extraordinary circumstances?

Mark2spark

greeneyedlad wrote: »

Hello

I know it has been posted many times that a Technical Defect cannot be claimed as an Extraordinary Circumstance.

However just I wondered if them stating that the fault was;

"detected prior to a previous scheduled flight. This then caused a knock on effect to your flight. The aircraft is unable to be legally dispatched with this defect. Therefore the cause of this delay sits under Extraordinary Circumstances, as the technical issue with the aircraft was not due to poor maintenance and is not something that could have been foreseen." makes any difference??

Typical gobbledegook. A good percentage of people will give up at the stage of receiving that sort of nonsense, that's why they do it.
But really.......!!
It's not even your flight that they are claiming EC's exist on. :undecided
Nowhere in the Regulation does it state that unforeseen technical problems are EC's.
You have a valid claim and they know it. They spout that nonsense because there is zero punishment for them to just bare faced lie to people.

greeneyedlad

Mark2spark wrote: »

Typical gobbledegook. A good percentage of people will give up at the stage of receiving that sort of nonsense, that's why they do it.
But really.......!!
It's not even your flight that they are claiming EC's exist on. :undecided
Nowhere in the Regulation does it state that unforeseen technical problems are EC's.
You have a valid claim and they know it. They spout that nonsense because there is zero punishment for them to just bare faced lie to people.

Mark thanks for that.
Do you think what i said here;

http://forums.moneysavingexpert.com/showpost.php?p=62202851&postcount=10

makes any difference??

Mark2spark

No, it makes no difference, it's a technical issue that isn't extraordinary in any way at all.

friendofbillw2

greeneyedlad wrote: »

...the cause of this delay sits under Extraordinary Circumstances, as the technical issue with the aircraft was not due to poor maintenance and is not something that could have been foreseen...

This is flawed logic. Many of the airlines are (quite disingenuously IMHO) relying on it so point it out in your witness statements.

The courts have ruled in separate cases that :

1. Technical failures because of poor maintenance cannot be classified under 'extraordinary circumstances'.


2. Technical failures that could have been foreseen cannot be classified under 'extraordinary circumstances'.

It DOES NOT logically follow that

Technical failures not caused by poor maintenance and that could not have been foreseen ARE 'extraordinary circumstances'.

It is NOT binary. These things are not 'one or the other', e.g. 'the light is not on, therefore it must be off'.

You cannot define what is red by taking a few things that are blue and green, saying it looks nothing like the colour of those, therefore it MUST be red.

In order for delays etc. to have been caused by 'extraordinary circumstances' the circumstances around the delay have to have been, er, extraordinary! This has been defined as events which are 'not inherent in the normal exercise of the activity ofthe air carrier concerned and are beyond its actual control' (para 26 Wallentin)

So is a windscreen cracking, a rudder going stiff, etc. 'inherent in the normal exercise of the activity of the air carrier concerned'? Of course it is. These things happen to a plane somewhere around the world every day. That is why the three hour window to fix and get passengers moving with no compensation is there. If you can't do that, you compensate. Simples. These things are NOT in and of themselves, extraordinary.

Vauban

Like what the man just said.

greeneyedlad

thomson blamed monarch.
then monarch blamed thomson.
so i sent them both 14day letters saying i would take both of hem 2 court.
then thomson sent the above as an email.

Does that email mean that Thomson are now taking responsibility for it?

im just not sure if i should still be suing them both, or wether it even matters?!

blondmark

Vauban wrote: »

Not really, The Finnair judgement relates to a denied boarding situation following a rescheduling of aircraft - not a more conventional "knock-on" delay. I personally don't think it offers what some people think it does - definitive ECJ proof that knock-on delays cannot be extraordinary.

You're right - it's not definitive proof but it is highly persuasive. Case law operates by analogy. If your case has similar (not necessarily identical) facts to another decided case, then you can extrapolate that legal principle and apply it to your own case. The job of your opponent is to distinguish your case from that cited and argue that it's so different that there is no analogy.

Take this extract from Page 2 of the ECJ press release:

The Court notes that extraordinary circumstances may relate only to a particular aircraft on a particular day, which is not the case when boarding is denied because flights are rescheduled as a result of extraordinary circumstances affecting an earlier flight.

Take also this extract:

In its judgment today, the Court holds that the concept of ‘denied boarding’ relates not only to cases of overbooking but also to those concerning other grounds, such as operational reasons.

The court is saying that rescheduling due to extraordinary circumstances does not provide a defence in relation to later flights where boarding is then denied. Those previous ECs cannot be carried forward to cover those later flights that were affected and had to be rescheduled. The court expressly states that it applies not just to cases of overbooking but also to "other grounds" which is a broad interpretation, and the court gives just one example of those other grounds, being "operational reasons".

On a purely literal reading of this case, it is about ECs not being available as a defence if they only directly affected a previous flight which itself had a knock-on effect on a later flight (in relation to denied boarding).

But courts rarely adopt a strict black letter law approach to statutory interpretation. More typically they adopt the so called 'mischief rule' or 'purposive rule' which interprets law from the perspective of the intention of the legislation - to provide greater rights and compensation to air travellers who become stranded. That is those who are denied boarding, or whose flights are cancelled or severely delayed. That in essence is what your rights under the regulation are about.

I would suggest that it would fly in the face of an analogous, mischief or purposive approach to artificially restrict its meaning to cases of denied boarding, and to bar relief to the other remedies under the regulation, being those for cancellation and severe delay.

greeneyedlad

blondmark wrote: »

You're right - it's not definitive proof but it is highly persuasive. Case law operates by analogy. If your case has similar (not necessarily identical) facts to another decided case, then you can extrapolate that legal principle and apply it to your own case. The job of your opponent is to distinguish your case from that cited and argue that it's so different that there is no analogy.

Take this extract from Page 2 of the ECJ press release:

The Court notes that extraordinary circumstances may relate only to a particular aircraft on a particular day, which is not the case when boarding is denied because flights are rescheduled as a result of extraordinary circumstances affecting an earlier flight.

Take also this extract:

In its judgment today, the Court holds that the concept of ‘denied boarding’ relates not only to cases of overbooking but also to those concerning other grounds, such as operational reasons.

The court is saying that rescheduling due to extraordinary circumstances does not provide a defence in relation to later flights where boarding is then denied. Those previous ECs cannot be carried forward to cover those later flights that were affected and had to be rescheduled. The court expressly states that it applies not just to cases of overbooking but also to "other grounds" which is a broad interpretation, and the court gives just one example of those other grounds, being "operational reasons".

On a purely literal reading of this case, it is about ECs not being available as a defence if they only directly affected a previous flight which itself had a knock-on effect on a later flight (in relation to denied boarding).

But courts rarely adopt a strict black letter law approach to statutory interpretation. More typically they adopt the so called 'mischief rule' or 'purposive rule' which interprets law from the perspective of the intention of the legislation - to provide greater rights and compensation to air travellers who become stranded. That is those who are denied boarding, or whose flights are cancelled or severely delayed. That in essence is what your rights under the regulation are about.

I would suggest that it would fly in the face of an analogous, mischief or purposive approach to artificially restrict its meaning to cases of denied boarding, and to bar relief to the other remedies under the regulation, being those for cancellation and severe delay.

should i say any of that??
im not sure what 2 put on the European form iv 2 fill in, or have i 2 just put "please refer to the attached Particulars of the Claim" that you did for me Mark?!

Vauban

greeneyedlad wrote: »

should i say any of that??
im not sure what 2 put on the European form iv 2 fill in, or have i 2 just put "please refer to the attached Particulars of the Claim" that you did for me Mark?!

My only advice is don't submit anything that you don't understand.

greeneyedlad

Vauban wrote: »

My only advice is don't submit anything that you don't understand.

God Vauban i wouldnt b submitting anything then lol, BlondMark helped me with my claim & its all Lawyerish Legal Language iv no idea of hehe :rotfl: