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

CKhalvashi

eskbanker said:

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.

Sorry for the delay in getting back to you, I had to go into a meeting.

That is my interpretation, as the airline must alert passengers by asking for volunteers when they become aware of a likelihood of denied boarding from the flight.

On a little shaky ground, the principles of "Tui, BA, EasyJet and IATA -v- CAA" in my interpretation (although in different circumstances) definitely would apply here, as OP wanted to be enjoying their holiday and not hopping around the US chasing connections. I would categorise this as the same 'loss of time' as mentioned in that case.

There is nothing to suggest that OP wouldn't have been present for check in on that flight and in the ruling of "LC, MD -v- easyJet Airline Co Ltd" it was determined that compensation cannot be denied (for a delay) solely on the basis they couldn't prove they were present for check-in when they are the holder of a confirmed reservation for the flight.

In addition under the ruling of "Radu-Lucian Rusu, Oana-Maria Rusuv -v- SC Blue Air Airline Management Solutions SRL" under article  Article 4(3), to be read with Article 8(1), it is the responsibility of the airline to give information on re-routing options to passengers; the passenger is not expected to proactively search.

Virgin actively gave re-routing options before check-in at the airport had opened (although I'm unaware if OP could have checked in online at this stage, this is possibly a case proving it would be prudent to as soon as such option exists), and as far as I can interpret would therefore have activated the protections mentioned above, albeit saving OP the hassle of finding this out when they reached the airport.

On the basis of the above I would say that does give a route directly from Article 3.2.b to Article 7 as Virgin had proactively contacted OP when they became aware that they wouldn't be able to meet the terms of the contract, thus denying them the chance to be present for check-in. If (for example) an Irish airline with a harp on the tail could do this 25 hours before a flight to certain passengers who haven't purchased seats, routing them the day before to an airport nowhere near the city it claims to be and then on the morning of the original to their destination and use this as a way to get out of paying compensation (don't give them ideas), I can't see a judge agreeing to that. I therefore have to deem that this should be treated in the same way as this is effectively what Virgin have done.

eskbanker

CKhalvashi said:

Sorry for the delay in getting back to you, I had to go into a meeting.

No apology needed, I had to go to the pub

That is my interpretation, as the airline must alert passengers by asking for volunteers when they become aware of a likelihood of denied boarding from the flight.

Article 4 undoubtedly requires airlines to seek volunteers, but in the current scenario where the bumping is being carried out well in advance, that is unlikely to be practicable, which unfortunately further strengthens the argument that the regulatory denied boarding provisions in article 4 aren't relevant, as they're obviously worded to cater for denial of boarding at the last minute.

On a little shaky ground, the principles of "Tui, BA, EasyJet and IATA -v- CAA" in my interpretation (although in different circumstances) definitely would apply here, as OP wanted to be enjoying their holiday and not hopping around the US chasing connections. I would categorise this as the same 'loss of time' as mentioned in that case.

The loss of time argument there related to delayed arrival, which is clearly treated differently from early departure in the regulations, so I can't see the relevance.

There is nothing to suggest that OP wouldn't have been present for check in on that flight and in the ruling of "LC, MD -v- easyJet Airline Co Ltd" it was determined that compensation cannot be denied (for a delay) solely on the basis they couldn't prove they were present for check-in when they are the holder of a confirmed reservation for the flight.

Again, I can't see the relevance of a case about being able to prove check-in status, in the context of a rerouting announced/imposed days earlier?

In addition under the ruling of "Radu-Lucian Rusu, Oana-Maria Rusuv -v- SC Blue Air Airline Management Solutions SRL" under article  Article 4(3), to be read with Article 8(1), it is the responsibility of the airline to give information on re-routing options to passengers; the passenger is not expected to proactively search.

To be honest, this seems to be clutching at straws - Virgin clearly did arrange rerouting for OP here.

Virgin actively gave re-routing options before check-in at the airport had opened (although I'm unaware if OP could have checked in online at this stage, this is possibly a case proving it would be prudent to as soon as such option exists), and as far as I can interpret would therefore have activated the protections mentioned above, albeit saving OP the hassle of finding this out when they reached the airport.

Both the article 2 definition of denied boarding and 3.2.a set the condition of 'presenting themselves', i.e. physically rather than merely checking in remotely?

On the basis of the above I would say that does give a route directly from Article 3.2.b to Article 7 as Virgin had proactively contacted OP when they became aware that they wouldn't be able to meet the terms of the contract, thus denying them the chance to be present for check-in. If (for example) an Irish airline with a harp on the tail could do this 25 hours before a flight to certain passengers who haven't purchased seats, routing them the day before to an airport nowhere near the city it claims to be and then on the morning of the original to their destination and use this as a way to get out of paying compensation (don't give them ideas), I can't see a judge agreeing to that. I therefore have to deem that this should be treated in the same way as this is effectively what Virgin have done.

I must admit that I'm struggling to understand any circumstances where 3.2.b comes into play, so you may be right that this is the scenario it was intended for, but I just can't trace a route through the regulations that triggers article 7 from rerouting imposed in advance.

Comments inline above - I remain sympathetic to OP's predicament and feel sure that there must be some way of holding the airline accountable for bumping them off to less appealing alternative flights, but still can't see how the regulations actually deliver that, and don't feel that the above represents a cohesive counter-argument that would cause Virgin to change their minds, but would be delighted to be proved wrong if OP pulls it off!

simonH123

Wow, lots of information in here, thanks everyone.

Just to clarify though, I think my original explanation was not very clear:
We were booked on a direct flight from Orlando to London, which Virgin Atlantic removed us from several weeks after my booking. They then placed us on an indirect flight that left Orlando over 5 hours earlier than our original booking. That was my main point, and the reason I would have thought some kind of compensation is due.

CKhalvashi

Can I just clarify how long before the flight this was? I was under the impression it was a few days before.

The answer to this may very quickly make all of the above completely irrelevant irrespective of whose viewpoint may or may not be correct.

CKhalvashi

eskbanker said:

CKhalvashi said:

Sorry for the delay in getting back to you, I had to go into a meeting.

No apology needed, I had to go to the pub

That is my interpretation, as the airline must alert passengers by asking for volunteers when they become aware of a likelihood of denied boarding from the flight.

Article 4 undoubtedly requires airlines to seek volunteers, but in the current scenario where the bumping is being carried out well in advance, that is unlikely to be practicable, which unfortunately further strengthens the argument that the regulatory denied boarding provisions in article 4 aren't relevant, as they're obviously worded to cater for denial of boarding at the last minute.

On a little shaky ground, the principles of "Tui, BA, EasyJet and IATA -v- CAA" in my interpretation (although in different circumstances) definitely would apply here, as OP wanted to be enjoying their holiday and not hopping around the US chasing connections. I would categorise this as the same 'loss of time' as mentioned in that case.

The loss of time argument there related to delayed arrival, which is clearly treated differently from early departure in the regulations, so I can't see the relevance.

There is nothing to suggest that OP wouldn't have been present for check in on that flight and in the ruling of "LC, MD -v- easyJet Airline Co Ltd" it was determined that compensation cannot be denied (for a delay) solely on the basis they couldn't prove they were present for check-in when they are the holder of a confirmed reservation for the flight.

Again, I can't see the relevance of a case about being able to prove check-in status, in the context of a rerouting announced/imposed days earlier?

In addition under the ruling of "Radu-Lucian Rusu, Oana-Maria Rusuv -v- SC Blue Air Airline Management Solutions SRL" under article  Article 4(3), to be read with Article 8(1), it is the responsibility of the airline to give information on re-routing options to passengers; the passenger is not expected to proactively search.

To be honest, this seems to be clutching at straws - Virgin clearly did arrange rerouting for OP here.

Virgin actively gave re-routing options before check-in at the airport had opened (although I'm unaware if OP could have checked in online at this stage, this is possibly a case proving it would be prudent to as soon as such option exists), and as far as I can interpret would therefore have activated the protections mentioned above, albeit saving OP the hassle of finding this out when they reached the airport.

Both the article 2 definition of denied boarding and 3.2.a set the condition of 'presenting themselves', i.e. physically rather than merely checking in remotely?

On the basis of the above I would say that does give a route directly from Article 3.2.b to Article 7 as Virgin had proactively contacted OP when they became aware that they wouldn't be able to meet the terms of the contract, thus denying them the chance to be present for check-in. If (for example) an Irish airline with a harp on the tail could do this 25 hours before a flight to certain passengers who haven't purchased seats, routing them the day before to an airport nowhere near the city it claims to be and then on the morning of the original to their destination and use this as a way to get out of paying compensation (don't give them ideas), I can't see a judge agreeing to that. I therefore have to deem that this should be treated in the same way as this is effectively what Virgin have done.

I must admit that I'm struggling to understand any circumstances where 3.2.b comes into play, so you may be right that this is the scenario it was intended for, but I just can't trace a route through the regulations that triggers article 7 from rerouting imposed in advance.

Comments inline above - I remain sympathetic to OP's predicament and feel sure that there must be some way of holding the airline accountable for bumping them off to less appealing alternative flights, but still can't see how the regulations actually deliver that, and don't feel that the above represents a cohesive counter-argument that would cause Virgin to change their minds, but would be delighted to be proved wrong if OP pulls it off!

Esk, on your last point, what do you think would be the circumstances where that would be able to pass via a judge in the way I'm thinking if I wouldn't be correct in that interpretation? Especially given the example I've quoted (which would be the same thing in essence and would rightly cause uproar if done on a large scale)?

I think that likely would be a 3.2.b as you can't see another reason for it (neither can I), but I have to agree that the proactive re-routing may in the absence of 3.2.a there being a problem, there may be an issue in the definitions although one wouldn't be exclusive of the other, I maintain the viewpoint on this basis. There would be no reason for that wording if not, and by nature any definitions may not be exhaustive.

I'm happy we're fact checking each other here, even if our interpretation may be different, definitely it forms a useful legal debate for anyone with issues in future.

simonH123

@CKhalvashi

Virgin Atlantic notified us on October 25th that our return flight on November 4th would be changed from the 10:45pm direct flight from Orlando to London to a 4:57pm flight with a change in Atlanta.

CKhalvashi

simonH123 said:

@CKhalvashi

Virgin Atlantic notified us on October 25th that our return flight on November 4th would be changed from the 10:45pm direct flight from Orlando to London to a 4:57pm flight with a change in Atlanta.

They are within the 14 days, I would therefore deem the above to be correct but for the reasons stated, Eskbanker (who is a well respected poster here and whose opinion I respect, even in such debates) disagrees.

I would advise attempting to reach Article 7 via Section 3.2.b of UK261 in the hope that Virgin will agree to pay as a first point of call and on the basis that article 2.j may not be wholly inclusive of all circumstances, bearing in mind the confirmed reservation and no evidence you did not intend to arrive for the flight if they disagree with that.

The worst you're going to get is no and I feel the ADR may side with you if you have to move on to the next stage. Virgin may not want to take this risk.

Can I also confirm that the flight definitely was not cancelled? The debate I've had with Esk is due to how we individually would treat denied boarding on the basis of a specific point of legislation to this and the wording of that legislation. Cancellation is classified completely differently and makes life a lot easier.

eskbanker

simonH123 said:

They then placed us on an indirect flight that left Orlando over 5 hours earlier than our original booking. That was my main point, and the reason I would have thought some kind of compensation is due.

As discussed above, I can entirely understand why you'd be unhappy about this and would be expecting some form of recompense for the inconvenience, but my issue is that I'm unable to locate anything in the actual flight delay/cancellation regulations that would result in the airline being obliged to pay compensation, if the original flight wasn't cancelled.

I was wondering if either the package holiday organiser (if applicable) or your travel insurer may be on the hook instead for curtailment of your trip, have you discussed the matter with either of those?

eskbanker

CKhalvashi said:

eskbanker said:

CKhalvashi said:

If (for example) an Irish airline with a harp on the tail could do this 25 hours before a flight to certain passengers who haven't purchased seats, routing them the day before to an airport nowhere near the city it claims to be and then on the morning of the original to their destination and use this as a way to get out of paying compensation (don't give them ideas), I can't see a judge agreeing to that. I therefore have to deem that this should be treated in the same way as this is effectively what Virgin have done.

I must admit that I'm struggling to understand any circumstances where 3.2.b comes into play, so you may be right that this is the scenario it was intended for, but I just can't trace a route through the regulations that triggers article 7 from rerouting imposed in advance.

Comments inline above - I remain sympathetic to OP's predicament and feel sure that there must be some way of holding the airline accountable for bumping them off to less appealing alternative flights, but still can't see how the regulations actually deliver that, and don't feel that the above represents a cohesive counter-argument that would cause Virgin to change their minds, but would be delighted to be proved wrong if OP pulls it off!

Esk, on your last point, what do you think would be the circumstances where that would be able to pass via a judge in the way I'm thinking if I wouldn't be correct in that interpretation? Especially given the example I've quoted (which would be the same thing in essence and would rightly cause uproar if done on a large scale)?

While I agree that the hypothetical scenario you outline would be unpopular with both passengers and judiciary, my issue remains that I can't trace a clear route through the regulations that would oblige compensation to travellers affected. It seems to be a loophole in the regulations, so such a practice may be in breach of the spirit of them but doesn't on the face of it contravene the letter of them - I think that this is possibly because the regulations appear to be primarily written with flight delays or cancellations in mind, with denied boarding provisions effectively added as an afterthought and perhaps not defined adequately as a result?

eskbanker

CKhalvashi said:

simonH123 said:

@CKhalvashi

Virgin Atlantic notified us on October 25th that our return flight on November 4th would be changed from the 10:45pm direct flight from Orlando to London to a 4:57pm flight with a change in Atlanta.

They are within the 14 days, I would therefore deem the above to be correct but for the reasons stated, Eskbanker (who is a well respected poster here and whose opinion I respect, even in such debates) disagrees.

I'm not following your logic here either - how does a 14 day period relate to a denied boarding claim?

CKhalvashi said:

Can I also confirm that the flight definitely was not cancelled? The debate I've had with Esk is due to how we individually would treat denied boarding on the basis of a specific point of legislation to this and the wording of that legislation. Cancellation is classified completely differently and makes life a lot easier.

From OP:

simonH123 said:

As a footnote, our original flight was not cancelled, Virgin just gave our seats, booked weeks in advance, to someone else.