Two year time-bar

TwoTimer

This seems to be a hot topic at the moment and an area where the airlines are going to concentrate their efforts for the next round of delaying tactics.

There have been many people saying that they have been getting the two year time-bar brush off from several airlines so I've started a self-help thread where we can discus the merits of the various arguments against this limitation.

I have added a few things to get the thread going. I don't claim credit for all of them. Please comment, add your own thoughts, and please add your own arguments.

It may be of interest to some forum members who are thinking of taking legal action and who are worried about this stance from the airlines that there is an appeal case at the end of March which will hopefully add some clarity to this issue.

TwoTimer

Were the T&Cs supplied as link to an internet page or by a hard copy with the booking confirmation. According to The Consumer Protection (Distance Selling) Regulations 2000, Regulation 8, contract terms should be supplied on a "durable medium", and ECJ ruling C‑49/11 states that providing a link to the relevant information on a website is not a durable medium for the purposes of the Distance Selling Directive and gives two reasons:
a. That a consumer must “receive” the relevant information, which should not involve any positive action by the consumer; such receipt is not achieved by the consumer having to undertake the action of clicking on a link.
b. A website is not a “durable medium” as it (i) does not allow the consumer to store information addressed personally to the consumer, (ii) can be altered, (iii) is not necessarily accessible for an adequate period taking into account the purposes for providing that information, and (iv) does not allow the consumer to reproduce the information unchanged.
ECJ ruling C‑49/11 Article 5(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts must be interpreted as meaning that a business practice consisting of making the information referred to in that provision accessible to the consumer only via a hyperlink on a website of the undertaking concerned does not meet the requirements of that provision, since that information is neither ‘given’ by that undertaking nor ‘received’ by the consumer, within the meaning of that provision, and a website such as that at issue in the main proceedings cannot be regarded as a ‘durable medium’ within the meaning of Article 5(1).

TwoTimer

Do the T&Cs state that the time-bar applies to bringing an action for "damages" rather than specifically for "compensation" for a flight delay? In Vergara v Ryanair Limited at appeal level in the Scottish court this was argued successfully against Ryanair.

TwoTimer

Are the T&Cs from the date of the booking different from the T&Cs today on the airline's website. If they have changed to include the term "compensation" where before it did not appear, it indicates that the airline is aware of the limitations of the Terms and Conditions relied upon for the time-bar. If it is the airline's claim that damages and compensation are the same, they would not have been compelled to amend the Terms and Conditions later to include the specific words to cover compensation.

TwoTimer

HH Judge Yelton (in the Dawson case) specifically ruled the limit was six years in his original Judgment (paragraph 27). This Judgment has also been upheld by the Court of Appeal and the Supreme Court. It must be noted that HH Judge Yelton did not make an exception that airlines can add their own restrictions to the limitation.
So it would seem that the claimant's rights under EU261/2004 are as the law has interpreted them in this country (a six year statutory limit to bring a legal action) and that Article 15 of EC261 Regulations specifically excludes the claimant's rights being denied by restrictive clauses in an airline's Terms and Conditions.

Article 15
Exclusion of waiver
1. 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.

TwoTimer

If the T&Cs state "bring an action" within two years, it does not specify what type of action it refers to. The definition of "bring an action" as it would be understood by a member of the general public would be the fact or process of doing something, typically to achieve an aim. The act of submitting a claim for compensation in a letter to the airline would be reasonably considered "an action" in the literal and common meaning of the word.
The use of the term "bring an action" is ambiguous and in this context in which the airlines claim it has a legal implication. It should state clearly "bring a LEGAL action" to be fully understood. The Unfair Terms in Consumer Contracts Regulations 1999, states that:

Written contracts
7.—(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.
(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under regulation 12.
Effect of unfair term
8.—(1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.
(2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term.

TwoTimer

The restrictive clause was not negotiated between the parties in an equitable manner. The Unfair Terms in Consumer Contracts Regulations 1999, states that:

Unfair Terms
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.
(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.
(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

SCHEDULE 2 Regulation 5(5)
INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR
(q) excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to
him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

NoviceAngel

Interesting posts and some good info there....

My own view on this is crystal, it's a very cynical, disgraceful way that some airlines, probably the famous five, are now using to evade their legal obligations to passengers under the EC 261/2004 regulations.

It's the same sort of abhorrent behaviour shown by some employers, asking workers to sign away their employment rights which they are afforded under law.

Yet there may appear to be some legal mileage in their approach?!?

The Supreme Court decision quite clearly ruled that the limitation is 6 years. The question we now ask is can airlines, re-write their terms & conditions asking passengers to sign away their legal rights?

My first question would be, Where did the 2 years comes from ? Was it simply plucked out of thin air? If it's legally acceptable to restrict claims to a two year period , what's wrong with a one year restriction ? Surely, one year is long enough to fill in an N1 form ? If one year is acceptable what about 24 hours, or even 24 minutes?

24 seconds?

At what point does it become unreasonable, my argument is simple 6 years as upheld by our Supreme Court.

If legal argument is accepted that it is indeed possible and fair for an airline to enforce passengers to give up there legal rights, could this be the future:-

You agree by making this booking that you sign away all your rights under regs EC261/04 we can delay your flight for an indefinite period and we have no obligation whatsoever to compensate you or even give you a glass of water let alone vouchers for food.

Of course, that is ludicrous, but that could be the shape of things to come if this two year nonsense is not quickly squashed by the Courts.

I have read very little on this months appeal, if anyone knows details, times, dates if it's an open Court, your roving reported might be tempted to make an appearance.

My only personal experience of this does not relate to flight delay, very briefly I signed an agreement for advertising. The Companies agreement was full of how this Contract was binding and one signed I had to pay, but went on to say, that they the Company were under no binding agreement to actually publish the advertisement, and if they failed to publish, I was entitled to a refund of the paid advertising, and that I had no claim against them for damages. Went via MCOL, and they settled out of Court, for a nice sum that I was happy with. The story is posted on here, search my started threads if your bored.

Law is underpinned by Common Law and the basis of overriding fairness to both parties, if one party is unfair to the other, then the agreement can be ruled by a District Judge to be just that 'unfair' and dismissed. Let's hope that this months appeal puts a stop to this nonsense.

Cheers,

NoviceAngel

NoviceAngel

Ohh and just to add,

In the Allen case, it was argued by Mr Charles Bear QC, that passengers cannot complain to further 'stays' as some passengers had taken years sometimes as long as five years, before submitting a claim. So that to delay for a few more years, until the Van der Lans reference is considered by the CJEU, shouldn't be an issue.

There is definitely a clue to the way the Courts will deal with this 2 year nonsense...

Lets remind ourselves what District Judge Jenkinson said

DJ_Jenkinson wrote:

21. Neither am I persuaded by the airlines' submission that a passenger who has not brought their claim timeously cannot realistically complain about the further delay that a stay of proceedings would impute. This would require a case by case analysis as to the reason for the delay in bringing the claim, when the passenger became aware of their entitlement to do so etc. Furthermore, whilst some claims have been brought long after the delayed flight, others have been brought remarkably quickly, such as that of Mr Dombovich, who issued his claim at the County Court within 2 months of the delayed flight.

howticklediam

NoviceAngel wrote: »

My first question would be, Where did the 2 years comes from ? Was it simply plucked out of thin air? If it's legally acceptable to restrict claims to a two year period , what's wrong with a one year restriction ? Surely, one year is long enough to fill in an N1 form ? If one year is acceptable what about 24 hours, or even 24 minutes?
NoviceAngel

The two years clause comes straight out of the Montreal Convention which is why it is almost identical in other airline's T&Cs, as they have all lifted it, and of course has been successfully argued against in Dawson.

I've not read it in full yet, but I have an idea that in the Montreal Convention it relates to baggage, not general claims. But I need to check that fact.

CobyBenson

I can see there are a lot of questions on here about the upcoming appeal so thought I'd post the relevant details.

The appeal involves 2 cases where the Court dismissed the claims based on Ryanair's limitation argument. The Court made this decision without hearing any submissions from the passengers, so we have appealed.

The cases are Goel and Baweja v Ryanair Limited and Trivedi and Others v Ryanair Limited.

The appeal will take place in public, before a circuit judge, at Manchester County Court at 10:30am on 27th March 2015. As with any County Court appeal the decision will not be binding.

The appeal centres around whether the term "Any right to Damages shall be extinguished if an action is not brought within two years..." means that a claim for compensation under Regulation 261/2004 expires if court proceedings have not been issued within 2 years of the date of the flight.

The passengers' arguments are as follows:-
1) The term is void because of Article 15 of the Regulation
2) The term refers exclusively to damages, whereas this is a claim for compensation.
3) In any event the interpretation of the term is unclear and as such must be interpreted in favour of the passenger.
4) The term is unfair.

The airline's arguments are:-
1) Article 15 concerns waiving obligations, this term does not alter the obligations, it simply alters the amount of time in which you have to enforce those obligations.
2) A claim under Regulation 261/2004 is one for "damages for breach of a statutory duty to pay compensation" and therefore falls within the scope of the term 'damages'.
3) The term is perfectly clear when considering its normal meaning.
4) A 2 year time limit is plenty of time to make a claim and does not create a 'significant imbalance', therefore it is fair.

I am aware of the following decisions in favour of the passengers:-
Afford v British Airways PLC (Not appealed)
Trippett v British Airways PLC (Not appealed)
Banks v Ryanair Ltd (Not appealed)
Drew v Ryanair Ltd (Ryanair asked for permission to appeal this week)
Vergara v Ryanair Ltd (Scottish case - Appealed and passenger won)
Anonymous v Ryanair Ltd (Scottish case - Appealed and passenger won)

The airlines will often rely on the following decisions:-
Clissold v Ryanair Limited
Thieme v Ryanair Limited
Pickard v Ryanair Limited

However, these were all litigants in person.

Please note, none of these decisions affect Jet2.com because their terms and conditions are worded differently. I'm not aware of any test case against Jet2.com.... yet.

Hope this helps people.