Flight delay and cancellation compensation, Thomas Cook ONLY
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My daughter was delayed last July for 8 hours from Antalya back to Gatwick - this was because of lightening strike on the plane coming in to take them back. I assume I don't have a case because it's an 'act of god'? Can anyone please confirm this.
Thanks.0 -
palomino2424 wrote: »I assume I don't have a case because it's an 'act of god'?
You don't need to assume anything. If you read the FAQs you'll find the answer to your specific question and lots of very helpful related information.0 -
Question- what sort of evidence can you use in court? info from the internet? manuals? mag articles? case law? i think this is called hearsay evidence, would this be correct? I know you would need to put it down fresh in a document but is this ok for court use?
Also can anybody give advice about a statement of case? this is setting out your claim but is this also about putting your case across? doe anyone have any examples? i know it's a lot to ask but it would help many people on here for this. Some have already done this and it's been great to know thanks to them, don't know the user names but i will thank them when i am near the end of all this ans I will post all my claim doc to help others. Thanks in advance if my question can be answered.:)
I have articles from the bar council and other justice docs on this but it does get confusing! nothing is simple, but its a good learning curve.Check out Vaubans Flight Delay Guide, you will be glad you did....
:):)
Thomas Cook Claim - Settled Monarch Claim - Settled0 -
Question- what sort of evidence can you use in court? info from the internet? manuals? mag articles? case law? i think this is called hearsay evidence, would this be correct? I know you would need to put it down fresh in a document but is this ok for court use?
Also can anybody give advice about a statement of case? this is setting out your claim but is this also about putting your case across? doe anyone have any examples? i know it's a lot to ask but it would help many people on here for this. Some have already done this and it's been great to know thanks to them, don't know the user names but i will thank them when i am near the end of all this ans I will post all my claim doc to help others. Thanks in advance if my question can be answered.:)
I have articles from the bar council and other justice docs on this but it does get confusing! nothing is simple, but its a good learning curve.
Evidence in Court should only consist of fact/case law such as 261/2004, Huzar or other cases to support your position/defence. Internet, news articles can be included but best included as supplementary information.
Transcript of a recent case may give you an idea for setting out your statement.0 -
Question- what sort of evidence can you use in court? info from the internet? manuals? mag articles? case law? i think this is called hearsay evidence, would this be correct? I know you would need to put it down fresh in a document but is this ok for court use?
Very interesting question.
I think Section 1(1) of the Civil Evidence Act 1995 may be a good starting point. It says "In civil proceedings evidence shall not be excluded on the ground that it is hearsay."
"'hearsay' means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated ...".
http://www.legislation.gov.uk/ukpga/1995/38/section/1
I suppose, in this context, a "statement" can be anything - including the materials you mention.
I've not read the whole act. I think your starting point should be to play devil's advocate and ask yourself what would you say if you were the defence and presented with, say, a magazine article. If the magazine was the Law Society Gazette, I think the defence might struggle to rubbish it. If it was a reader's letter from Nuts 'magazine', it wouldn't appear to a layman to have great credibility.
The same is true of the internet. With all due respect to all the active posters on the Flight Compensation thread, saying that "Tom, !!!!!! or Harriet on MSE says ..." will carry little weight. A signed statement from a passenger on the same flight might.
At the end of the day, your case is about (1) what happened and (2) what the law says. ( I'm not sure if "the law", ie the text of Reg 261/2004 and of cases like Wallentin and Huzar, are covered by the rules of evidence - or whether that just applies to the facts of what happened.)
I'll be interested to hear a more informed view than mine.0 -
Thanks for the info, I was looking more at the manufactures spec's logs and instructions, engineer, pilots forums, training. Also regulatory body evidence ie. FAA the CAA are naff they don't give you jack, mag articles written by proffesionals in the field employed by investigation authorities. The main reason is I want to prove that the fault was not EC and it happens all the time, and present this to court as well as legal cases. The defence can bring in a witness engineer so i want to question his/her reasoning with other opinions.Check out Vaubans Flight Delay Guide, you will be glad you did....:):)
Thomas Cook Claim - Settled Monarch Claim - Settled0 -
Thanks for the info, I was looking more at the manufactures spec's logs and instructions, engineer, pilots forums, training. Also regulatory body evidence ie. FAA the CAA are naff they don't give you jack, mag articles written by proffesionals in the field employed by investigation authorities. The main reason is I want to prove that the fault was not EC and it happens all the time, and present this to court as well as legal cases. The defence can bring in a witness engineer so i want to question his/her reasoning with other opinions.
I see what you are trying to do and forewarned is forearmed. Having said that, to some extent you are playing them at their own game by arguing about the frequency of a particular fault.
Para 26 of Wallentin says (my emphasis):
"technical problems are covered by those exceptional circumstances to the extent that they stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control"
That basically says, forget what the technical problem was, what matters is the event(s) that caused the problem. If it was wear and tear, unexpected failure (excluding reported manufacturing defect) or anything else that happens in the routine course of operating a aircraft it's not EC. It doesn't matter if it's a blocked toilet or a misaligned outboard turbo thrust flange valve bracket edge trailing flap aileron unit which only fails once every time Halley's comet comes round - it's not EC!
Judge Platts in Huzar summarize the same point - and doesn't even make mention of what the fault was:
"Against that background I am persuaded that in this case the cause of delay or cancellation was the need to resolve the technical problem which had been identified. That being the case, in my judgment it does not matter how the technical problem was identified. Whether it was identified by routine maintenance (as was the case in Wallentin) or as a result of a warning light during flight (as in the present case) seems to me to be irrelevant. Equally and for that very reason the fact that it was unexpected and unforeseeable is also irrelevant. The reality is that once a technical problem is identified it is inherent in the normal activity of the air carrier to have to resolve that technical problem. Further, the resolution of the problem, as was demonstrated in this case, is entirely within the control of the carrier."
Whatever else you do, just make sure you don't lose sight of the law which supports your interpretation!
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I see what you are trying to do and forewarned is forearmed. Having said that, to some extent you are playing them at their own game by arguing about the frequency of a particular fault.
Para 26 of Wallentin says (my emphasis):
"technical problems are covered by those exceptional circumstances to the extent that they stem from events which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control"
That basically says, forget what the technical problem was, what matters is the event(s) that caused the problem. If it was wear and tear, unexpected failure (excluding reported manufacturing defect) or anything else that happens in the routine course of operating a aircraft it's not EC. It doesn't matter if it's a blocked toilet or a misaligned outboard turbo thrust flange valve bracket edge trailing flap aileron unit which only fails once every time Halley's comet comes round - it's not EC!
Judge Platts in Huzar summarize the same point - and doesn't even make mention of what the fault was:
"Against that background I am persuaded that in this case the cause of delay or cancellation was the need to resolve the technical problem which had been identified. That being the case, in my judgment it does not matter how the technical problem was identified. Whether it was identified by routine maintenance (as was the case in Wallentin) or as a result of a warning light during flight (as in the present case) seems to me to be irrelevant. Equally and for that very reason the fact that it was unexpected and unforeseeable is also irrelevant. The reality is that once a technical problem is identified it is inherent in the normal activity of the air carrier to have to resolve that technical problem. Further, the resolution of the problem, as was demonstrated in this case, is entirely within the control of the carrier."
Whatever else you do, just make sure you don't lose sight of the law which supports your interpretation!
True, you put me back on track, the law is the law. This is what they try to do with you and make you question your reasoning. thanks for reminding me.Check out Vaubans Flight Delay Guide, you will be glad you did....:):)
Thomas Cook Claim - Settled Monarch Claim - Settled0 -
First post so please be gentle.
Started small claims procedure, received TC's defence, received court date and busy preparing court bundle.
Basically flight back to Manchester from Cancun Nov 2012 delayed 24hrs due to outbound flight suffering engine problems and having to return to UK.
Now TC's defence is almost identical to that in post #3699 in which Vauban provides an excellent response, my question is should I include a response to TC's defence in the court bundle , or leave that until the hearing?
Many thanks in advance.0
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