Compensation for delayed flights Discussion Area

ian41

eddie23 wrote: »

This now means I have to take time off work, pay for a taxi(would have got a lift) and have a longer travelling time. Would the delay rule apply here?!

eddie

This was a !!!!-up between Flight Centre and Iberia. As the flight did not exist in the first place, it follows it cannot be either cancelled or delayed subsequently. In fact, in my view, EC Reg 261/2004 is irrelevant here.

Here is how I would approach it. When you return, work out the cash loss for the time off work and taxi, and make a direct claim to Flight Centre for this sum. Do make it exact so that it can be substantiated if necessary. Flight Centre should settle this if they have any sense. The longer routing might win you sympathy but no cash/compensation so forget this totally.

If they fail to do so, escalate it to ABTA as Flight Centre is an ABTA member.

If that fails, then you will need to take a simple MCOL action against Flight Centre to recover your expenditure. If it gets to that point, there are many helpful threads and further support available.

That is what I would do as a layman but others may have a different view.

Do post back and tell us what you decide to do and then how you get on.

Chrishazle

ian41 wrote: »

Short on time tonight but sorry the answer is the same as given to DSA - in my view compensation is extremely unlikely.

That is correct regarding the downgrading - see Article 10.2(c) of EC Reg 261/2004.

Yes by all means have a go but keep your expectations realistic and in tight control - as suggested above.

Hope that was gentle enough for you

Ian,

Apologies for the delay - server timed my log-in out and for reasons unknown I was unable to log back in. Admin have now sorted the problem.

As our delay was not caused directly by the stroppy passenger on the Manchester-Cancun flight (and thus that aircraft being unavailable for our flight), but by mechanical failure on the aircraft Thomson planned to use in its place on our flight, does "exceptional circumstances still apply? I can see it applying to the delay DSA_ experienced, as that was directly caused by the Halifax diversion - but our delay was caused by "technical reasons" with the replacement aircraft!

Thanks for your help - I'll post any response from Thomsons, but suspect it will be a while - and that their initial response will be ***** off!

Chris

pycroft

Hi

here is the reply to the outstanding Air Europa letter. I would appreciate any advice on how to reply




Many thanks in advance






Mr. Anthony Pycroft



Palma de Mallorca, on 20 March 2012

Our Ref.: //35476

Dear Mr. Pycroft,

We acknowledge receipt of your letter on February 16, 2012 concerning our flight UX-098 Miami - Madrid January 01 2012, UX-1015 Madrid - London (Gatwick) January 02 2012. Once again, we are very sorry for the need to cancel the above mentioned flight, with it being impossible for the company to perform this flight as was originally programmed due to the Pilot Strike, this being an extraordinary circumstance for the Company.

Once the minimum services are confirmed, as well as the flights affected by the strike, a series of measures are initiated in order to avoid any inconvenience to our passengers; being all the outgoing agencies and the rest of our clients notified and offered a transport alternative at their convenience or the reimbursement of the ticket. To that, we should add that the strike call has had widespread diffusion on the Media, as well as Air Europa has published a list of the affected flights at the home page of our website, in order that all passengers can easily access the information in advance. This information is also sent updated every week to all the outgoing agencies.

Air Europa has acted as diligently as the situation required, to minimize the effects of the above mentioned cancellation to its passengers, using all the means within our reach as to avoid as much as possible any damage becoming from the particular situation of every passenger in these extraordinary circumstances.

We inform you that, in case you were not interested in the alternative offered by the company you can request the refund of the non used ticket through the office or travel agency where it was issued.

Nevertheless, we would like to inform you that, according to the International regulation in force, the airline will not be obliged to pay any compensation if it can prove that the cancellation was due to an extraordinary circumstance: as political instability, meteorological conditions, security risks, unexpected flight safety shortcomings and strikes that affected the operation of an operating carrier, or the impact of an air traffic management decision.
Once more we are very grateful to have received your valued comments, due to it is our constant aim to improve our service.

Yours sincerely,


Customer Relations Department
Air Europa

Fax: +34 971 178 439
E-mail: relacionesconclientes@air-europa.com

ian41 wrote: »

As a layman and if it was me, I would send a “shake the branches” (and slightly provocative) letter which will also double as a Letter before Action. It will give Air Europa something to consider. See below for my suggestion. Please re-check spellings, formatting, dates and amounts but otherwise suggest you leave as is.

After the 21 days is up and if Air Europa fail to respond as required, you would then be able to take appropriate legal action. Depending on the response to the final para of the letter, you might need to use the ESCP rather than the MCOL/English Courts. But that is getting ahead of ourselves and sending this letter does not commit you one way or another.

You could send either as a letter or by email.

I have sent you a PM to read.

Any queries let me know. If not, let the fun commence!

Please acknowledge that you have read this post by posting an acknowledgement or hitting the Thanks button.

=========================================
Insert Airline Name and Address below
XXXXX
XXXXX
XXXXX


Dear Sirs

Letter before Action

Flight number ux 1015
Date 2 January 2012
Booking reference XXXXX
Passenger names XXXXX XXXXX XXXXX (start with name of lead passenger)
Incident reference number (if there is one)XXXXXXXXXXX

To conform with the UK’s Ministry of Justice’s Rules and Practice Directions, we outline below our claim in full to avoid any possible misunderstandings and to give you a final opportunity to settle this matter before court action.

Following your cancellation of flight ux1015 from Madrid (MAD) to London Gatwick (LGW) on 2 January 2012, this letter advances claims for compensation and reimbursement of our re-routing costs pursuant to Articles 5, 7, and 8 of EC Regulation 261/2004 (“the Reg”).

You had previously offered us a re-routing on a flight from Madrid to London Gatwick departing on 7 January 2012, some five days later. We declined this re-routing due to the exceptionally long delay between the original and revised flights and requested sensible alternatives. Our reasonable requests were denied by Air Europa. Subsequently on 30 December 2011, our travel agent, Hays Travel, booked flights with easyJet for onward travel from Madrid on 2 January,the day we were originally scheduled to travel with Air Europa from Madrid to London Gatwick.

1. Compensation due under Articles 5 and 7 of the Reg.

Our first claim is for Euro 250 compensation per passenger making a total of Euro 500 for the cancellation under Articles 5 and 7. Based on an ECB exchange rate of £0.83514 to 1 Euro at 2 January 2012, the equivalent is GBP 417.57.

In your letter dated 7 February 2012, you admitted that our flight ux 1015 on 2 January 2012 had been cancelled. You suggested that if this was an extraordinary circumstance then compensation would not be payable to us for our cancelled flight. We disagree that this is an extraordinary circumstance.

In that context, an external strike affecting an airline might be considered extraordinary in certain circumstances but a SEPLA inspired internal strike with your own pilots is entirely a different proposition, particularly when most of your flights operated on that day and there is always a possibility that commercial considerations may have had some influence on which flights were due to be cancelled or operate.

Should you wish to continue with a defence of extraordinary circumstances, I ask you to submit proof to me that meets or exceeds the very high standards required as discussed and illustrated by the ECJ in both the Wallentin-Hermann and Sturgeon rulings dated 22/12/2008 and 19/11/2009 respectively. I would like to examine the robustness of such evidence.

In addition, if you continue with that defence, you will need to demonstrate and prove to me that, under the Regulation, having established that there was a problem, you took all reasonable measures to avoid this cancellation.

Once again, it is clear to me that you did not take all reasonable measures to avoid the cancellation. I should remind you that Recital 12 of “the Reg”, states that

“the trouble and inconvenience to passengers caused by cancellation of flights should also be reduced. This should be achieved by inducing carriers to inform passengers of cancellations before the scheduled time of departure and in addition to offer them reasonable re-routing, so that the passengers can make other arrangements. Air carriers should compensate passengers if they fail to do this”

Unless you can produce and prove a new sustainable defence, then you have no reason to refuse payment of the compensation due under Articles 5 and 7.


2. Reimbursement of tickets purchased by us to allow a reasonable re-routing under Article 8 of the Reg.

Under Article 5.1(a) and (b) of the Reg, and regardless of whether or not compensation is payable, the passengers concerned shall:

(a) be offered assistance by the operating air carrier in accordance with Article 8; and

(b) be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in event of re-routing when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1)(b) and 9(1)(c);

Turning now to Article 8 we find the following

Right to reimbursement or re-routing
1. Where reference is made to this Article, passengers shall be offered the choice between:

(a) - reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger's original travel plan, together with, when relevant,

- a return flight to the first point of departure, at the earliest opportunity;

(b) re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; or

(c) re-routing, under comparable transport conditions, to their final destination at a later date at the passenger's convenience, subject to availability of seats.

There is no ambiguity here. It was our choice to accept a re-routing rather than take a refund and under Article 8.1(b) this “reasonable” re-routing should have been provided to us by Air Europa at the earliest opportunity. It was not; your suggested re-routing of a flight from Madrid on 7 January (5 days later) does not equate with the words “at the earliest opportunity”.

For the record and so that the court fully understands your aberrant behaviour in this matter, we received messages from Hays Travel, as your agent, informing us that we needed to buy our own return flights (initially from Miami and then subsequently from Madrid) and then apply for a refund.

You stated this on at least two separate occasions, knowing that this was completely wrong and you were acting contrary to the requirements of Article 8 of EC Reg 261/2004. Frankly, you ignored your legal responsibilities to us under the Reg and you were trying to bully us into accepting your position.

The most stupid part about Air Europa’s suggested re-routing five days later is that you would have been responsible for our accommodation, food and communication costs (under Article 9) for the 5 days and nights while we waited in Madrid for our re-routing. That would not have made economic sense to you.

You may also wish to note that we are aware that there were a number of passengers on our flight from Miami who were re-routed by you through easyJet to the UK – and at no cost to them. Why did you not provide the same service to us? Equally, as a member of Skyteam, you could have considered re-routing us via Paris or Amsterdam with Air France or KLM. Despite several requests for a sensible re-routing, you did not bother to fulfil your legal obligations.

So please do not waste further time. It will be made clear to the court that you not only failed to provide a satisfactory re-routing but you did this deliberately. As a consequence, we had to make our own “reasonable” flight re-routing with easyJet at a cost of GBP 432.00. We attach a further copy of the receipt.

We therefore ask you to provide a cheque for a total of £417.57 plus £432.00 = £849.57 in respect of compensation and a reimbursement of the re-routing costs that you forced us to purchase. We inform you that we expect to receive your cheque in full settlement within 21 days of today’s date or we reserve the right to commence legal action against you in respect of the damages specified above or indeed any other legal cause of action, without further notice. In addition, we reserve our rights to forward full details to the AESA, CAA and the EU Transport Secretariat and relevant media in the UK and Spain.

In that context, we note that Air Europa has an office at 126 Wigmore Street, London W1U 3RZ. Unless you settle our claims as stated in full, when replying would you advise whether the above is the correct address in the UK to receive court documents. If not, please advise an alternative address for service in the UK.

Yours faithfully

ian41

Chrishazle wrote: »

Ian,

Apologies for the delay - server timed my log-in out and for reasons unknown I was unable to log back in. Admin have now sorted the problem.

No problem at all. There are occasional glitches in the sytem

As our delay was not caused directly by the stroppy passenger on the Manchester-Cancun flight (and thus that aircraft being unavailable for our flight), but by mechanical failure on the aircraft Thomson planned to use in its place on our flight, does "exceptional circumstances still apply? I can see it applying to the delay DSA_ experienced, as that was directly caused by the Halifax diversion - but our delay was caused by "technical reasons" with the replacement aircraft!

I gave you my view - i could be right or wrong and only time will tell. Correctly in my view, you are writing to Thomson's using an earlier template of mine which requests disclosure of any "extraordinary circumstances" defence. You can come back at the time of reply and we can review.

Yes - even with the short time I had available yesterday - I was attempting to dampen expectations. EC Reg 261/2004 gives protection to passengers but to gain compensation requires a good case, bucketloads of determination and perseverance and in at least 95% of cases, a willingness to take legal action. The latter is not difficult but the research and time commitment can be high. It is miles away from the travel equivalent of PPI where one makes a claim and a cheque arrives shortly afterwards but there are some posters who believe it is that simple.

I am saying the above as a general comment to all potential claimants who will read this thread - and it really is not specific to your claim.

If you wish to battle and are determined to fight all the way, the forum will provide help and advice - which again, you are free to take or ignore.

So yes, please do come back when you have an update. In the interim, please review other earlier posts on this thread for inspiration and background.

ian41

pycroft wrote: »

Hi

here is the reply to the outstanding Air Europa letter. I would appreciate any advice on how to reply

Airlines are like politicians– they answer with points that they have pre-prepared and ignore the questions posed. You have received a standard cut-and-paste reply – and over the course of the strike Air Europa will have sent thousands of similar letters. It ignores all your questions.

They are trying to confuse the situation so that you simply give up. Air Europa will be fully aware that EC Reg 261/2004 Article 8 provisions re re-routing are mandatory and apply whether or not they were fully responsible or blameless for the flight cancellations – there is simply no let-out for the airline once they cancel any flight. So in my view, you are on solid ground legally for the re-routing costs.

The compensation for cancellation is less clear cut – it could go either way.

The next stage is to either press ahead with legal action to recover the re-routing costs and/or compensation or drop it. As an interim move, you could re-send your previous email to the legal department at Air Europa and ask specifically to receive answers on the points raised.

I said to Chris in post #1502, that EC Reg 261/2004 gives protection to passengers but to gain compensation requires a good case, bucketloads of determination and perseverance and in at least 95% of cases, a willingness to take legal action.The latter is not difficult but the research and time commitment can be high. It is miles away from the travel equivalent of PPI where one makes a claim and a cheque arrives shortly afterwards but there are some posters who believe it is that simple.

Ultimately, you have the choice – drop it or pursue it – no-one else can make that decision for you because it a personal matter.

If you need to know more about the legal options – costs, possible methods etc then let me know. It is not difficult and you could use a procedure where you are less likely to put a foot in the doorway of a court.

Post back if you need any further clarification, have any queries or when you have made your decision.

As usual, it would be helpful if you could acknowledge that you have read this post by a simple reply or by hitting the Thank You button

jillsa

Centipede100 wrote: »

An interesting commentary on this week's challenge to Sturgeon in the ECJ in the linked cases C-581/10 and C-629/10 can be found in Cees Van Dam's blog here: http://airpassengerrights.blogspot.in/2012/03/sturgeons-fate-part-1-hearing.html

In summary, Advocate General's Opinion will be delivered on May 15th with the judgement handed down either by July 16th or in early Sept, with the former date being favoured by the author, who also expects a judgement in favour of passengers.

In view of previous judgements handed down by the ECJ, it would be somewhat illogical IMO if they took the opposite view.

I'm currently fighting Continental for a delay of 30 hours for a flight last November. They've basically told me to naff off and that mechanical failure was "extraordinary". I'm fully aware this is not correct in light of the various rulings.
My query here is that I do intend to pursue this, but should I wait to lodge my claim with the Small Claims Court until after the ECJ issue their ruling?Given this was only a few months ago, I appreciate time-bar is not an issue.
It will be Scottish Courts so I know they won't take it forward now due to the "stay" at present.

Any thoughts/comments much appreciated.

ian41

jillsa wrote: »

My query here is that I do intend to pursue this, but should I wait to lodge my claim with the Small Claims Court until after the ECJ issue their ruling?Given this was only a few months ago, I appreciate time-bar is not an issue.
It will be Scottish Courts so I know they won't take it forward now due to the "stay" at present.

Any thoughts/comments much appreciated.

May I give you my thoughts in reverse order.

As you know, the Scottish legal system is separate from the English and Welsh legal system. There have been several cases of delay claims being stayed in English courts when claimants have proceeded to file their claims.

However, as Centipede100 and I discussed off-forum very recently, neither of us are aware of any case being stayed in Scotland. That does not mean that there has or hasn't been a "stay" but we are unaware of reports of any such case - and we both spend a great deal of time helping in 261/2004 matters.

If it was me, I would speak to at least two different Sheriffs Courts including my local Sheriff's Court where the case would be filed/heard and ask the specific question - is there a stay in Scotland (similar to England) or are you free to proceed as a pursuer with filing your claim now?

If you can, then there is nothing to stop you proceeding now if you wish. If not, suggest that you wait until we get the ECJ ruling just to ensure that the ruling comes down on the side of passengers. If you file early then your court fees could be wasted in the (unlikely) event that there is an adverse ruling.

Please do post back and let us know what was said when you speak to two of the Sheriffs Courts. If you wish to to review your arguments against Continental on forum, please post flight details and reasons/excuses put forward by them.

Hope that helps.

Chrishazle

Finally calmed down enough after a phone call from Lisa at Thomsons After Travel Customer Care late last Friday afternoon.

I sent 3 letters to Thomsons about problems with our flight home and a day trip we took.

Firstly, the 25 hour delay. She stated (on a number of occasions) that "by signing the booking, I had accepted Thomson's Terms and Condition, which includes a clause stating that Thomsons do not pay compensation for flight delays. You have to claim from your own travel insurance". Would not accept that an EU regulation was binding on Thomsons, just repeated "Thomsons do not pay compensation for flight delays, it's in our T&C's which you accepted when you signed the booking form". Maybe we should get Thomsons to brief David Cameron and Theresa May on how to tell the EU where to stick their rules!

Secondly, she claimed that Thomsons were actually going to refund 75% of the flight cost, but her calculations are interesting!!
We paid £420 to upgrade 2 passengers to premium economy. Her calcs are :
From the £420, deduct the £150 APD Thomsons have to pay to the government. Thus the upgrade cost is £270, or £135 each way.
The cost of the one way flight is £81, so add £162 for 2 passengers, total is now £297.
75% of £297 is £222.75, which is the cheque thay are planning to send to me.

Just for laughs, I looked online for flights to Punta Cana, and the cheapest I could find was BA at £557! I actually said to her that, if Thomsons can do a 9 hour transatlantic flight for £81pp, they make Ryanair look expensive!

She did not go into my complaint about the very poor service we had from their rep at the hotel they moved us to - where we spent about 5-6 hours hanging around waiting for a room to be allocated to us!

As for my complaint about the expensive day trip that was totally not as described (and in this country would give Trading Standards, Trade Descriptions Act and H&S At Work Act a field day!!) she said she could not see where what we received was not "as described"!! A Caribbean trip including schnorkeling where the schnorkeling site was the concrete piers of an abandoned jetty, covered in barnacles, and the trip supervisor insisted that swimmers tied their life jackets to their wrists using the waist band (and that's only part of the complaint)!!

By this time, having repeatedly said "put it in writing", my patience and temper ran out so I terminated the call. I await their written response with interest!

jillsa

Thanks for comments as above. I'll give the sheriff clerk at Edinburgh a call in the morning.

ian41

Chrishazle wrote: »

Would not accept that an EU regulation was binding on Thomsons, just repeated
"Thomsons do not pay compensation for flight delays, it's in our T&C's which you accepted when you signed the booking form".

A couple of quick answers. Thomsons (TUI to be exact) were one of the group of airlines behind the appeal against Sturgeon - hence the stay. It is not a surprise that they deny the existence of delay compensation because in their view, pending the ECJ ruling (see Centipede100's post above), they are not liable. Until the ruling is handed down, their position and this situation is not going to change. So you will need to repeat the letter once the ruling has been made - assuming it is in the passengers favour.

Secondly, she claimed that Thomsons were actually going to refund 75% of the flight cost, but her calculations are interesting!! We paid £420 to upgrade 2 passengers to premium economy. Her calcs are : From the £420, deduct the £150 APD Thomsons have to pay to the government. Thus the upgrade cost is £270, or £135 each way. The cost of the one way flight is £81, so add £162 for 2 passengers, total is now £297. 75% of £297 is £222.75, which is the cheque thay are planning to send to me.

Well that is one way to calculate it. You need to dig around - see the original brochure - or if Thomson have a separate Flights Only brochure check that out. Of course when you receive the letter you can dispute their calculation but in reality, you need to put a realistic alternative forward. Ideally, this needs to be based on documentation published elsewhere by Thomson. Remember that prices from BA and other scheduled airlines will be largely irrelevant.

She did not go into my complaint about the very poor service
(and)
the expensive day trip that was totally not as described.

And nor will I.

Suggest you keep the flight delay claim and seat downgrade claim (i.e. 261/2004 matters) and related correspondence totally separate from general complaints.

I await their written response with interest!

Yup - it will be interesting.