UK261 / EU262 delayed flight compensation questions

larryharvey

Hi all.

So I took a flight with a European airline last year, UK to EU to Brazil, and back.

They failed to notify me that they had cancelled the flight back, and so had moved me to a flight departing eight hours earlier.

Anyway, having missed that flight, I put in a claim. They refused to pay, so I started legal proceedings.

Their argument against my claim is that 1) I used a flight voucher which means I am not entitled to claim as per the UK261 legislation, and 2) the UK261 legislation only applies to delayed flights, not flights that depart many hours earlier

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I am therefore looking for proof or case law etc that shows that is does not matter if I a customer uses miles, vouchers etc to book, this does not exampt the airline from their responsibilities

and

Flights that end up leaving more than four hours earlier are classed the same as flights that leave more than four hours later.

Can anyone help?

Also trying to get hold of actual PDF's for the official UK261 legislation, and EU261 for completeness.

Thanks!

eskbanker

The full UK legislation is published at https://www.legislation.gov.uk/eur/2004/261/contents and the EU version at https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32004R0261

In terms of their arguments:

 "1) I used a flight voucher which means I am not entitled to claim as per the UK261 legislation"

What sort of voucher exactly? Are they seeking to rely on 3(3) perhaps?

This Regulation shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. However, it shall apply to passengers having tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator.

"2) the UK261 legislation only applies to delayed flights, not flights that depart many hours earlier"

If the flight was cancelled (and the root cause wasn't extraordinary circumstances) then compensation may not be payable if an alternative is offered that's close enough to the original time, depending on how far in advance it was notified, as shown in article 5.

Note that 5(4) specifies "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".

larryharvey

Many thanks!

larryharvey

So my flight was booked using a travel voucher worth £700 and a leftover cash payment of £60. Does this disqualify it? Flight certainly was not free.

eskbanker

larryharvey said:

So my flight was booked using a travel voucher worth £700 and a leftover cash payment of £60. Does this disqualify it? Flight certainly was not free.

As above, the wording is "free of charge or at a reduced fare not available directly or indirectly to the public" but I wouldn't have thought that the use of a payment voucher should affect that if you were selecting and purchasing a ticket directly from their website, for example.  Was the voucher issued by the airline or another organisation?

If you've started legal proceedings, have they actually issued a formal defence yet or are you just relaying their lines of argument that led to the proceedings being initiated?  The wording you've quoted sounds very informal....

larryharvey

I bought from their website using a voucher they issued. 

My understanding is that the exclusions are meant to be used specifically to protect against airline staff who receive discounted fares.

Their defence was full of lies. I have a hearing in a month. 

eskbanker

Yes, that's my understanding of the free/discounted flight exclusion too, but if your flight was valued at £760 and you paid with a £700 voucher and £60 cash then that's not the same as discounting it down to £60.

I'm still puzzled by their reference to "the UK261 legislation only applies to delayed flights, not flights that depart many hours earlier", if the scenario here is that the flight was cancelled?  I don't understand your assertion about "Flights that end up leaving more than four hours earlier are classed the same as flights that leave more than four hours later" either though - is the airline claiming that they informed you of the cancellation and if so, how far in advance of the departure date/time?

larryharvey

K - so I was on TWO flights. Brazil to Amsterdam to London. Got an email telling me that I was being moved to an earlier flight to London, which meant my stopover in Amsterdam evaporated. Turns out they had also cancelled the flight Rio to Amsterdam and put me on a much earlier one, but I had to find that out myself a few days before when moving my plans around and calling them directly.

larryharvey

So they failed to give me the required notice of the international flight being cancelled. 

Westin

Some of the rest of the story…

https://forums.moneysavingexpert.com/discussion/6446973/cancelled-flight-airline-klm-refusing-to-pay-delayed-flight-compensation-though/p2

eskbanker

larryharvey said:

Turns out they had also cancelled the flight Rio to Amsterdam and put me on a much earlier one, but I had to find that out myself a few days before when moving my plans around and calling them directly.

In your other thread you said:

larryharvey said:

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

Did you have to call them to find out about being moved to an earlier flight a few days before, or were you told 12 days beforehand?

Either way round, if the airline is claiming that they notified you over 14 days in advance, then the crux of the case will be the relative credibility of their assertion versus yours that you didn't receive this notice, although article 5(4) should work in your favour.

larryharvey said:

Their defence was full of lies.

Other than disputing their assertion that they notified you at least 14 days in advance, do you have clear evidence to counter the other points that you're challenging?


Ultimately, your chances of success in court (you never did clarify which one btw) will be dependent on your ability to articulate your case concisely, coherently, consistently and without extraneous irrelevant side issues, so, especially given that your case was originally struck out because "the Judge said the Particulars of Claim do not state any legal reason for bringing the claim", it's a good opportunity to practice this style when asking for help on here!