Technical get out clause being used

iandv

On reading articles on which and on the MSE site our flight was delayed by a technical fault by Thomas Cook keep saying that it is extraordinary. As I have mentioned previously they had to send a new plane from another UK airport as they could not fix the plane we were due to leave on

What my question is and I know that this may be asked many times but I have scoured this forum the FAQ's etc and am looking for clarification.

The only technical problem that an airline from what I have read can get out of a claim is if according to MSE, but how would you know?

Technical problems caused by the plane manufacturer (eg, Airbus, Boeing)

However this would only be relevant if Boeing/Airbus grounded the entire fleet of the specific type of aircraft you were flying on, which was not the case.

The following quotes below are 2 replies back to us both rejecting the claim. If they keep saying the two responses below to us, and before you go down the court route etc is it worth asking them what the actual problem was and could they provide technical reports/repair reports or just reply back with

"The frequency of the technical problems experienced by an air carrier is not in itself a factor from which it is possible to conclude the presence or absence of ‘extraordinary circumstances’ " (Wallentin)

This investigation included analysis of historical maintenance data, discussions with engineers, and a review of the activity of our other aircraft at the time. Following this thorough process we remain confident that the technical fault was extraordinary and that we took all reasonable measures possible to avoid the delay in question.

I appreciate you remain unhappy with this decision, and whilst I regret this, we do not believe that a payment under the rules of the scheme is relevant in this particular case.

Should you remain unhappy you can contact the Civil Aviation Authority (CAA) online at https://www.caa.co.uk/passenger or call the CAA for advice on 020 7453 6888.

Having carried out a full investigation the specific circumstances surrounding the delay to your own flight were of a technical nature. These were extraordinary, in that Thomas Cook took all reasonable precautions necessary to avoid the situation, and despite our proactive measures the problem could not have been prevented. All our aircraft are maintained to a very high standard, in line with CAA regulations, however, despite these steps, mechanical failures can arise without prior warning. These unpredictable events can be likened to those we encounter with our own cars, despite having full service histories, or MOT’s.

Vauban

I don't understand what you are asking. Unless it is "are technical problems extraordinary", which is something of a $64,000 question is it not?

iandv

Hi

What I am saying is are there any extraordinary circumstances that a technical problem could be classed as, apart from what I mentioned above with if it was a fleet level problem caused by a part from airbus / boeing

Vauban

This question is (practically) the whole issue around which the flight compensation matter revolves. So if there was an easy and definitive answer, none of us would be here.

Wallentin suggests technical problems should rarely be considered extraordinary - and that was also the view of circuit judge Platt this week. But persuading an airline of this - or a district judge - is less easy.

iandv

Hi

Thanks do you have what circuit Judge Platt said this week.

Going to the CAA is a waste of time from what I have been reading.

I don't really fancy going to court on my own, are there any recommendations of no win no fee firms who do the final stage of legal work for you?

David_e

iandv wrote: »

Thanks do you have what circuit Judge Platt said this week.

Not sure the full judgement is available yet; I've only seen the lawyers report and the Independent article. Someone (sorry can't remember who) said that as it's county court, it sets no precedent so, while it will be useful to see what the judgement says, it doesn't bind other courts.

Regarding your original point, if you haven't already, print out the Wallentin ruling and isolate the relevant words with a highlighter to make it easier to see the relevant words. I did that and it does lead to the conclusion that pretty well any technical issue should be regarded as EC. Of course the problem then seems to be that some judges are not, in my view, applying the law correctly.

TC's statement "These were extraordinary, in that Thomas Cook took all reasonable precautions necessary to avoid the situation, and despite our proactive measures the problem could not have been prevented" is nonsense; it does not reflect correctly what the Wallentin ruling says about what EC means.

iandv

Hi David

Does this reply read ok?

In response to your reply

"These were extraordinary, in that Thomas Cook took all reasonable precautions necessary to avoid the situation, and despite our proactive measures the problem could not have been prevented"


This does not reflect correctly what the Wallentin-Hermann judgement says about what extraordinary circumstances means as technical issues should not be regarded as an extraordinary circumstance unless it was a recall from Boeing / Airbus that forces the entire fleet of aircraft to be grounded until the technical issue is resolved.

"The frequency of the technical problems experienced by an air carrier is not in itself a factor from which it is possible to conclude the presence or absence of ‘extraordinary circumstances’ " (Wallentin)

Please could you provide

1. Provide proof of the circumstances alleged;
2. Clearly demonstrate how these circumstances resulted in the flight disruption;
3. Explain what reasonable measures it took to subsequently avoid the disruption.

Vauban

There's nothing wrong with this letter, but what do you think it will achieve - aside from a wasted stamp?

David_e

iandv wrote: »

Hi David

Does this reply read ok?

In response to your reply

"These were extraordinary, in that Thomas Cook took all reasonable precautions necessary to avoid the situation, and despite our proactive measures the problem could not have been prevented"


This does not reflect correctly what the Wallentin-Hermann judgement says about what extraordinary circumstances means as technical issues should not be regarded as an extraordinary circumstance unless it was a recall from Boeing / Airbus that forces the entire fleet of aircraft to be grounded until the technical issue is resolved.

"The frequency of the technical problems experienced by an air carrier is not in itself a factor from which it is possible to conclude the presence or absence of ‘extraordinary circumstances’ " (Wallentin)

Please could you provide

1. Provide proof of the circumstances alleged;
2. Clearly demonstrate how these circumstances resulted in the flight disruption;
3. Explain what reasonable measures it took to subsequently avoid the disruption.

Vauban makes the very valid point that a letter is highly unlikely to advance your claim. However, I don't think it's unreasonable to see if you can drag further information from them. It is likely that nothing will hang on it but if you have sought to deal with the matter without resort to the courts, that ought to get you some brownie points. I've set out below what I might put but I'm not a lawyer and you must be happy with whatever words that you decide to use. (As I noted previously, it really is worth going through Wallentin with a fine tooth comb and isolating the key words and concepts.)

Para 34 of Wallentin (my emphasis) says:

"... a technical problem … is not … ‘extraordinary circumstances’ ... unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control".

Bearing that in mind, how about:

In your letter you said:

"These were extraordinary, in that Thomas Cook took all reasonable precautions necessary to avoid the situation, and despite our proactive measures the problem could not have been prevented"

[FONT=&quot]As you will be aware, the Wallentin-Hermann judgement requires consideration of the events that gave rise to the technical issue - not just the problem itself. If the events are inherent in the operation of the airline (for example, wear and tear or unexpected component failure), then the technical issue does not constitute extraordinary circumstances, irrespective of any precautions or proactive measures that may have been taken. Perhaps you could describe the events that resulted in the technical problem and explain why you regard those events as being unrelated to the airline’s normal activities.

[/FONT][FONT=&quot]See also this from Coby Benson:[/FONT][FONT=&quot]

http://forums.moneysavingexpert.com/showpost.php?p=63592484&postcount=926

[/FONT]

Tupence

I am also attempting to claim from Thomas Cook for a flight delay of just under 4 hrs from Florida to Manchester in June this year.
I used the MSE template letter in the first instance and have had a reply from TC similar to the one posted by iandv saying the issue was of a technical nature, and they were extraordinary. the quoted paragraph is word for word

"Having carried out a full investigation the specific circumstances surrounding the delay to your own flight were of a technical nature. These were extraordinary, in that Thomas Cook took all reasonable precautions necessary to avoid the situation, and despite our proactive measures the problem could not have been prevented. All our aircraft are maintained to a very high standard, in line with CAA regulations, however, despite these steps, mechanical failures can arise without prior warning. These unpredictable events can be likened to those we encounter with our own cars, despite having full service histories, or MOT’s"

This must be a standard letter sent out when they have someone claim for compensation.
I would be interested for any further information that could help with our claim, and am very grateful for the info posted so far.

Am I right in thinking that TC claiming the issue was of a technical nature is NOT a valid reason for turning down our claim, they are just trying to fob us off?

bustyg

Please can someone help me out.
Recently I applied to Jet2.com for compensation for a delayed flight of 18hrs,today I received a letter stating it was extraordinary circumstances so no payout. The cause of the delay was 2 things, the ground crew damaged the door after bringing a disabled passenger on board then after fixing it they found a fuel leak, can a fuel leak be classed as extraordinary circumstances?