Delay due to de-icing 13 March at 3:35PM in Flight delay compensation 12 replies 319 views

Wobbler70

Hi all - Forum newbie - please be gentle!

I have had a claim turned down by the ADR adjudicator for a delayed flight with Easyjet.  The defence was bad weather, but the actual reason was that there was a delay in getting a deicing rig to our plane.  Planes were taking off just fine once de-iced, and although the weather deteriorated later and lots of flights were cancelled, that wasnt the case here. 

I know that there is a case on deicing NOT being sufficient to deny a claim, but i just have a boiler plate response from the adjudicator, and s/he doesnt appear to have taken any of my comments (or the case law) into account.

WHat now?  I'm tempted to go small claims court, but dont want to if the case law (from Germany) isnt binding.  ANy ideas please? 

Thanks! 

Caz3121

the delay needs to be caused by/within the control of the airline to qualify for delay. I suspect the deicing (which would have been required due to the weather) would have been controlled by the airport and not the airline

eskbanker

I guess there are a few issues that come into play here:

• are pre-Brexit German judgments binding on UK courts since the UK left the EU?
• is the case you're relying on from a sufficiently senior court?
• is it sufficiently relevant to your scenario?

Perhaps worth expanding on your line of argument in more detail and citing the case you refer to, especially with regard to the full wording of the relevant clause in the regulations (i.e. no airline liability if "caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken")?

Wobbler70

Thanks both. It's the binding point that I'm concerned about. The case isn't entirely on point but the narrative judgement makes it clear that deicing is in the control of the airline so, it isn't an extraordinary circumstance.

eskbanker

Wobbler70 said:

Thanks both. It's the binding point that I'm concerned about. The case isn't entirely on point but the narrative judgement makes it clear that deicing is in the control of the airline (as you rightly say) so, it isn't an extraordinary circumstance.

@Caz3121 was saying the opposite (i.e. that it's more likely to be seen as within the airport's control rather than the airline's) and I suspected the same in terms of whether the airline should reasonably have taken other measures.

The issue of EU judgments being applicable to UK courts post-Brexit is one I've just had a quick search about but wouldn't feel confident in commenting on!  Maybe one for the likes of Legal Beagles?

lisyloo

I'm fighting a similar issue regarding delaying baggage (at heathrow).
My argument is that it's not an extraordinary circumstance (not one I've seen defined anywhere).

So I'm interested in this also.
I thought the EU compensation laws were taken on after brexit?

eskbanker

lisyloo said:

I thought the EU compensation laws were taken on after brexit?

The EC261/2004 regulations were indeed adopted into UK law, but the question is a wider one about whether associated judgments made in EU courts are considered binding on UK courts.

CKhalvashi

eskbanker said:

Wobbler70 said:

Thanks both. It's the binding point that I'm concerned about. The case isn't entirely on point but the narrative judgement makes it clear that deicing is in the control of the airline (as you rightly say) so, it isn't an extraordinary circumstance.

@Caz3121 was saying the opposite (i.e. that it's more likely to be seen as within the airport's control rather than the airline's) and I suspected the same in terms of whether the airline should reasonably have taken other measures.

The issue of EU judgments being applicable to UK courts post-Brexit is one I've just had a quick search about but wouldn't feel confident in commenting on!  Maybe one for the likes of Legal Beagles?

I also suspect the same.

From my understanding of the government's interpretations of this specific legislation, EU rulings are not automatically transferred to the UK post-Brexit, but courts likely due to similar wording will take them into account. I have successfully used a non-EU court judgement (but again where the legislation has the same wording) against an EU airline but not in court. I would have no problem doing this in the courtroom however, quoting from the UK legislation (which is exactly the same with different currency amounts). Whether a judge would agree with this I don't know.

lisyloo

From what I've heard from friends (employers, landlords) this is all down to what the judge decides on the day and what evidence is presented on the day (an employer lost a case where they didn't have proof on the day of employee being absent on a particular day). Especially if we are talking county court.
Surely a case like this is unlikely to be dragged up to higher courts?

The real question for us normal people (and businesses) is how far to take it.
If you're a millionaire then that may be a different matter.

Wobbler70

Bott and CO have just said no due to bad weather.  Its defo small claims, so i guess it is whether I want to risk losing £80 or whatever the court fee is.

I'

eskbanker

Wobbler70 said:

Bott and CO have just said no due to bad weather.

What was the specific question that they answered with 'no', i.e. was it 'are you prepared to take this on' or 'do you think this is the airline's fault' or 'do you think it's extraordinary circumstances', or something else?

Bad weather obviously manifests itself in various ways, in terms of runway closures, ATC restrictions, etc, but how much of your delay was solely attributable to sourcing a deicing rig?