Compensation for delayed flights Discussion Area

peregrine65

I am just posting to to let you know of the outcome of a recent battle I had with Thomas Cook. After out flight in the summer from Manchester to Greece was so late (over 3 hours) and the TC staff were so unhelpful about it all I eventually wrote a letter of complaint.

I didn’t get a response so got even more irritated and came across the EC Regulation 261/2004 on this website ….

I sent the attached letter to TC. Again no response within 28 days so I followed it up and again no reply. Even more irritated now I posted a message on the TC Facebook page warning anyone about booking with them as their complaints procedure was useless. I had a response within an hour and after a few more e mails I got a response within a week and they have paid up fully - £1300 for the 4 of us.

I have never claimed compensation before but the service was so awful i feel they will never change unless it becomes financially easier for them to run a service on time than to pay up for being late. They did offer me voucher for booking a holiday next year with TC but I declined and took the cash!

click6363

Hi All,
I was wondering if anyone had any experience or comments on how to deal with wizzair's standard template response. I was recently delayed 7 hours on a flight from UK-POL due to two separate technical faults with the aircraft. After filling out a complaint on their website I received the response below (I have removed some text as it's the same as everyone elses who posted here)

Regarding your request for compensation, please consider that Wizz Air as operating air carrier shall not be obliged to pay compensation, if cancellation or long delay is caused by extraordinary circumstances according to Art. 5. par. (3) of Regulation (EC) No 261/2004 of the European Parliament and of the council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.



Originally Art.5. par. (3) of the Regulation applies to flight cancellations but the European Court of Justice in its judgments concerning compensations for long delays of flights extended the application of Art.5. par. (3), stating that the airline shall not pay compensation for long delays, if the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

(the most recent relevant judgment of the court was delivered on 23th October 2012 in joined cases C-581/10 and C-629/10.)

111KAB

"I have removed some text as it's the same as everyone elses who posted here" ..... and as most other people have been informed a technical problem is not an extraordinary circumstance - it is a common occurrence although the Huzar -v- Jet2 possible Supreme Court appeal (if permitted) may further clarify this so read the Huzar thread for further help.

austin9658

click6363 wrote: »

Hi All,
I was wondering if anyone had any experience or comments on how to deal with wizzair's standard template response. I was recently delayed 7 hours on a flight from UK-POL due to two separate technical faults with the aircraft. After filling out a complaint on their website I received the response below (I have removed some text as it's the same as everyone elses who posted here)

It is still not cleared that technical fault comes under "Extraordinary Circumstance". There is a running case on technical fault, huzar vs jet2.com which is to be heard in supreme court (if permitted) in November. so it is suggested to you to read the huzar vs jet2.com thread.

skippy081

Hi Click6363, I got the exact same responce from Wizzair about 2 weeks ago about a flight delayed from Luton to Warsaw and replied saying that a technical problem with the plane is not "extraordinary circumstances" and they took long time to bring in another plane from Hungary. I am awaiting a reply to see what happens.


But as others have suggested there is a court case running to clarify what comes under Extraordinary Circumstances".

ian_h

Hoping someone can help with some advice.

I arrived late at my final destination on a flight in October 2012, I went through all the complaint, involving CAA etc who agreed I have a valid claim.

Eventually after the airline ignoring the CAA and my follow up correspondence I went through the legal process, starting action in December 2013 (14 months after the flight - this will become relevant shortly).

The airline submitted a defence and there is no denial that the timings are correct as stated in our claim.

They tickets etc were bought in the UK and the flight originated from the UK however the case was heard on paper last and the judge ruled the case be dismissed.

The judgement in summary is:

The defendant argues that the claim is statute barred on the basis that the applicable law in respect of the contract between the parties is provided for in their conditions of carriage as Belgian Law. The E Ticket travel receipt provided by the defendant to the claimants clearly refers to the applicable law and conditions of carriage. The applicable law therefore in respect of the contract was Belgian Law, The defendant states that the limitation period in which a claim must be brought arising from a contract of carriage passengers is one year………The action of the claimants is time barred by virtue of Belgian law and is dismissed.

As the hearing was on Paper we can appeal/apply for the judgement to be set aside.

Any advice on next steps / avenues to investigate would be very welcome.

JPears

Firstly, there is good case law that states any terms and conditions laid down by the airline cannot overide or void your rights under european consumer laws. I don't know the specific case law but others will be along shortly who do.
Secondly, which airline was it?

ian_h

Thanks for the reply it was Brussels Airlines and I was hoping EU261 trumped the contract law :beer:

Vauban

ian_h wrote: »

Thanks for the reply it was Brussels Airlines and I was hoping EU261 trumped the contract law :beer:

I think this is slightly tricky, and you would be wise perhaps to solicit some legal advice - or at least check the following with those of a lawyerly inclination.

The question of which national court has jurisdiction over a 261/04 claim was determined in an ECJ ruling in 2009 (Rehder v Air Baltic). You can find that judgement here:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?isOldUri=true&uri=CELEX:62008CJ0204

And a slightly more accessible explanation of this is provided by the European Consumer Centre here:

http://www.eccbelgium.be/which-court-has-jurisdiction-for-a-cancelled-flight-s51231.htm

The essence of the point is as follows:

In summary, it appears from the ECJ’s ruling that the applicant can choose to summon the air carrier to appear before the court in the place of departure or place of arrival of the aircraft, if his claim is based on a contract of carriage from one Member State to another with one sole airline which is the operating carrier and which is based on Regulation 261/2004. Moreover, the applicant retains the possibility of summoning the air carrier before the court where it has its registered office, central administration or principal place of business.

Presumably the argument you will need to deal with is that you voluntarily and explicitly agreed, as part of the conditions of carriage, that any claims should be dealt with by Belgian law. You would therefore need to rely on Article 15(1) of Regulation 261/04, which states that

Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.

Whether an explicit determination of national jurisdiction in the contract of carriage can be said to limit the obligations to the passenger under the Regulation is less clear to me however.

It depends, I suspect, on whether as a matter of binding European Law (Rehder v Air Baltic) the passenger has the legal right to choose the jurisdiction for any 261/04 claim they bring against an airline.

And as I am out of my depth, I don't really know the answer to that. Perhaps others more informed will.

jenser

Hi....I have recently been on holiday with Thomas Cook and was delayed by 6 hours. It was due to a plane being taken out of action and we had to have one transferred from another airport.
I complained and quoted the correct regulation and they replied with:
'We are writing in response to your most recent letter following your flight with Thomas Cook Airlines.

Firstly, we would like to extend our sincere apologies for the delay you experienced on your flight. Please be assured On Time Performance is a key measure for us, and we do work extremely hard to get our customers to their destination on time, and in the vast majority of cases this does happen. We do, however, regret the impact to your travel plans on this occasion.

We have carried out an investigation as to the cause of delay that you experienced and can confirm that this was due to a technical fault which was not inherent in the normal course of activity. A recent court case, Huzar vs Jet2, has been heard in the court of appeal, which has resulted in a change to how EC 261/2004 is interpreted, which is the regulation that supports governance on compensation payments for flight delays. The decision of this case is due to be appealed at the Supreme Court by Jet2.com in the near future, which may result in a further change to the interpretation of regulations.

In view of this, Thomas Cook will be deferring a review of your case until such time as further clarification is received on the EC 261/2004 Regulations . We will continue to monitor any developments, and we will ensure an updated message is posted on our website with regard to our revised position following the outcome of the appeal. You will be required to re-approach us once the appeal has been heard and your case will then be reviewed against the appropriate guidelines.

Once again please accept our apologies for the delay to your flight, and I hope the above explains why we are unable to review your case at the present moment in time.'



Is this correct??? and what do I do from here???
Thanks
Jenny