Ryanair have Cancelled my Flight

the_lunatic_is_in_my_head

eskbanker said:

No, I wasn't referring to customer's rights specifically after a delay or cancellation, but the generic flexibility offered (at a price).

If you mean the option to pay an extra £50 or so for flexibility then I don't think that means those who opt not to can't claim the contract they have is balanced, hotels do the same thing and whilst paying the extra gets you a no fuss refund, not paying the extra doesn't necessarily mean you have to pay 100%.

The CAA has issued guidance on consumer's breaching their contract and either refenced or paralleled (can't remember which) the CMA guidance with regards to finding another customer, etc. Whilst they didn't go so far as to suggest this may be practical for airlines they did note the aspects of the ticket price the airline will not have to pay for (such as taxes) should be refunded for a "non-refundable" flight. 

eskbanker said:

Obviously organisations can't simply opt out of statutory obligations, but I find it hard to believe that large numbers of reputable businesses (as well as Ryanair!) are opening themselves up to potential consequential loss claims simply by virtue of contract terms that don't award equal rights to merchant and customer - I'm not just thinking of travel companies here but other businesses where customers don't have unilateral contractual cancellation rights to mirror those intrinsically required by the trader, such as concert tickets, gyms, etc.

However, like yourself, I'm happy to be corrected!

Yes I do agree.

Losses fall into two categories, direct and indirect/consequential (both "indirect" and "consequential" mean the same thing, they are interchangeable).

Direct losses arise naturally, according to the usual course from the breach of the contract

Indirect losses are too unusual to be recovered as direct loss. 

Indirect losses consider actual knowledge, i.e what is known from being stated and imputed knowledge, i.e what can be gleaned, by the standards of a reasonable person, from the whole situation. 

In order to claim indirect losses they also mustn't be too remote. 

You could say that an airline doesn't know if the passenger is going to stay at an £80 hotel, a £10,000 hotel or crash on their friends sofa so perhaps the loss is not known, perhaps the loss is considered too remote. If that is the answer grand, I'm just looking for the working out  

When you look at user1977 question about buses, if you catch a number 47 from the high street as a leg of your journey to the airport, the situation that you will be late for your flight is not known, if you hire a bus as part of say a park and ride scheme that only goes to the airport then the bus company know you are going to the airport but they probably have most situations covered and given how early you need to be at the airport are far less likely to cause you to miss your flight.

RefluentBeans said:

As you say, I find it hard to believe that consequential losses would/should be covered given so few contracts include them. The issue is the butterfly effect - my printer stops working, so I can’t print off an important form for the bank, and the bank charges me, which I can’t afford, and so the bank forecloses on my house. Whilst this is a very extreme example, at what point does Argos stop becoming responsible for the product they sold me? 

As above the loss has to be foreseeable, the Argos example clearly isn't  

RefluentBeans said:

The prevailing thought on these boards, and generally across the UK, is that consequential losses are not expected to be paid unless there is gross negligence from one party. And a flight being cancelled or delayed certainly doesn’t fall into that gross negligence, unless very last minute and very disruptive. And even then, I think you’d be lucky to get anything more than the nights you’ve been delayed by back. 

It's covered in detail here

https://hallellis.co.uk/remoteness-reasonably-foreseeable-damages/

but (unless I'm missing it) a requirement for there to be gross negligence isn't mentioned? 

Grumpy_chap said:

Do the specific flight and travel regulations exclude CRA?

As far as I can see the CAA state the CRA applies to airlines  

user1977

the_lunatic_is_in_my_head said:

user1977 said:

Would the bus company which is meant to take me to the airport also be liable for consequential loss?

I don't know but can you advise why they wouldn't be?

I expect a starting point would be that they've explicitly excluded such liability in their conditions of carriage:

The Company uses all reasonable means to maintain the Local Services published in its timetables but accepts no liability for any loss, damage, or inconvenience arising from the failure to do so.

Otherwise who would dare run a bus service to an airport, knowing that if the bus breaks down they could face claims of hundreds/thousands from every passenger who has missed their flights.

Same principle would apply to more mundane things - if I have my wages docked because I turn up late at work, or miss some sort of live performance, can I claim it from the bus company?

If this were at all a thing, we'd know about it.

the_lunatic_is_in_my_head

user1977 said:

the_lunatic_is_in_my_head said:

user1977 said:

Would the bus company which is meant to take me to the airport also be liable for consequential loss?

I don't know but can you advise why they wouldn't be?

I expect a starting point would be that they've explicitly excluded such liability in their conditions of carriage:

The Company uses all reasonable means to maintain the Local Services published in its timetables but accepts no liability for any loss, damage, or inconvenience arising from the failure to do so.

Otherwise who would dare run a bus service to an airport, knowing that if the bus breaks down they could face claims of hundreds/thousands from every passenger who has missed their flights.

Same principle would apply to more mundane things - if I have my wages docked because I turn up late at work, or miss some sort of live performance, can I claim it from the bus company?

If this were at all a thing, we'd know about it.

As these are consumer contracts for services they carry the implied term that the service must be carried out with due care and skill, if it were demonstrated not to be the case AFAIK a liability waiver wouldn't be valid as the terms can not contract out the obligations under the CRA.

Grumpy_chap

the_lunatic_is_in_my_head said:

Grumpy_chap said:

Do the specific flight and travel regulations exclude CRA?

As far as I can see the CAA state the CRA applies to airlines  

This thread is raising some very good questions about general consumer rights vis-a-vis travel and consequential (indirect) losses in the event of  flight cancellation.  

I note the comments about the loss being "too remote" but loss of a hotel night might be reasonably expected in the event of a flight not proceeding as booked.

I just see some practical logic that there are specific remedy processes established (in some cases by statute) in the event of planned travel not proceeding as expected:

• Trains = delay repay
• Flight only = EU261 (and as replaced in UK law post-Brexit)
• Package Holiday = 2018 PTRs

One might reasonably assume that if relying on general consumer rights was adequate (and struck an appropriate balance between consumer and provider), then there would be no need for these product-specific remedies to be in place.
Perhaps, in the case of flights, it is the international element that makes general consumer rights unfit for purpose?  I ask, as I have not checked, are flight bookings with Ryan Air governed by UK law given the company is based in EIRE?  Is the contract formed under Irish law?  (Similar question could be asked for any airline not UK company.)

If there are specific statutory remedies, but then general consumer rights (CRA) are to apply, the specific remedies seem superfluous and could be struck out.

user1977

the_lunatic_is_in_my_head said:

user1977 said:

the_lunatic_is_in_my_head said:

user1977 said:

Would the bus company which is meant to take me to the airport also be liable for consequential loss?

I don't know but can you advise why they wouldn't be?

I expect a starting point would be that they've explicitly excluded such liability in their conditions of carriage:

The Company uses all reasonable means to maintain the Local Services published in its timetables but accepts no liability for any loss, damage, or inconvenience arising from the failure to do so.

Otherwise who would dare run a bus service to an airport, knowing that if the bus breaks down they could face claims of hundreds/thousands from every passenger who has missed their flights.

Same principle would apply to more mundane things - if I have my wages docked because I turn up late at work, or miss some sort of live performance, can I claim it from the bus company?

If this were at all a thing, we'd know about it.

As these are consumer contracts for services they carry the implied term that the service must be carried out with due care and skill, if it were demonstrated not to be the case AFAIK a liability waiver wouldn't be valid as the terms can not contract out the obligations under the CRA.

So where are all the cases arising from such breaches of due care and skill?

eskbanker

the_lunatic_is_in_my_head said:

eskbanker said:

No, I wasn't referring to customer's rights specifically after a delay or cancellation, but the generic flexibility offered (at a price).

If you mean the option to pay an extra £50 or so for flexibility then I don't think that means those who opt not to can't claim the contract they have is balanced, hotels do the same thing and whilst paying the extra gets you a no fuss refund, not paying the extra doesn't necessarily mean you have to pay 100%.

I don't think that's directly relevant here - the question is whether or not there's an obligation for contracts to offer exact equivalent terms on both sides in order to avoid being deemed unfair.

the_lunatic_is_in_my_head said:

The CAA has issued guidance on consumer's breaching their contract and either refenced or paralleled (can't remember which) the CMA guidance with regards to finding another customer, etc. Whilst they didn't go so far as to suggest this may be practical for airlines they did note the aspects of the ticket price the airline will not have to pay for (such as taxes) should be refunded for a "non-refundable" flight. 

Do you have links to what you're thinking of, and preferably some citation of the most applicable content for this discussion?  I don't think anyone would dispute that taxes should be refunded if a flight isn't taken, but again I don't think that's particularly relevant in the context of equitable contractual terms and the obligations on airlines to offer replacement flights if cancelling one - Ryanair have apparently fulfilled their obligations to OP by offering an alternative flight and the question is whether or not there's any basis on which they can be held liable for an independently booked hotel reservation.

PHK

the_lunatic_is_in_my_head said:

PHK said:

Yes, it does. You are right. 

Unfortunately in this forum people often quote things off the top of their head or on the basis of a quick Google or partial misunderstanding of laws.

I've been reading this forum for a long time, not related to this thread but in general, some advice is what posters think is right based on their views/experience/morals rather than what is factually correct.

If I'm unsure on something I'll always (try to) say, if I Google for a bit info again I'll say, I'd rather be transparent about a lack of knowledge than mislead someone looking for help and I'm always happy to be corrected where wrong.

PHK said: I think they sometimes forget that people come here for advice not for speculation. 

Indeed but if the advice given is incorrect that doesn't help either, hence the discussion part of a discussion forum

eskbanker said:

If a UK/EU airline cancels a flight, then there's a regulatory obligation for them to remedy this by either replacing or refunding (the choice being the customer's), and the customer also has the right to unilaterally vary the flight booking, albeit for an admin fee, so isn't there an argument that this might satisfy the criteria for equitable contractual rights?

I wonder if that depends on whether the consumer has those rights without a delay occurring, saying the consumer can unilaterally vary the flight booking but only after the trader has first varied the contract again doesn't appear balanced. 

Grumpy_chap said:

This is a sufficiently frequent event that the travel insurers would see the value in bringing a test case - just because the insurer has paid out to an individual does not preclude the insurer from claiming recovery from a third party - the airline in this case.

If the insurers did bring a test case and it was found the airline was liable wouldn't that significantly devalue their product by negating one of it's notable benefits? 

But the advice wasn't wrong, you added speculation and continue to do so. 

I'm all for a discussion about theoreticals but it demonstrably causes confusion to people who need assistance. 

the_lunatic_is_in_my_head

eskbanker said:

If you mean the option to pay an extra £50 or so for flexibility then I don't think that means those who opt not to can't claim the contract they have is balanced, hotels do the same thing and whilst paying the extra gets you a no fuss refund, not paying the extra doesn't necessarily mean you have to pay 100%.

I don't think that's directly relevant here - the question is whether or not there's an obligation for contracts to offer exact equivalent terms on both sides in order to avoid being deemed unfair.

Sorry maybe we're getting posts crossed a little when you mentioned earlier

eskbanker said:

If a UK/EU airline cancels a flight, then there's a regulatory obligation for them to remedy this by either replacing or refunding (the choice being the customer's), and the customer also has the right to unilaterally vary the flight booking, albeit for an admin fee, so isn't there an argument that this might satisfy the criteria for equitable contractual rights?

If the that option to vary the flight only occurs after the airline announces a change then I don't think that is balanced. 

Section 63 of the CRA stipulates

https://www.legislation.gov.uk/ukpga/2015/15/section/63

(4)A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.

(5)Whether a term is fair is to be determined—

(a)taking into account the nature of the subject matter of the contract, and

(b)by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.

The CRA then gives two areas where a term can be tested for fairness in Schedule 2:

https://www.legislation.gov.uk/ukpga/2015/15/schedule/2

A term which has the object or effect of permitting the trader to retain sums paid by the consumer where the consumer decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the trader where the trader is the party cancelling the contract.

A term which has the object or effect of requiring that, where the consumer decides not to conclude or perform the contract, the consumer must pay the trader a disproportionately high sum in compensation or for services which have not been supplied.

This relates to those situations such as hotels, airlines, wedding events, etc where you'll typically see the word "non-refundable" in relation to an advanced pre-payment (often referred to as a deposit but the term "deposit" isn't really useful as a true deposit can be retained but a true deposit would be booking a wedding band for £500 and paying a £30 reservation fee). 

The CMA covers that here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

Too much to quote so page 87 onwards for a couple of pages. 

Basically if the term is unfair it's void and then the ordinary position applies which is costs or loss of profits. 

The CAA covered this here (I think it's the doc I read previously)

https://www.caa.co.uk/publication/download/17375

Again too much to quote but 28-33.

This is all in relation to the consumer breaching the contract and only covers the cost of the ticket, i.e you book a "non-refundable" flight for say £250 and simply change your mind where you have no right to do so you don't necessarily have to pay £250. 

If however those terms about the airline being able to amend the flight but not you, were classed as unfair they would be void and then when the airline does amend the flight they'd be in breach of contract. 

(This assumes the term being void results in neither being able to amend rather than both, as above I'm not sure on that point but if both could it would kind of defeat the point of a contract).

As above all contracts for services have the implied term of due care and skill which when not carried out would lead to a breach of contract resulting in the idea of indirect loss as detailed above once we disregard terms allowing the airline to amend but not the consumer. 

Of course if a contract says both parties can amend or cancel the contract up to a certain point then that would be fair and both can walk away any time up to the point stated. 

user1977 said:

So where are all the cases arising from such breaches of due care and skill?

For years posters were told if they booked a courier and didn't pay for "insurance" but the parcel went missing tough luck then this thread appeared:

https://forums.moneysavingexpert.com/discussion/6442661/couriers-lost-parcels-and-unfair-terms

Granted travel is more of a common topic (away from the boards in terms of news, other advice sites) but that's because of the extra legislation. 

When you Google for a bit more info on any topic it's very easy to find the law repeated on various websites but when there's a technical area with ambiguity it seems very difficult to find clarification, perhaps that's because it's down to the courts, perhaps that's because those who studied the law for years aren't giving such info away for free on the internet.  

Again I may very well be wrong, I don't think it hurts to ask why though  

Grumpy_chap said:

I ask, as I have not checked, are flight bookings with Ryan Air governed by UK law given the company is based in EIRE?  Is the contract formed under Irish law?  (Similar question could be asked for any airline not UK company.)

Yes it seems covered by the laws of Ireland, in terms of consumer rights legislation it should be the same, the guidance explaining the variable areas would probably need to come from the EU (or Ireland) rather than the CMA. 

No idea what Ireland has compared to common law and damages here. 

MobileSaver

the_lunatic_is_in_my_head said:

RefluentBeans said:

The prevailing thought on these boards, and generally across the UK, is that consequential losses are not expected to be paid unless there is gross negligence from one party. And a flight being cancelled or delayed certainly doesn’t fall into that gross negligence, unless very last minute and very disruptive. And even then, I think you’d be lucky to get anything more than the nights you’ve been delayed by back. 

https://hallellis.co.uk/remoteness-reasonably-foreseeable-damages/

but (unless I'm missing it) a requirement for there to be gross negligence isn't mentioned?

I think you have answered your own question.

the_lunatic_is_in_my_head said:

As above all contracts for services have the implied term of due care and skill which when not carried out would lead to a breach of contract

Negligence is the opposite of using reasonable care and skill so it doesn't need to be specifically mentioned as it is simply an implied term used to describe breaching the implied due care and skill contract term...

the_lunatic_is_in_my_head

MobileSaver said:

the_lunatic_is_in_my_head said:

RefluentBeans said:

The prevailing thought on these boards, and generally across the UK, is that consequential losses are not expected to be paid unless there is gross negligence from one party. And a flight being cancelled or delayed certainly doesn’t fall into that gross negligence, unless very last minute and very disruptive. And even then, I think you’d be lucky to get anything more than the nights you’ve been delayed by back. 

https://hallellis.co.uk/remoteness-reasonably-foreseeable-damages/

but (unless I'm missing it) a requirement for there to be gross negligence isn't mentioned?

I think you have answered your own question.

the_lunatic_is_in_my_head said:

As above all contracts for services have the implied term of due care and skill which when not carried out would lead to a breach of contract

Negligence is the opposite of using reasonable care and skill so it doesn't need to be specifically mentioned as it is simply an implied term used to describe breaching the implied due care and skill contract term...

Thanks @MobileSaver That makes sense.

So with regards to "gross" negligence mentioned, a quick Google suggests for it to be "gross" the bar is set very high to the point of being "jawdropping" where as negligence is beyond the actions of a reasonable person (as you say care and skill similar to the CRA) so I don't see the actions have to be "gross" for direct or indirect losses to apply but again always happy to be corrected.