Virgin Atlantic family holiday disrupted by airline - they booked us on a different flight

CKhalvashi

simonH123 said:

Thanks for all the advice everyone.
So, Virgin came back to me very quickly denying any claim on the grounds that "You arrived at your destination within 3 hours of your scheduled arrival time".
There was no mention of the fact the flight they put us on departed several hours earlier than the original flight that I'd booked.

I'd get back to them equally quickly reminding them of this.

The legislation is clear and that's a bad effort on Virgin's part.

simonH123

Thanks CKhalvashi.
I'd imagine it's their initial response.
What's funny is if we'd caught the flight they put us on from Atlanta to London, with the impossible connection in Atl, then we would have arrived in London several hours earlier than our initial direct flight that I booked and consequently be entititled to compensation under this response from their customer service.
We missed the connection, were rebooked to Washington, then London, and arrived in London around the same time as the direct flight I originally booked weeks ago.

Westin

Just a thought, this flight change wasn’t around the time of Hurricane Ian was it, or just prior?  I know VS cancelled about three days of flying with passengers asked to route on other flights prior to the closure of MCO. 

eskbanker

I initially thought that there's a valid claim here for compensation for involuntary denial of boarding on the original direct flight (which wasn't cancelled or delayed as I understand it), which compels airlines to compensate under article 7 regardless of cause, i.e. no extraordinary circumstances to hide behind.  However, re-reading the regulations, that only seems to apply to being denied boarding once present at the airport, so I'm not sure exactly what protection the regulations offer in this scenario of being bumped off an operating (not cancelled) flight days in advance, even though it seems obvious that there should be some protection. 

The potential for a claim arising from the rerouting arrangements is also likely to be complex, as there were effectively two separate reroutings (first two legs, then three), and it's not clear to me whether any delay claim would use the original direct flight arrival time as the baseline, or if that's essentially reset at the time of the second rerouting.  Perhaps it would help if OP shares the four arrival times involved, i.e. scheduled times for the three separate routings (one, two, then three legs) plus the actual time of arrival?

In terms of any additional airline liability arising from bringing forward the departure time after 'denying boarding', it's not clear to me whether there's anything in the regulations that supports a claim for that, but earlier on I'd suggested that this might be more relevant to the package provider (if applicable) or perhaps insurer.

@CKhalvashi - you say that this should be straightforward and that the legislation is clear, but it might help if you 'show your workings' as this actually seems quite an unusual combination of circumstances here?

CKhalvashi

eskbanker said:

I initially thought that there's a valid claim here for compensation for involuntary denial of boarding on the original direct flight (which wasn't cancelled or delayed as I understand it), which compels airlines to compensate under article 7 regardless of cause, i.e. no extraordinary circumstances to hide behind.  However, re-reading the regulations, that only seems to apply to being denied boarding once present at the airport, so I'm not sure exactly what protection the regulations offer in this scenario of being bumped off an operating (not cancelled) flight days in advance, even though it seems obvious that there should be some protection. 

The potential for a claim arising from the rerouting arrangements is also likely to be complex, as there were effectively two separate reroutings (first two legs, then three), and it's not clear to me whether any delay claim would use the original direct flight arrival time as the baseline, or if that's essentially reset at the time of the second rerouting.  Perhaps it would help if OP shares the four arrival times involved, i.e. scheduled times for the three separate routings (one, two, then three legs) plus the actual time of arrival?

In terms of any additional airline liability arising from bringing forward the departure time after 'denying boarding', it's not clear to me whether there's anything in the regulations that supports a claim for that, but earlier on I'd suggested that this might be more relevant to the package provider (if applicable) or perhaps insurer.

@CKhalvashi - you say that this should be straightforward and that the legislation is clear, but it might help if you 'show your workings' as this actually seems quite an unusual combination of circumstances here?

Yes I can.

Article 3, paragraph 2B would bring the flight in scope of the regulations. I believe you're looking at paragraph 2A which would put this situation outside of the scope of the UK261 legislation, however .

I would deem 'have been transferred by an air carrier or tour operator from the flight for which they held a reservation to another flight, irrespective of the reason.' to be perfectly clear. This is the exact wording of the legislation and covers changes made in advance.

The full legislation is here. https://www.legislation.gov.uk/eur/2004/261/contents/2020-12-31

eskbanker

CKhalvashi said:

eskbanker said:

I initially thought that there's a valid claim here for compensation for involuntary denial of boarding on the original direct flight (which wasn't cancelled or delayed as I understand it), which compels airlines to compensate under article 7 regardless of cause, i.e. no extraordinary circumstances to hide behind.  However, re-reading the regulations, that only seems to apply to being denied boarding once present at the airport, so I'm not sure exactly what protection the regulations offer in this scenario of being bumped off an operating (not cancelled) flight days in advance, even though it seems obvious that there should be some protection. 

The potential for a claim arising from the rerouting arrangements is also likely to be complex, as there were effectively two separate reroutings (first two legs, then three), and it's not clear to me whether any delay claim would use the original direct flight arrival time as the baseline, or if that's essentially reset at the time of the second rerouting.  Perhaps it would help if OP shares the four arrival times involved, i.e. scheduled times for the three separate routings (one, two, then three legs) plus the actual time of arrival?

In terms of any additional airline liability arising from bringing forward the departure time after 'denying boarding', it's not clear to me whether there's anything in the regulations that supports a claim for that, but earlier on I'd suggested that this might be more relevant to the package provider (if applicable) or perhaps insurer.

@CKhalvashi - you say that this should be straightforward and that the legislation is clear, but it might help if you 'show your workings' as this actually seems quite an unusual combination of circumstances here?

Yes I can.

Article 3, paragraph 2B would bring the flight in scope of the regulations. I believe you're looking at paragraph 2A which would put this situation outside of the scope of the UK261 legislation, however .

I would deem 'have been transferred by an air carrier or tour operator from the flight for which they held a reservation to another flight, irrespective of the reason.' to be perfectly clear. This is the exact wording of the legislation and covers changes made in advance.

The full legislation is here. https://www.legislation.gov.uk/eur/2004/261/contents/2020-12-31

I was looking at article 2:

"denied boarding" means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation;

which, although cross-referring to 3.2, effectively seems to point only to 3.2.a rather than 3.2.b by virtue of that bolded wording, and therefore does appear to rule out the denied boarding provisions under article 4?

CKhalvashi

eskbanker said:

CKhalvashi said:

eskbanker said:

I initially thought that there's a valid claim here for compensation for involuntary denial of boarding on the original direct flight (which wasn't cancelled or delayed as I understand it), which compels airlines to compensate under article 7 regardless of cause, i.e. no extraordinary circumstances to hide behind.  However, re-reading the regulations, that only seems to apply to being denied boarding once present at the airport, so I'm not sure exactly what protection the regulations offer in this scenario of being bumped off an operating (not cancelled) flight days in advance, even though it seems obvious that there should be some protection. 

The potential for a claim arising from the rerouting arrangements is also likely to be complex, as there were effectively two separate reroutings (first two legs, then three), and it's not clear to me whether any delay claim would use the original direct flight arrival time as the baseline, or if that's essentially reset at the time of the second rerouting.  Perhaps it would help if OP shares the four arrival times involved, i.e. scheduled times for the three separate routings (one, two, then three legs) plus the actual time of arrival?

In terms of any additional airline liability arising from bringing forward the departure time after 'denying boarding', it's not clear to me whether there's anything in the regulations that supports a claim for that, but earlier on I'd suggested that this might be more relevant to the package provider (if applicable) or perhaps insurer.

@CKhalvashi - you say that this should be straightforward and that the legislation is clear, but it might help if you 'show your workings' as this actually seems quite an unusual combination of circumstances here?

Yes I can.

Article 3, paragraph 2B would bring the flight in scope of the regulations. I believe you're looking at paragraph 2A which would put this situation outside of the scope of the UK261 legislation, however .

I would deem 'have been transferred by an air carrier or tour operator from the flight for which they held a reservation to another flight, irrespective of the reason.' to be perfectly clear. This is the exact wording of the legislation and covers changes made in advance.

The full legislation is here. https://www.legislation.gov.uk/eur/2004/261/contents/2020-12-31

I was looking at article 2:

"denied boarding" means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation;

which, although cross-referring to 3.2, effectively seems to point only to 3.2.a rather than 3.2.b by virtue of that bolded wording, and therefore does appear to rule out the denied boarding provisions under article 4?

It's still clear.

Article 2

(j)"denied boarding" means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation;

Which leads us on to article 3(2)

2.Paragraph 1 shall apply on the condition that passengers:

(a)have a confirmed reservation on the flight concerned and, except in the case of cancellation referred to in Article 5, present themselves for check-in,

• as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent,

or, if no time is indicated,

• not later than 45 minutes before the published departure time; or

(b)have been transferred by an air carrier or tour operator from the flight for which they held a reservation to another flight, irrespective of the reason.

This is a booking within the scope of the regulations. It states 'or', not 'and'. 2(a) and 2(b) are both part of article 3(2).

eskbanker

I have to say that it still isn't clear to me!

Article 3 is setting the scope of the regulations, but in order for any compensation to be payable there needs to be a route to article 7, i.e. a reference from another article.  As above, because the definition of 'denied boarding' specifically includes reference to presenting for boarding, to me that effectively rules out the scenario of advance rerouting, even though that's in scope of the regulations overall under 3.2.b.

Just to clarify, are you seeing this as a denied boarding claim under article 4, or via a different navigation to article 7?

CKhalvashi

eskbanker said:

I have to say that it still isn't clear to me!

Article 3 is setting the scope of the regulations, but in order for any compensation to be payable there needs to be a route to article 7, i.e. a reference from another article.  As above, because the definition of 'denied boarding' specifically includes reference to presenting for boarding, to me that effectively rules out the scenario of advance rerouting, even though that's in scope of the regulations overall under 3.2.b.

Just to clarify, are you seeing this as a denied boarding claim under article 4, or via a different navigation to article 7?

I'd go with denied boarding under article 4 on the basis that a and b aren't mutually exclusive, as defined by the word 'or'.

Virgin aren't going to be able to get around the compensation issue by putting OP on a flight that departs earlier.

I will, however, dig a court case that comes to mind out later. This has definitely been dealt with previously in favour of the passenger under the old EU legislation, of which the new UK legislation has exactly the same wording with the exception of the amounts being in pounds.

eskbanker

CKhalvashi said:

I'd go with denied boarding under article 4 on the basis that a and b aren't mutually exclusive, as defined by the word 'or'.

I understand that a and b aren't mutually exclusive, but our interpretations differ on the relevance of 3.2.b to the definition of denied boarding - just to sum up, my view is that the wording effectively means:

"denied boarding" means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the those conditions laid down in Article 3(2) that specifically relate to presenting themselves for boarding, i.e. just those in 3.2.a

whereas I believe that your interpretation is:

"denied boarding" means a refusal to carry passengers on a flight, although they have presented themselves for boarding who qualify under any of the conditions laid down in Article 3(2)

CKhalvashi said:

Virgin aren't going to be able to get around the compensation issue by putting OP on a flight that departs earlier.

I absolutely agree with the principle that OP should be entitled to something from them but am just trying to help them identify a compelling and supported line of argument that's sufficient to get VA to overturn their rejection of the claim!

CKhalvashi said:
I will, however, dig a court case that comes to mind out later. This has definitely been dealt with previously in favour of the passenger under the old EU legislation, of which the new UK legislation has exactly the same wording with the exception of the amounts being in pounds.

Yes, I'm familiar with the relationship between the EU and UK legislation and would welcome sight of the precedent that you refer to.