deux oiseaux STAY letter to the courts

Flightclaim

PLEASE FIND BELOW THE LETTER DEUX OISEAUX SENT TO THE COURTS;


We act for Jet2.com Limited. We refer to the order XXXXX pursuant to which Claim No.XXXXX is stayed. We are writing in relation to this claim and all of the others listed in the schedule to notify the Court of the position in relation to the Supreme Court's decision on permission to appeal in the case of Huzar v Jet2.com Limited [2014] 2 Lloyd's Rep 368. Please could you place a copy of this letter on the file of each of the claims listed and treat this letter as a request for a continuation of the stays in each of those cases.


Existing stay and the Huzar case.


1. The stay in this case was imposed because of the uncertainty over the legal question of whether technical defects can be extraordinary circumstances which exempt airlines from having to pay fixed compensation to each passenger of between €250 and €600 under Regulation 261 of 2004, regardless of the length of delay over 3hours, or the actual loss (if any) suffered by the passenger, or the cost of the ticket.


2. The position in relation to the Huzar case is as follows:

a.The District Judge in the Huzar case held that the technical problem in that case (a wiring defect) was an extraordinary circumstance. The Regulation itself says that extraordinary circumstances may occur in eases of "unexpected flight safety shortcomings". It is well established in the leading case of Wallentin-Hermann v Alitalia-Linee Aeree Italiane SpA C-579/07, [2009] Bus LR 1016 at paragraph 23, that technical defects may amount to extraordinary circumstances. This approach was also consistent with the prevailing view of UK Civil Aviation Authority and the other regulatory bodies which act as the national enforcement bodies

b. The District Judge's decision was overturned by a Circuit Judge but for reasons which the Court of Appeal subsequently set aside.

c. The Court of Appeal itself stated that it “accept[ed] that the issue is not without some difficulty”. It acknowledged that what it treated as the decisive European authority gave “no clear explanation” as to how the two limbs of the test interrelate, and that the CJEU’s slightly varying uses of language “compound[ ed] the uncertainty”:

"The Court of Luxembourg has defined the concept of "extraordinary circumstances” by reference to the two limbs; first, that the nature or origin of the event or events which cause the technical problem must not be inherent in the normal exercise of the activity of the carrier(limb 1); and second, that it should be beyond its actual control (limb2). There is no clear explanation as to how the two limbs interrelate. To compound the uncertainty, the Court uses slightly different language when seeking to encapsulate the concept, not only in different cases but even in the same case, as the contrasting language in paragraph 23 and the first ruling of Wallentin~Hermann demonstrate."

d. The Court of Appeal accepted that the language in that decision “is ambiguous and could be said to support the narrow concept of control for which [the airline] contends” and that it recognised that its own analysis “can be said to render the second limb redundant”. On the facts, the Court of Appeal held that the wiring defect did not constitute an extraordinary circumstance.

e. On 30 October 2014, the Supreme Court refused to grant Jet2.com Limited permission to appeal from the decision of the Court of Appeal handed down on 11 June 2014. This means that there can be no further appeal from the Court of Appeal's decision.


CJ EU reference — van der Lans v KLM


3.Similar issues have recently been made the subject of a reference by a court in Amsterdam to the Court of Justice of the European Union (CJEU) in the case of van der Lans v KLM. This reference was published in the Official Journal of the European Union on 8 September 2014. A copy of the reference is attached.

4.As is evident from the reference, the CJ EU has been asked to consider specifically a number of issues, including the matters which were the subject of the Huzar appeal.We will if necessary deal with this in submission but, for instance, it covers:

a. The relationship between the two limbs in Wallentin-Hermann.
b. The relationship between "unexpected fight safety shortcomings" and "extraordinary circumstances".
c. The meaning of "inherent in the normal exercise of an air carrier's activity".
d. Whether technical problems can be extraordinary circumstances.

5. This means that the CJEU will be specifically addressing the issues and will be giving clarification of the law in this acknowledged difficult area.


Continuation of stay

6. We therefore request that the court continues the stay of these proceedings until the outcome of the reference in van der Lans v KLM. In making this request we refer to the following matters:

a. The court has the power to stay proceedings pursuant to CPR r 3.1(2)(f).

b. We submit that it is normal and appropriate for the court to stay proceeding where an issue of law in the case has arisen in another case which is the subject of appeal. This is precisely the position which led to the stay pending the determination of the appeal in the Huzar case.

c. This is particularly the case where it is a reference to the CJEU which will clarify the proper interpretation of the Regulation, and will in the long run save court time and the parties‘ time and costs.

d. The CJ EU is the supreme tribunal for determining questions of European law and a stay will usually be appropriate where a reference is pending before the court (see the White Book Service 2014, volume 2, at p. 2822, citing Johns v Solent SD Ltd [2008] EWCA Civ 790).

e. There could well be significant and irremediable prejudice to the Defendant if these proceedings are not stayed. A judgment from the CJEU on the preliminary reference would be binding on the Court, yet, in the absence of astay, the Court would determine the issue without the benefit of the CJEU's ruling on the central issue of the case.

f. By contrast, the Claimant will not suffer any real prejudice. The nature of the"compensation" is such that it is not truly compensatory for a loss but is a fixed sum which amounts to an unexpected benefit. In any event, interest will continue to run on any damages to which the Claimant is entitled. At most the Claimant will suffer inconvenience.
We ask that this question of a continued stay be dealt with before any other further proceedings in this case and the others listed in the schedule. If the Court would prefer, we will issue a composite application in relation to the claims so that the matter can be dealt with orally.

111KAB

This is ridiculous and surely Jet2 have got to give up at some stage. I just hope the UK judicial system takes them to task and ensures every claim in every court is granted in favour of the claimant.

dino25uk

"The nature of the"compensation" is such that it is not truly compensatory for a loss but is a fixed sum which amounts to an unexpected benefit. In any event, interest will continue to run on any damages to which the Claimant is entitled. At most the Claimant will suffer inconvenience. "
I find this a really arrogant comment. An unexpected benefit..... Really. An unexpected benefit would have been to get me to my destination on time so that I did not lose a day of my holiday???? And we have all suffered inconvenience already, spending unwanted time in an airport. Muppets!!!!!

Caz3121

I have not flown with Jet2 since our delay 4 years ago. Sat on a hot and sticky plane for over 4 hours whilst they tried to fix it after an aborted takeoff....then repeated on 2 other occasions before eventually taking off.
No apology, no food left after they covered the first rows after takeoff.
The way they have responded to the EU regulations is disgraceful and they will not get my £s again...I would rather fly indirect than book with them

JPears

Arrogant gits......

dxc_chappie

So I guess deux oiseaux will be lobbying for Article 7 of EU261 to be re-written as "Right to unexpected benefit"...?

gallagher973

I have had a letter from Liverpool county court, staying my flight delay case with Thomas Cook. It had previously been stayed awaiting outcome of the Huzar case.. Now with that going in my favour they have now scoured Europe looking for another case to get a stay.

I have today written a letter to judge Smedley begging for him to reconsider as the law is now law within the UK has anyone else had the same issues?? my letter:

Dear your Honour, Judge Smedley

Please find enclosed an appeal to your order dated 12th of January 2015. For my case number 3QZ29097 in respect of Paul Gallagher V Thomas Cook Airlines, which I beg you to reconsider. A copy of the stay order is enclosed.
__________________________________________________ ________________
OBJECTION TO APPLICATION NOTICE BY THE DEFENDANT
__________________________________________________ ________________
I the claimant make the following objection and appeal my case being further stayed for the following reasons:

1. It is accepted that the Defendant is denying compensation due to the fact that the Defendant is claiming an ‘extraordinary circumstance’ lead to the delay of flight TCX3018
2. It is accepted that an appeal was heard in the Manchester County Court before His Honour District Judge Platts (Case number: 2YN76991, Appeal ref: M13X134) between Ronald Huzar the Claimant and Appellant and Jet2.com the Defendant and the Respondent.
3. In November 2013 the Defendant stated that ‘the Court of Appeal can be expected to bring much-needed clarification to the proper interpretation of Article 5(3) of the Regulation.
4. The Court of Appeal has now heard the case and the airline was formally denied leave to appeal.
5. The Defendant refused to accept the decision of the Court of Appeal and subsequently appealed to the Supreme Court for permission to Appeal the Court of Appeals decision. This application was formerly denied on the 31st October 2014 for the following reason :’ The substantive text of the Supreme Court's Order reads as follows:
‘The Court ordered that permission to appeal be refused in Thomson because the application does not raise an arguable point of law; [and] permission to appeal be refused in Jet2.com because the application does not raise a point of law of general public importance and, in relation to the point of European Union law said to be raised by or in response to the application, it is not necessary to request the Court of Justice to give any ruling, because the Court's existing jurisprudence already provides sufficient answer.
6. It is my submission that the Defendant has now found a local Court case in Amsterdam, which in my opinion has no relevance whatsoever in UK Law, The Supreme Court has ruled on the decision, the Supreme Court’s decision should be final and be upheld as such. The EU directive 261/2004 is for member states to decide via the law of the land of that state, and to be interpreted as such, no other country, cannot be overruled by any other pending case in some other country.


7. The UK Civil Aviation Authority issued this press release on the 31st October 2014.
Andrew Haines, Chief Executive of the CAA, said:
“…. the court’s decisions in these cases bring legal clarity to this issue and we now expect airlines to abide by them when considering claims.

This is also important information for anyone who has made a claim for flight delay compensation but is waiting for a decision pending the outcome from Supreme Court. Following the decisions in these two cases, airlines should not continue to put claims on hold. Where airlines have already put claims on hold, the CAA expects airlines to revisit them and pay compensation for any eligible claims.”
8. I believe that the Defendant is acting entirely unreasonably and should now accept the decision of the Court Of Appeal that ruled on the Huzar case, the Supreme Court and the UK Civil Aviation Authority.
9. The Supreme Court also rejected and considered the C.van der Lans V KLM case (C-257/14) and rejected it as being irrelevant. Also European law states that a court decision in one member state is final and just to that state, how can my claim be stayed on the onus of a lesser court in another member state, when the highest Court in the United Kingdom has already made law of this issue? May I respectfully state that “Justice delayed is Justice denied”. Please consider below points also:.

1. It is understood from comments made by Mr Huzar's lawyers, Bott & Co, that reference was made to Van der Lans in the submissions provided to the UK Supreme Court but the Court considered it to be irrelevant. It is also interesting to note that Dutch Courts aren't staying cases pending Van der Lans.
2. The law is already clear from existing settled EU jurisprudence and has been clarified in a comprehensive judgement by the Court of Appeal in Jet2.com Limited v Huzar [2014] EWCA Civ 791.
3. Justice delayed is justice denied. it is a matter of right to either party to insist upon the case going on and the onus is on the party who wishes to stop the case. To stay a case is a serious interference with the orderly progress of procedure.
4. Johns v Solent SD Ltd can be readily distinguished because the preliminary reference made in this case related to law which was unsettled (with no leading case such as Wallentin-Hermann). Moreover an Advocate's Opinion had been received by the European Court of Justice (Van der Lans has not even reached that stage yet). A key issue in Johns was that Claimants' cases would be snuffed out if the case was stayed which would give rise to real prejudice which is plainly not the case with the airlines.
5. Claimants will suffer real prejudice; they could be waiting years for a judgement. The compensation is not an unexpected benefit; it is a right that has been expressly given to passengers by the EU to compensate them for the inconvenience suffered in consequence of delay. .



I trust this to be in order and expect that due to these facts the case will now be unstayed and an order granted in my favour. That the defendant be ordered to pay my compensation as in line with UK law, I have also forwarded a copy of this letter to the defendant. .


Yours sincerely



Paul C Gallagher
Enc

Vauban

Paul: Can you post the Order from Judge Smedley? Did you write originally opposing the stay, before you received the Order?

DrA_Harrogate

Vauban wrote: »

Paul: Can you post the Order from Judge Smedley? Did you write originally opposing the stay, before you received the Order?

I received a 'stay' letter from Harrogate Court. The relevant bit states ""Upon the Defendant having issued a formal application in the County Court of Liverpool to stay....pending the outcome of...van der Lans" and so forth.


Seems clear that 'my' Court will jump the same way as the clutch of Liverpool claims..


AS

Vauban

A "stay" until the Liverpool hearing is entirely reasonable (though I don't understand why a County Court gets to lead for all the rest); a stay until VDL is resolved would not be!

Skid_Marks

Vauban wrote: »

A "stay" until the Liverpool hearing is entirely reasonable (though I don't understand why a County Court gets to lead for all the rest); a stay until VDL is resolved would not be!

I too am puzzled as to why one County Court I.e. Liverpool gets to lead for all the rest.......or will it?

The flight delay claims discussed on this forum have highlighted a major weakness in the County Court process which needs to be addressed.

What will be the situation, for example, after tomorrow if Eudelay wins/loses its case against Jet2 at Mansfield County Court on the very issue of VDL?