Two year time-bar

stevemej

TwoTimer wrote: »

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.

Just found this:

XIV. EXCLUSION

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.

2. If, nevertheless, such a derogation or restrictive clause is applied in respect of a passenger, or if the passenger is not

correctly informed of his rights and for that reason has accepted compensation which is inferior to that provided for in this

Regulation, the passenger shall still be entitled to take the necessary proceedings before the competent courts or bodies in

order to obtain additional compensation.

Question 30: Can obligations vis-à-vis passengers pursuant to the Regulation be

limited or waived, notably by a derogation or restrictive clause in the contract of

carriage?

32

No. Irrespective of what a carrier's Conditions of Carriage may say in relation to the provision

of assistance or compensation, Article 15 of the Regulation expressly states that a carrier

cannot limit or waive their passenger obligations by the use of such conditions. Such

conditions cannot therefore take precedence over the legal requirements of the Regulation.

here is a link to the full regs: http://ec.europa.eu/transport/themes/passengers/air/doc/neb/questions_answers.pdf_reg_2004_261.pdf

Vauban

Yes. But there's nothing in the Regulation that says you have six years to bring a court case.

So what is being limited or waived?

stevemej

Vauban wrote: »

Yes. But there's nothing in the Regulation that says you have six years to bring a court case.

So what is being limited or waived?

http://www.bottonline.co.uk/flight-compensation-latest-news/judgment-summary-dawson-v-thomson-airways

"The Court upheld the decision of HHJ Yelton of Cambridge County Court and in so doing they dismissed the airline’s appeal and confirmed that the time limit for bringing a claim for compensation under EC Regulation 261/2004 is indeed 6 years as per Section 9 of the Limitation Act."

Vauban

Yes. But this doesn't help you, unfortunately. The Dawson case was about whether the time limit to bring an action was determined by the Montreal Convention [2 years] or National Statutes of Limitation. The Court of Appeal say the latter, which the airlines now begrudgingly accept.

The Statute of Limitation is generally six years in England (five in Scotland) but there is also provision to shorten this period under the statute if it is agreed in contract between the two parties. It is this provision that is currently being argued through the courts, but Article XIV of the Regulation isn't really relevant. At least that is how I understand it.

NoviceAngel

Vauban wrote: »

The Statute of Limitation is generally six years in England (five in Scotland) but there is also provision to shorten this period under the statute if it is agreed in contract between the two parties. It is this provision that is currently being argued through the courts, but Article XIV of the Regulation isn't really relevant. At least that is how I understand it.

Agreed, I still think it's an unfair contract and should be ruled as such by the judiciary but I understand our legal friends are less certain....:o

Let's hope they're wrong and I'm right for once.

Vauban

NoviceAngel wrote: »

Agreed, I still think it's an unfair contract and should be ruled as such by the judiciary but I understand our legal friends are less certain....:o

Let's hope they're wrong and I'm right for once.

Yes - that's my understanding too.

It seems to me to be most unfair - and there is an argument that, where contracts are agreed between two parties that reduce the legal protections ordinarily available, these need to be between two parties of equal standing (and genuinely negotiated - not just a ticked box to pre-determined T&Cs).

But I know some judges have taken a different view - and that this is likely to go all the way back up to the Court of Appeal again.

Of course the real lesson is that, if you are delayed and the airline mess you about with your claim, just start court action so you're not vulnerable on this point!

NoviceAngel

Vauban wrote: »

..........
But I know some judges have taken a different view - and that this is likely to go all the way back up to the Court of Appeal again..............

Would Jet2 really be so silly to take this one all the way ? :rotfl:

If I were their shareholders, I'd be happy with a few County Court decisions that go there way, and be content to pay out on a few that don't.. It would be yet another gigantic gamble on their part.

There is no doubt, if it wasn't for 'Huzar' then my case would not have ended amicably out of court. They really should learn by their previous mistakes.

Cheers,

NoviceAngel

Vauban

It's a fair point - but these things develop a momentum of their own.

You'll remember that, when Huzar was won in Manchester, it became "persuasive" (if not strictly binding) and people started winning their cases hands down, before Jet2 appealed it and cases were stayed.

I understand Bott are appealing a lost case to a County Court this month (I think) and the same considerations will basically apply. If either of the losing sides leaves a County Court judgement unappealed, it'll still have a significant effect (which is why I think it's inevitably headed to the CoA).

NoviceAngel

Vauban wrote: »

I understand Bott are appealing a lost case to a County Court this month (I think) and the same considerations will basically apply. If either of the losing sides leaves a County Court judgement unappealed, it'll still have a significant effect (which is why I think it's inevitably headed to the CoA).

Indeed, Manchester County Court at 10:30am on 27th March 2015. The Ryanair case, although I read Coby said it didn't relate to Jet2 as their T & C's were different.

howticklediam

Vauban wrote: »

Yes. But this doesn't help you, unfortunately. The Dawson case was about whether the time limit to bring an action was determined by the Montreal Convention [2 years] or National Statutes of Limitation. The Court of Appeal say the latter, which the airlines now begrudgingly accept.

The Statute of Limitation is generally six years in England (five in Scotland) but there is also provision to shorten this period under the statute if it is agreed in contract between the two parties. It is this provision that is currently being argued through the courts, but Article XIV of the Regulation isn't really relevant. At least that is how I understand it.

Botts are arguing the Article 15 principle, from earlier in this thread:

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.

Point 2 - I think the only difference, from what I've seen, is that the Ryanair TCs specifically say damages where j2's don't. However, the equivalent clause in j2's TCs is in a section that talks exclusively about loss and damage to baggage, so the obvious implication is that is was meant to refer to damages, which is why they have updated it later to specifically say compensation and removed it from the baggage claims section.

The other points though are just as relevant to j2 and depending on the wording of the judgement could be very persuasive.