Flight delay with a connection in Switzerland

ngh

Hi,

My wife and I recently travelled on a flight from London to Phuket with a connection in Zurich. The flights were booked together on the same ticket, with the first flight (LHR - ZRH) operated by Swiss and the second flight (ZRH - HKT) operated via Edelweiss Air. The second flight was delayed (the plane we were due to take was apparently damaged in a sandstorm in Tanzania) and we ended up arriving in Phuket approximately 7 hours late.

Bottonline and EuClaim website checkers both seem to think we have a claim, however Edelweiss have said:

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Edelweiss makes every effort to maintain its published timetable and to transport their passengers to their booked destinations. The aircraft planned to operate the flight was found to have a secondary technical defect. The necessary repairs took some time, which interrupted the flight rotation.

Nevertheless, we would like to point out that in accordance with Regulation (EC) 261/2004, airlines are not required to make compensation payments in the event of a delay. The law applicable in EU Member States according to ECJ ruling of 19 November 2009, according to which compensatory payments are due in case of a delay of more than 3 hours, does not apply in Switzerland. It is not possible under these circumstances to respond to your request for compensation on our part.
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A couple of questions:
1) Is it likely that we have a claim (if so, can we try and claim in the UK (MCOL?) as the flight (insofar as the booked ticket) was UK - Phuket, or does the fact that it had a connection and the delay happened on the Zurich - Phuket leg complicate this)
2) If we went down the Bott&Co route - it looks like their fees work out at just over 50% of the claim at £270 for a win of £520 ( https://www.bottonline.co.uk/flight-delay-compensation/fees ) - the MSE guide mentions about using a solicitor like them, but also mentions 'Never go for a company that charges more than 30% of your win plus VAT.' - am I missing something here?

Thanks

eskbanker

Although Switzerland isn't in the EU, it did voluntarily adopt the EC 261/2004 regulations themselves, but doesn't consider itself bound by subsequent ECJ decisions, so Edelweiss's stance may be legally correct.

It may be viable to claim under the UK regulations instead, on the basis that the itinerary started in the UK and is therefore in scope, but these regulations also don't explicitly mandate compensation for delays and rely on inheriting the ECJ rulings.

Personally I think I'd try that, but it may ultimately be necessary to engage ambulance-chasers - in a case like this they may well have to earn their cut!

ngh

OK thanks. So I've done a little more digging and I think I may have a case, as you say, going down the UK route.

According to this website: https://www.hfw.com/UK261-Passenger-rights-after-the-Brexit-transition-period-Jan-2021 it says:
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All case law of the Court of Justice of the European Union (CJEU) made on or before 31 December 2020 in relation to EU261 will be retained indefinitely in the UK and will be binding on the English county and high courts and their Scottish and Northern Irish equivalents. The UK Supreme Court and the English Court of Appeal and its equivalents will have the power to depart from past case law, but only in very limited circumstances, applying the same test that the Supreme Court uses to depart from its own past decisions.
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And according to this article from Bott&Co (last updated March 2020) (https://www.bottonline.co.uk/blog/connecting-flights-outside-eu-now-claimable):
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This ruling means that passengers who are denied boarding, delayed more than 3 hours or have a cancelled flight on non-EU connecting flights are now eligible for compensation if the cause is not extraordinary circumstances.
For example, if you are flying from London to Sydney, with a stopover in Dubai, and your latter flight is delayed or you cannot board the aircraft, you are still covered by the regulation.
[...]
The decision is legally binding throughout Europe, and sets a new precedent.
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With this in mind I think I'll have a go myself before going down the solicitor route.

Thanks!!

onashoestring

Would “damaged in a sandstorm” be classed as extraordinary circumstances in which case compensation would not be due ? 

Westin

onashoestring said:

Would “damaged in a sandstorm” be classed as extraordinary circumstances in which case compensation would not be due ? 

I would think so as well. Perhaps the plane needed a maintenance check following the sandstorm damage and prior to operating your flight (safely). I can see Edelweiss taking that approach. Reasonable perhaps and presumably preferred by those due to travel on WK050. 

eskbanker

onashoestring said:

Would “damaged in a sandstorm” be classed as extraordinary circumstances in which case compensation would not be due ? 

I think it depends on the extent to which such conditions are genuinely exceptional in Tanzania, rather than inherent in operations there, and there is also a question mark over whether a knock-on delay to a later flight (from the airline's home base, where they'd be more likely to have spare aircraft and crew) can be classified as exceptional circumstances.

ngh

Westin said:

onashoestring said:

Would “damaged in a sandstorm” be classed as extraordinary circumstances in which case compensation would not be due ? 

I would think so as well. Perhaps the plane needed a maintenance check following the sandstorm damage and prior to operating your flight (safely). I can see Edelweiss taking that approach. Reasonable perhaps and presumably preferred by those due to travel on WK050. 

Of course I wouldn't expect an airline to operate a flight with potential damage, but as eskbanker mentions (and from what I've seen from my albeit limited research on the subject) knock-on effects generally don't seem to be a basis for a claim of extraordinary circumstances.

According to Bott&Co ( https://www.bottonline.co.uk/flight-delay-compensation/claim-guides/what-are-extraordinary-circumstances ) (my bolding)
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What Are Not Extraordinary Circumstances?

If your delay was caused by one of the following, you may be entitled to compensation according to EU261.

Issues with airline staff e.g. crew turning up late or understaffing

Bad weather affecting a previous flight, causing your flight to be delayed

Denied boarding due to the flight being overbooked

Technical problems with the aircraft (except hidden manufacturing defects or problems caused by sabotage)
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And according to EC261 it would seem the meteorological conditions need to affect the flight in question, not the aircrafts previous sector(s): ( EUR-Lex - 32004R0261 - EN (europa.eu) )
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As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, [...]
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