by the European Economic Community. All other rules on language use apply mutatis mutandis to proceedings before the EU Courts.
The language of the case is determined for each action. Courts of the European Union The language of the case is one of the 23 official languages. In preliminary ruling proceedings, the language is always that used by the national court or tribunal which made the reference. In direct actions, applicants may choose the language of the case. They are not bound by their own nationality or by that of their lawyer. However, where the defendant is a Member State the language of the case is the language, or one of the languages, of that State. Once the language of the case has been determined, it must be used throughout the proceedings, both in the written and in the oral procedure. The choice of the language to be used is binding not only on the parties, but also on any third parties who may be granted leave to intervene.
The Court needs a common language in which to conduct deliberations. That language is, by custom, French. Thus, all documents lodged by the parties in the language of the case are translated into French as part of the internal working file. However, documents exchanged between the registries and parties are in the language of the case. This assumes particular importance at the end of the proceedings, since the only authentic version of the judgment handed down by either the Court of Justice, the General Court or the Civil Service Tribunal is that which appears in the language of the case. The judgments of both the Court of Justice and the General Court are published in the European Court Reports, which appear in all the official languages.
Thus, throughout the proceedings, the Directorate-General for Translation has a role to play in the communication between the parties and the Community judicature. It deals with the translation into French, from all the Community languages, of the documents lodged by the parties, and the subsequent translation into all languages, including, in particular, the language of the case, of the judgments of the Court of Justice, the General Court and the Civil Service Tribunal. However, Advocates General usually use their own language, and their Opinions are translated from the original text into the language of the case for the parties, and into all other languages for publication. Since references for preliminary rulings from national courts are notified immediately to all the Member States, they have to be translated into all the official languages too.
Given the importance of this role as an intermediary, the Court has recourse only to lawyers. The Directorate-General for Translation - which works for all three courts - is composed of lawyer-linguists who have a law degree or an equivalent professional qualification. Article 22 of the Rules of Procedure of the Court of Justice provides that the translation service is to be ‘staffed by experts with adequate legal training'.
In the course of the oral procedure, the Interpretation Directorate is responsible for communication between the parties and the judges. Simultaneous interpretation is provided at the hearings of the Courts of the European Union into as many languages as are needed.
The purpose of interpretation is oral communication. There can be no question of providing literal translation, if the very nature of the oral debate is to be respected. The interpreter's task is to convey the speaker's message faithfully in another language in real time.
In addition to having a perfect command of their working languages, the Court's interpreters must have a thorough knowledge of the subject-matter of the hearing. It is thus very important for them to study the documents and evidence in the case-file of the proceedings. Interpreters - bound by absolute confidentiality -have full access to the case-file, in order to familiarise themselves with the relevant legal issues and terminology.
As French is the language of deliberation Courts of the European Union, some documents and evidence may not be available in other languages. This means that all interpreters working for the Court of Justice of the European Union must have a good understanding of written French.

I am also uncertain quite how a judgment in the German Bundesgerichtshof can be of too much assistance in a case being heard in small claims in the UK.

I think there may be situations, where it is helpfull to know its judgement, espacially if there are doubts in the correct application of Wallentin-Hermann and if no judgements of the UK supreme court are available. In principle european law should be applied independent from the country, to which the court belongs. Therefore a judge should be encouraged to have a look at decisions in the other member states.

Of course I do not say that the claimant should mention this BGB judgement every time where Wallentin-Hermann is concerned. But I think it may be helpful to know that such judgements exists.

111KAB

GermanKeeper wrote: »

I think there may be situations, where it is helpfull to know its judgement, espacially if there are doubts in the correct application of Wallentin-Hermann and if no judgements of the UK supreme court are available. In principle european law should be applied independent from the country, to which the court belongs. Therefore a judge should be encouraged to have a look at decisions in the other member states.

Of course I do not say that the claimant should mention this BGB judgement every time where Wallentin-Hermann is concerned. But I think it may be helpful to know that such judgements exists.

Putting it bluntly .... I'm sure my Judge would have laughed me out of court had I mentioned anything along these lines and I fear I may have lost my case had I raised such a matter. He would not have been 'influenced' by any information (correct or otherwise) that 'interfered' with HIS interpretation of the law.

friendofbillw2

Mark2spark wrote: »

But judges don't like to be told that they are wrong.

Indeed.

I made all the points I could as forcefully as I dared. I'm actually very pleased with how I put my case, and was warmly complimented by Monarch's barrister outside while Madam considered her judgment. He thought I had him.

But ultimately 'the lady was not for turning'. And if you'd met my judge you would find that as chilling an analogy as I do!

I won't be appealing. I've accepted it, put it down to experience and moved on. You have to. It may not be fair, but dwelling on life's unfairnesses would eat you alive if you let it!

I'm still the luckiest guy I know for many reasons and this little setback, if anything, reinforces that for me.

Kevtamuk

Well, we had our day in court and it did not end well. To be fair, the beginning and the middle didn’t go too well either!

Some background:
We (4 family members) were on a Virgin Heathrow to New York flight in 2007. The aircraft boarded normally and pulled back from the terminal before taxiing out to the runway. Here it stopped for approx an hour. The pilot said there was a computer fault and we returned to the stand. The engineers fiddled around a bit and announced it had been fixed. Again we taxied out only for the fault to reoccur. We once again returned to the stand where some more faffing about took place. The fault was once again reported as fixed and we managed to take off at the third attempt. This meant arriving in New York 3 hours 57 minutes late.

After recently reading about EU Regulation 261/2004 my wife declared that we should put in a claim to Virgin. I wasn’t too sure, but being a dutiful husband, agreed to proceed. As most of you know, claiming from the airlines without the threat of court proceedings is as much use as sheltering under a paper umbrella in a monsoon. So, the next step was to start court proceedings. Being naïve young things (oh alright – naïve old things) we thought that Virgin might well pay up just for the hassle factor involved in them going to court. Wrong! They decided to take it all the way and we subsequently received their defence.
They claimed that the fault was caused by a faulty Spoiler Servo Control and that the aircraft was less than one year old. The part had only been in use for 5,167 flying hours and that the average flying part for this part was 360,000 hours therefore it was an extraordinary circumstance. There was also a witness statement from an engineer backing this up. They also made great play (and included a copy) of the preliminary guidelines from the NEB meeting in April 2013.

Now, having read about a great many cases on these excellent forums, I had to admit we had one of the weaker cases, but, what the heck, in for a penny, in for a pound. Off we went to court.

Our hearing was set for 10.00am on Tuesday 22nd October and my wife and I arrived on time only for the Usher to inform us that Virgin had rung to say they were running late. They eventually turned arrived at 10.35am and we were called into the hearing at 10.45am. The Virgin team consisted of two ladies – the Claims Manager (who did all the talking) and another lady who seemed to be there to provide support only as she didn’t say much in the hearing at all.
The Judge was a lady and the first thing she did was ask Virgin where their Defence Bundle was as the court hadn’t received it and why their expert witness was not attending. At this point I thought we might have a chance.
She also told us that the claim was in my wife’s name and only she could claim. My wife should also do the talking at the hearing, as she was the claimant. She eventually reluctantly agreed that I could represent my wife. We then had to go outside for another 15 to 20 minutes while she read Virgin’s defence.
On re-entering the hearing room both sides were asked questions and had a chance to make their position clear. It was obvious at this point that the Judge was placing a lot of emphasis on the preliminary guidelines from the NEB meeting. I pointed out that this had no standing in law and the rulings of the European Court had clear priority. I also gave her a copy of the Proposal to Amend Regulation 261/2004 from the European Commission dated 13/3/2013 where it is made very clear that technical problems inherent in the normal operation of the aircraft are NOT extraordinary circumstances.
I also pointed out that Virgin’s case relied upon the assumption that the Spoiler Servo Control had been correctly maintained until failure. I asked Virgin for the maintenance schedule for this component and the service records for the aircraft to show it had been correctly maintained and serviced. Of course, they did not have this.
After a bit of too and fro-ing we left the room for the Judge to consider her verdict.

At 12.05pm we went back and the judge summed up. She basically reiterated Article 16 of the Regulation which states that ‘Each member state shall designate a body responsible for the enforcement of this Regulation’ and took this to mean that the CAA were the body to which we should turn for guidance on what is and is not extraordinary circumstances! She particularly focussed on sections 23 and 26 of the guidelines even though I’d pointed out to her that these were specific to ‘Unexpected Flight Safety Shortcomings’ which could not apply to this component failure as the aircraft flew for another 10 days before Virgin took it out of service to change.
The next part really flabbergasted me. She stated that she accepted that it was difficult for the expert witness to be there and she accepted his statement (fair enough) and that Virgin were a reputable airline and she had no doubt that the aircraft had been maintained correctly! She went on to say that she had to consider what was ‘inherent’ and that she did not consider early failure of a component to be ‘inherent in the normal activity of the air carrier’. She duly found for the airline.

I have to say that we came away from the hearing feeling more than a little despondent. I was quite prepared to lose – if Virgin had turned up with full maintenance records I would have had little argument, even though it would still have been counter to Wallentin-Hermann, but to accept that maintenance of the aircraft had been correctly carried out purely on the basis that ‘Virgin are a reputable airline’ is frankly laughable.
Also, the strong emphasis placed on the NEB guidelines does not auger well for future cases if other Judges take a similar stance.

To be fair, the Judge was quite friendly and it was not an unpleasant experience. We also chatted to the ladies from Virgin during the breaks and they were very nice as well. Please don’t let it put anyone else from starting Court proceedings, I just wanted to set out our experience so that others could learn from it and be forewarned.

Kev

JPears

Commiserations. Once again, another duff judge by all accounts. This is truly awful and lamentable that you have no real cumback on the judge's personal opinion. By your account that's all it is here, very little if any consideration for facts of the case or precedents of case law. Appalling, truly appalling.
Might be worth a pm to Coby Benson if he considers an appeal worthwhile