MSE News: Flight delay compensation: Know your rights after Thomson defeated in court

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  • edited 11 October 2013 at 9:53PM
    DTDfanBoyDTDfanBoy Forumite
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    edited 11 October 2013 at 9:53PM
    There certainly are which is why I stated "There is reasonably strict protocol in regards to allowing an appeal, so you can be sure that there is a valid legal question to be answered."

    As we now have a hearing date, and Thomson are requesting that cases are stayed pending outcome, I think it's safe to assume that their application to appeal has been allowed :eek:

    You can request an appeal because your dog ate your homework if you wish, but an appeal will only be allowed on a point of law.

    Given that Thomsons appeal is proceeding there must be a valid legal question to be answered.
  • I have just won a judgement against Small Planet airlines this week as they were a no show in court and I have another hearing on the 23rd October with Thomsons this time. This is for a 8 hour delay to Dom Rep in 2008. I have received a copy of a letter which I posted on MSE last week from Thomsons to the District Judge requesting a stay until the Dawson v Thomson appeal gets heard. They decided to drop the Extraordinary Circumstance defence "based on a commercial decision" but are hanging on to th 2year thing (by fingernails me thinks) I received some good advice on MSE which I have decided to take up which was to write to the District Judge requesting that the case go ahead as planned but to stay any financial payment (should I be successful) until the Dawson case has been heard. This is to save court time at a latter date. I am still waiting to hear and btw the deadline for any disclosure of defence as passed on the 9th October and I have not heard from Thomsons although I did file my papers in accordance with the earlier court directions. I have to say that the help I have received from MSE has been invaluable.
  • JPearsJPears Forumite
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    emptysuit wrote: »
    I have just won a judgement against Small Planet airlines this week as they were a no show in court and I have another hearing on the 23rd October with Thomsons this time. This is for a 8 hour delay to Dom Rep in 2008. I have received a copy of a letter which I posted on MSE last week from Thomsons to the District Judge requesting a stay until the Dawson v Thomson appeal gets heard. They decided to drop the Extraordinary Circumstance defence "based on a commercial decision" but are hanging on to th 2year thing (by fingernails me thinks) I received some good advice on MSE which I have decided to take up which was to write to the District Judge requesting that the case go ahead as planned but to stay any financial payment (should I be successful) until the Dawson case has been heard. This is to save court time at a latter date. I am still waiting to hear and btw the deadline for any disclosure of defence as passed on the 9th October and I have not heard from Thomsons although I did file my papers in accordance with the earlier court directions. I have to say that the help I have received from MSE has been invaluable.
    But surely if their only defence is the 2 year rubbish then why would that waste court time? All you have to do is wait until the appeal is heard, and most likely lost and you have won ?
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  • JPearsJPears Forumite
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    DTDfanBoy wrote: »
    There certainly are which is why I stated "There is reasonably strict protocol in regards to allowing an appeal, so you can be sure that there is a valid legal question to be answered."

    As we now have a hearing date, and Thomson are requesting that cases are stayed pending outcome, I think it's safe to assume that their application to appeal has been allowed :eek:

    You can request an appeal because your dog ate your homework if you wish, but an appeal will only be allowed on a point of law.

    Given that Thomsons appeal is proceeding there must be a valid legal question to be answered.
    Agreed. And like you say, it would be interesting to what grounds they are appealing.
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  • edited 11 October 2013 at 10:41PM
    DTDfanBoyDTDfanBoy Forumite
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    edited 11 October 2013 at 10:41PM
    emptysuit you can't be certain that Thomson have dropped the EC routine from their defence until it has actually been submitted ;)

    If their defence is only based on the 2 year limit, congratulations the hard work is over :beer:

    What interest rate have you claimed, if it was the 8%, which has been bandied about a few times on here, I'd be tempted to agree to the stay.

    If/when Thomson lose the Dawson appeal they would be mad not to not settle out of court if their only defence was the two year limit, I can't see a Judge looking too favourably on anyone turning up with no defence merely to dispute interest rates :rotfl:
  • edited 11 October 2013 at 11:31PM
    DTDfanBoyDTDfanBoy Forumite
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    edited 11 October 2013 at 11:31PM
    JPears wrote: »
    Agreed. And like you say, it would be interesting to what grounds they are appealing.

    I'm very keen to see what they've come up with.

    My money is on a BS appeal initiated simply to save them money, they seem hell bent on making things as difficult as possible for passengers, I don't recall a single instance being reported on here where they have actually paid before legal action was taken.

    I'm sure that they've got a reasonable idea as to how many people never returned to legal action after having their hearings stayed by Sturgeon, it wouldn't surprise me in the least if this appeal was simply a commercial decision designed to limit losses.

    If you can stay 500 cases and only 80% of those claimants return after the Dawson judgement, that's probably saved you £150,000+

    I can't see them spending £150,000 on Dawson in a big hurry, in fact I'd imagine that there would probably be plenty of change left out of £50,000 for that one.

    The problem with the implementation of this regulation is that there are no real consequences for the airlines that choose to ignore it.

    The regulation states :

    3. The sanctions laid down by Member States for infringements

    of this Regulation shall be effective, proportionate and

    dissuasive.



    But despite this there is nothing in the UK that has been put in place to stop the airlines simply ignoring their obligations until they are ordered to fulfil them by a Judge.

    If they were fined an amount equal to the compensation they were due to pay but had withheld you can guarantee they would be bending over backwards to comply.

    Until there are some very real implications for ignoring passenger rights they will continue to ignore them, simply because as things stand at present it makes great commercial sense to do so.
  • JPears wrote: »
    Agreed. And like you say, it would be interesting to what grounds they are appealing.

    Thomson's grounds for appeal in the Dawson case are based on the following:
    1) Section 3 of the EU Communities Act 1972 requires the English courts to follow the ruling of CJEU but not the reasoning.
    2) Where the reasoning of the CJEU is inconsistent with English law then English law must be used.
    3) The More ruling is that time limits in English law must be used for determining limits and is not bound by the reasoning that claims are outside Montreal Convention.
    4) More reasoning is inconsistent with English law provided by ruling in Sidhu v BA in that claims for delay are set by MC incorporated into English law by section 1 of international carriage by air act 1961.
    5) English law set by Sidhu v BA means MC must be used therefore 2 yr limit applies.
    6) Claim is for delay in the course of international carriage by air therefore MC and 2 yr limit applies.

    Specious to say the least, especially considering Sidhu was several years before EC261 was introduced, and validity of reg 261 has already been challenged by TUI and others in IATA and Nelson .

    I got the same letter from T requesting a stay pending outcome of Dawson appeal. I'll try to OCR the full grounds doc and post tomorrow.
  • VaubanVauban Forumite
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    That's very interesting.

    I had a brief exchange about this with a barrister acquaintance, whose view was that this argument was unlikely to prevail. He thought 261/04 had done enough to distinguish itself from the MC - reinforced by More - that the basic argument wouldn't stick (though he added some of his colleagues were convinced it would).

    He did say, though, that he thought that airlines' terms and conditions might create a similar outcome - ie a restriction of two years. But surely, I said, T&cs cannot trump the statute of limitation? Ah,meh said: but in matters of contract law, the statute says something along the lines of the period in which disputes can be raised shall be six years or whatever period is agreed between the parties. So when you tick that "I have read" box ...

    Of course, this issue will eventually disappear as a legal issue in due course. It is a temporary legacy of the legal hiatus caused by Sturgeon et al, and the low consumer awareness.
  • Full Dawson case grounds of appeal:

    DAWSON v. THOMSON AIRWAYS LTD

    GROUNDS OF APPEAL (RL v2)

    The learned Judge erred in law in holding:

    1) that he was bound by s.3 of the European Communities Act 1972 as amended ("the 1972 Act) to follow the principle laid down in paragraph 28 of the judgment of Court of Justice of the European Union ("CJEU") in More v. Koninklijke Luchtvaart Maatschappij NV Case C-139/11 ("More"), that a claim for compensation under article 7 of Regulation 261 for a qualifying long delay is outside the scope of the Montreal Convention 1999, and its spirit, when determining the time-limit applicable to a claim for compensation under article 7 of EC Regulation 261/2004 ("Regulation 261") as a matter of English domestic law;

    2) that accordingly as a matter of English domestic law the time-limit applicable a claim for compensation under article 7 of Regulation 261 for a qualifying long delay is 6 years by reason of s.9 of Limitation Act 1980; and

    3) that it follows that the Claimant's claim succeeds.


    The Judge further erred in law in failing to hold, and should have held, that:

    1. Section 3 of the 1972 Act binds an English court to follow the ruling of the CJEU in respect of the validity, meaning or effect of an EU instrument, but does not require it to follow the reasoning of the CJEU in respect of its ruling, especially where, as here, the English court is considering a question of English domestic law.

    2. Where the reasoning of the CJEU on a given point is inconsistent with that of a prior decision of the House of Lords/Supreme Court then an English court below that level must follow the latter not the former, especially where, as here, it is considering a question of English domestic law.

    3. An English court is bound by the CJEU's ruling in More, namely that the time-limit For bringing an action for compensation under article 7 of Regulation 261 is to be determined in accordance with the rules of the domestic law of each member State, However, it is not bound by the CJEU's reasoning in More or the case of Nelson v. Deutsche Lufthansa AG and the Queen (on the application of Tui Travel Plc and others) v. Civil Aviation Authority Joined Cases C-581/10 and C-629/10 ("Nelson") to which More refers at its paragraph 28. i.e. that a claim lor compensation under article 7 of Regulation 261 for a qualifying long delay is outside the scope of the Montreal Convention 1999.

    4. The reasoning of the CJEU in More/Nelson that a claim for compensation under article 7 of Regulation 261 for a qualifying long delay is outside the scope of the Montreal Convention 1999 (and therefore not subject to the time-limit set by its article 35), is inconsistent with the answer according to English domestic law as to the scope of that Convention provided by Sidhu v. British Airways Plc [1997] AC 430 and its progeny. According to Sidhu and the authorities following it:

    (1) as a matter of English domestic law, the time-limit applicable to a claim made by a passenger against a carrier in respect of delay in the course of international carriage by air is that set by the Montreal Convention 1999 (which is incorporated into English law and given the force thereof by reason of s.1 of the Carriage by Air Act 1961 as amended, and as Schedule 1B to that Act, and by article 3 (1) of Regulation (EC) No.2027/97 as amended by Regulation (EC) No.889/2002), namely any such claim must be brought within a period of 2 years from date of arrival at the destination; and

    (2) where, as here, the Claimant's claim for compensation under article 7 of Regulation 261 is in respect of qualifying long delay in international carriage, it is in respect of delay in the course of international carriage by air and so within the scope of the Montreal Convention, because it falls within the timeline and space governed by that Convention.

    5. As a matter of English domestic law, the answer according to Sidhu and the authorities following it as to the scope of the Montreal Convention is to be preferred to the reasoning of the CJEU on that point, and should be followed by the English courts for the purposes of determining the time-limit within which such a claim for compensation under article 7 of Regulation 261 for a qualifying long delay must be brought as a matter of English domestic law. The time-limit for such a claim is therefore 2 years from the date of arrival at destination, as provided by article 35 of the Montreal Convention.

    6. The Claimant's claim is one made by a passenger against a carrier in respect of delay in the course of international carriage by air and is therefore within the scope of the Montreal Convention, but was brought outside the time-limit provided by article 35 of that Convention. It therefore does not disclose a reasonable cause of action and/or is an abuse of the court's process, and his claim fails accordingly.
  • Mark2sparkMark2spark Forumite
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    Cleverly worded so that the references to Montreal claims relating to damages have been omitted, whereas the EU261 monies strictly relate to an inconvinience payment, which is the key to what takes it outside, and before, the Montreal Convention.


    IMO :)
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