Cancelled flight, airline KLM refusing to pay delayed flight compensation though

larryharvey

Hi MSE forum,

Hoping someone can point me in the right direction.

Flew Cardiff via connecting city Amsterdam to Rio, no problems. EU Airline KLM.

Flying back, the flight Rio to Amsterdam was cancelled and I was moved to a flight on the previous day, and I was only told 12 days beforehand. They mucked up telling me, basically, advising the Amsterdam to Cardiff flight was delayed, but failing to tell me the Rio to Amsterdam flight was CANCELLED/THEREFORE CHANGED.

I pointed out I was, as per the 'EU directive,' entitled to a 600 Euro payment.

They refused to pay. Stating they gave me sufficient notice, which is BS.

I then litigated against KLM in court.

I cited the EU statute in my particulars of claim. KLM defended, not based on this being the incorrect law though - indeed their defence says nothing about the wrong stature being used, in fact they quote directly from it to make a point that said statute states "no compensation is due if I was notified at least 14 days in advance" - and they say I was given said notice! They've lied. That cannot be disputed because of the emails I have from them.

But the court struck it out, without conferring with me, presumably believing them.

So I am now looking into making an application, ASAP, to have it reinstated, and want to make sure I have all my ducks in a row.

My understanding is that the EU statute does apply, as it is a EU airline. 

But the only other reason I can think the Judge would strike it out is that I cited the wrong law/statute, and the UK one is the one that applies. Because I did notify the court in advance that their defence was lying.

Can anyone advise please?

Thanks.

Voyager2002

Which court was this?

If you were relying on EU law you would have needed to launch proceedings in a court within an EU country. If (as I suspect) you commenced proceedings in a court in England your claim should have been based on English law: a claim based on Brazilian; Scottish; Dutch or EU law will inevitably fail unless you are relying on a law that has been incorporated into English law.

Voyager2002

Note that there is no such thing as "UK law/statute". In England you would rely on English law, but the legal system in Scotland is very different.

eskbanker

larryharvey said:

I cited the EU statute in my particulars of claim. KLM defended, not based on this being the incorrect law though - indeed their defence says nothing about the wrong stature being used, in fact they quote directly from it to make a point that said statute states "no compensation is due if I was notified at least 14 days in advance" - and they say I was given said notice! They've lied. That cannot be disputed because of the emails I have from them.

The EU and UK versions of the regulations are practically identical anyway, and both cite as article 5(4):

The burden of proof concerning the questions as to whether and when the passenger has been informed of the cancellation of the flight shall rest with the operating air carrier.

so presumably KLM have supplied evidence of a notification being sent more than two weeks in advance, even if you didn't actually receive this one?

larryharvey said:

But the court struck it out, without conferring with me, presumably believing them.

So I am now looking into making an application, ASAP, to have it reinstated, and want to make sure I have all my ducks in a row.

My understanding is that the EU statute does apply, as it is a EU airline. 

But the only other reason I can think the Judge would strike it out is that I cited the wrong law/statute, and the UK one is the one that applies. Because I did notify the court in advance that their defence was lying.

I'm not familiar with the process of court cases being struck out, but wasn't there any sort of explanation of the basis of that action, rather than you having to guess?  Do you have the option of asking them?

larryharvey

@eskbanker the Judge said the Particulars of Claim do not state any legal reason for bringing the claim.

Those particulars of claim read:

"KLM are refusing to carry out their statutory and legal obligations as per EU regulation 261/2004 and pay me 600 Euro I am owed for booking R2OZON. I have had to budget accordingly and am beyond furious. They are trying to deny what I am owed with disgusting impunity. I warned them I would have my Christmas ruined"

eskbanker

larryharvey said:

@eskbanker the Judge said the Particulars of Claim do not state any legal reason for bringing the claim.

Those particulars of claim read:

"KLM are refusing to carry out their statutory and legal obligations as per EU regulation 261/2004 and pay me 600 Euro I am owed for booking R2OZON. I have had to budget accordingly and am beyond furious. They are trying to deny what I am owed with disgusting impunity. I warned them I would have my Christmas ruined"

Hopefully the particulars of claim went some way beyond that in including relevant information, as that doesn't seem to clearly state any legal reason?

The last three sentences are completely inappropriate and unnecessary in the context of legal action, but you should have expanded on the first one, by showing your workings and explaining exactly which aspects of the regulations you're relying on, with citations and so on - an angry rant is no substitute for a properly-constructed factual and pertinent claim.

larryharvey

I sent subsequent expanded submissions clearly outlining that I was not informed until less than a fortnight before the flight.

So I can only assume that quoting the wrong law is what the Judge is talking about?

eskbanker

larryharvey said:

I sent subsequent expanded submissions clearly outlining that I was not informed until less than a fortnight before the flight.

So I can only assume that quoting the wrong law is what the Judge is talking about?

I'd be very wary of making assumptions and would seek clarity from the court, as it could alternatively be an issue of jurisdiction, or just not making a clear enough claim?

"the Judge said the Particulars of Claim do not state any legal reason for bringing the claim" made me think it was the content of the claim but you shouldn't be needing to guess - was this said right at the end or before your expanded submissions?

Alan_Bowen

Did you book directly with the airline or through an agent, if it was the latter, the airline may have advised them more than 14 days before the cancellation.

eskbanker

larryharvey said:

KLM defended, not based on this being the incorrect law though - indeed their defence says nothing about the wrong stature being used, in fact they quote directly from it to make a point that said statute states "no compensation is due if I was notified at least 14 days in advance" - and they say I was given said notice! They've lied. That cannot be disputed because of the emails I have from them.

Just to go back to this point, of course it can be disputed - you can't prove they didn't send you an email more than 14 days before the flight and can't even prove that you didn't receive one then either for that matter, in that you generally can't prove a negative, i.e. producing an email sent (or just received?) 12 days before scheduled departure doesn't disprove one being sent 14+ days before.

Civil courts will work on the balance of probabilities and if KLM can produce some sort of evidence of sending an email (as required by article 5(4)) then that's likely to carry more weight than an unsupportable assertion that it wasn't sent.

If KLM were unable to demonstrate giving you notice then it seems unlikely that they'd reject your claim and then choose to defend a court claim, but it's still worth getting to the bottom of why the court case was struck out rather than guessing....

larryharvey

eskbanker said:

larryharvey said:

KLM defended, not based on this being the incorrect law though - indeed their defence says nothing about the wrong stature being used, in fact they quote directly from it to make a point that said statute states "no compensation is due if I was notified at least 14 days in advance" - and they say I was given said notice! They've lied. That cannot be disputed because of the emails I have from them.

Just to go back to this point, of course it can be disputed - you can't prove they didn't send you an email more than 14 days before the flight and can't even prove that you didn't receive one then either for that matter, in that you generally can't prove a negative, i.e. producing an email sent (or just received?) 12 days before scheduled departure doesn't disprove one being sent 14+ days before.

Civil courts will work on the balance of probabilities and if KLM can produce some sort of evidence of sending an email (as required by article 5(4)) then that's likely to carry more weight than an unsupportable assertion that it wasn't sent.

If KLM were unable to demonstrate giving you notice then it seems unlikely that they'd reject your claim and then choose to defend a court claim, but it's still worth getting to the bottom of why the court case was struck out rather than guessing....

Actually I have the email they sent regarding changing the connecting flight. nothing in there about cancelling the first flight though. So obviously there was a system error. You don't send two separate emails when it is one set of flights.