Compensation for delayed flights Discussion Area

richardw

delvey wrote: »

.... they did put in writing that the plane had a technical problem..

They'll probably stick with that as 'Extraordinary Circumstances', perhaps read up on Wallentin Hermann v Alitalia.

ian41

delvey wrote: »

No, they did put in writing that the plane had a technical problem, which they also told us at the airport
The ground crew did say they had another plane, but no crew for it

We are here to help you if we can and we want you to succeed – but more importantly, we do not want you to waste your time and money.

Please read the following very carefully. By your answers, it is clear that you have been contemplating legal action based on speculative information i.e. with little evidence to support it other than the fact that Thomson did let you down with your flight leaving some 9.5 hours late.

At this moment in time, in my personal view, you have not asked the right questions (and received the answers) to determine whether you have a case against Thomson and, if you do have a case, how weak or strong it is.

In post # 1239, you said “I was 50/50 whether to wait for the ECJ review but think I will wait, as I think it will improve my chances”. I am sorry but this shows that despite suggesting that you read earlier posts, you have misunderstood what you have read or been told. The ECJ judgment/review when it is handed down revolves around a key issue and will inform us whether or not compensation is payable for flight delays of 3 hours or more in England and Wales (currently it is payable in the rest of the EU countries, subject to a defence of extraordinary circumstances).

You are maintaining that your flight was cancelled and therefore the ECJ review is irrelevant. If you are claiming that your flight was delayed, then waiting for the ECJ review is necessary, as is a ruling from the ECJ that compensation should be payable subject to a defence of extraordinary circumstances. To summarise – if your flight is cancelled you can take legal action now; if your flight is delayed, you have to wait for a positive ECJ ruling before you can take legal action. The ECJ ruling cannot “improve your chances” if your claim is for compensation for a flight cancellation – it is irrelevant.

Nearly everything that you have posted leads me to believe that your Thomson flight was delayed and not cancelled and I will try to show you why.

1. When you were informed that the flight was cancelled some 10/15 mins before departure, you were informed then that the flight was being re-arranged. Points to a delay, not a cancellation.

2. As you said in your first post, after an hour or so they confirmed that the flight had been re-arranged for 0900. A delay, not a cancellation.

3. The flight number remained the same for the 0900 flight and the airport screens did not say flight cancelled. Points to a delay, not a cancellation.

4. In your last post to RichardW, you told us that Thomson had informed you at the airport that there was a technical problem with the original aircraft – which Thomson repeated to you in writing when they confirmed their view that the flight was delayed. The flight was delayed.

5. Against this, you have an iPhone app as well as Flightstats both of which show the flight as cancelled. I cannot comment on the iPhone app but can interpret Flightstats for you. According to the record, Flightstats logged the “cancellation” at 0145 UK time and closed their record of the flight based on information from the airport – not Thomsons. (Maybe iPhone got their info from the same source?) The interesting part is that when a flight is delayed, Flightstats keep the flight record open and record new departure and arrival times etc. Although your delayed flight departed on 2 July at 0900, Flightstats has no record of this or an alternative Thomson flight to Ibiza at 0900. But we know this delayed flight took place – fact as you were a passenger. Flightstats information can come from airports and airlines; clearly they were given incorrect information by the airport as you had been informed before 0145 that the flight would depart at 0900.


6. You mention ground crew in a number of posts. Ground handling at most airports is sub-contracted to specialist ground-handling companies. This includes check-in. Most airlines at Manchester use such companies. I do not know what Thomsons exact arrangements at Manchester are but I would give you short odds that the helpful people you spoke to were not authorised to make statements on behalf of Thomsons; it is a high probability that they were sub-contracted staff. The CAA made this point to you.

7. Before you can decide whether it is worthwhile to take action against Thomson – now (if you still believe it was a cancellation) or in the future (if it was a delay), as both RichardW and I have mentioned, you need to pester Thomson until you get some specific answers. Thomson has claimed that it was a delay and that the cause was a technical problem with the aircraft.

This is what you have to pin down because if you have read previous posts in detail, Thomson has to prove to you that this problem was an extraordinary circumstance in order to avoid compensation payment in a case of flight cancellation (and hopefully in a case of delay over 3 hours). You need to forget the peripheral stuff and question Thomson until you get proper answers. Read post # 1225 to give you an idea of what to say to Thomson. You could say

“You have claimed that the aircraft had a technical fault but gave no details. If you wish to use this to substantiate a defence of extraordinary circumstances, I ask you to submit proof to me that meets or exceeds the very high standards set out by the ECJ in both the Wallentin-Hermann and Sturgeon rulings dated 22/12/2008 and 19/11/2009 respectively. In this context, it is insufficient to merely claim extraordinary circumstances, as the Regulation requires you to prove it and I would like to examine such evidence.

If you fail to provide me with answers or co-operate with me fully, I must also draw your attention to the relevant Practice Direction concerning pre-action conduct prior to proceedings in the County Court here in England. If necessary, I will produce copies of our correspondence to date to the Court when and if, I decide to take legal action”.

Once you have such answers, you can then evaluate whether you have a case that you could win in court – at the appropriate time. Until you have answers, you do not have a case. If you ask Thomson and they do not reply in full, then this helps your case because of the second paragraph.

delvey

Ian, thanks very much for your advice. I will post a reply to your questions when I get home from work and can use my PC

delvey

Ian41 on your points

1. When we informed the flight was cancelled, we were told they would "try" to get us to Ibiza the following day, they did not guarantee they would or specify a time if the were going to

5 & 6. I understand that information at airports and by ground staff is sometimes incorrect, as with websites

7. Thanks you for the advice. I will write to Thomson what you have said and wait for there response

In hindsight, maybe I let my emotions think the flight was cancelled.
Plus the fact we were mis-treated so badly and seemed to have been lied to, may have brought vengeance into the equation.
In regards to waiting for the ECJ judgement, if it does go in the favour of passengers, and Thomson cannot prove it was "extraordinary" circumstances, then the chances of me receiving any compensation surely will be greater? But thats another debate

thanks again for the advice

ian41

delvey wrote: »

In hindsight, maybe I let my emotions think the flight was cancelled.
Plus the fact we were mis-treated so badly and seemed to have been lied to, may have brought vengeance into the equation.

I understand. You may note that this thread is littered with one-off posts from members who feel upset and rightly aggrieved at being treated in cavalier fashion. But most of these give up and the airlines count on this.

In my experience, it is necessary to channel all that upset and emotion into a non-emotional, factual and clinical attempt to claim any monies due from the airlines. You have to persevere to succeed. So it is up to you.

Cheryle_2

We were delayed just over 24 hours on a Thomas Cook flight, due to technical difficulties, from Fuerteventura at the end of October. We were given all inclusive accommodation but missed returning to work on time. Are we entitled to compensation as the flight was not from the UK?
Any advice gratefully received.

Caz3121

You will see reference to the Sturgeon case here which means that compensation for delays (rather than cancellations) where it is not outwith the airlines control have been put on hold due to some of the airlines appealing. You can make a claim however the airline may argue that the delay was outside their control. Even if not you are likely to have to wait well into next year for the outcome of the Sturgeon appeal.
If you had not received accom or meals you would be able to claim reimbursement for these but this does not seem to be the case here.
No airline will cover for loss of pay, maybe look to see what your travel insurance offers for delays and await the Sturgeon case

theboots

ian41 wrote: »

I have put together a draft below which I, as a layman, would use in this situation. Its purpose is self-evident and should help to show that you are not going away. Sending this letter/email does not commit you to take any legal or other action against SIA so don’t get worried. At the very least, it should give us more information than we had before. If you wish to amend or query any point, you can PM me.

I sent an email as you describe (thanks), I have received a reply from SIA not that it actually helps.

SIA wrote:

[FONT=&quot]Thank you for your email dated 23 November 2011.

As you know, SQ321 / 05 October 2011 was delayed owing to the combination of a technical problem with the inbound aircraft from Singapore scheduled to operate your flight and the need for us to rotate our fleet. In the absence of a replacement aircraft, consideration was given to whether there were any operational options available before a decision to delay your flight was made; and we remain very sorry that this was necessary.

Having carefully reviewed all the circumstances again, I regret I must respectfully decline your request for compensation under EC Regulation EC261/2004. This is because, the delay of SQ321 on 05 October 2011 was on this occasion owed to a combination of unforeseeable circumstances beyond the control Singapore Airlines; the consequences of which could not have been avoided despite all due care being taken. Furthermore, where the safety of our passengers and crew cannot be guaranteed, this is not a situation where an automatic payment of compensation is due under EC Regulation 261/2004.

We are indeed aware of EC Reg 261/2004 and the subsequent Sturgeon Judgment, and our obligations related thereto. We have consulted with the relevant legal experts on this matter and have been advised that this is a preliminary ruling relating only to the specific cases cited in it and is not binding for future cases. The ruling is viewed as inconsistent with the clear meaning and intention of the Regulation, and with the existing jurisprudence of the European Court. As such, it is widely considered to be incorrect and it is unlikely that this ECJ ruling will be followed in similar cases in the future.

Consequently, while Singapore Airlines is ready and willing to comply with its legal obligations generally, and under the Regulation in particular, it does not consider that these obligations extend to having to pay compensation to passengers who suffer delays. We are not sure if you are aware that all cases in the UK have been stayed by the English courts, pending the judicial review of the Sturgeon by the EU courts in view of the Tui/BA/easyJet reference.

Please also note that this is a flight delay, not a flight cancellation. Therefore strictly in accordance with wording of EC Reg 261/2004, affected passengers are entitled to the duty of care. Please allow me to explain that under EUR Regulation 261/2004 document you are referring to, stipulates when a flight is delayed for more than 4 hours an airline must offer, free of charge to the passenger:

Meals and refreshments in a reasonable relation to the waiting time
Opportunity to telephone / fax / send messages to relatives/friends/business associates.

The rules also stipulate that when the time of departure is the day after the time of original scheduled departure the airline should offer:
Overnight hotel accommodation
Transport between the airport and place of accommodation

Please also note that flight SQ321 is the latest flight to depart Heathrow in any one day.

We would like to once again apologise for the delay to this flight and for the discomfort and inconvenience caused.

Yours sincerely[/FONT]

ian41

Cheryle wrote: »

We were delayed just over 24 hours on a Thomas Cook flight, due to technical difficulties, from Fuerteventura at the end of October. We were given all inclusive accommodation but missed returning to work on time. Are we entitled to compensation as the flight was not from the UK?
Any advice gratefully received.

As Thomas Cook have many destinations from different countries, could you tell us where you were flying to/from? At the moment, you have given one part of the answer and to answer your question fully, requires the destination airport.

If it is not a UK airport (as you appear to be suggesting), then you are able to take action now for delay compensation (subject to an airline defence of extraordinary circumstances) - as the legal stay only applies to action through the UK courts.

Cheryle_2

Apologies for not making myself clear. We were flying back to Newcastle. I am guessing that this means we will not get any joy!