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  • FIRST POST
    • Vauban
    • By Vauban 19th Aug 14, 8:51 PM
    • 4,729Posts
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    Vauban
    Comments Needed: Draft Guide to Claiming Flight Delay Compensation
    • #1
    • 19th Aug 14, 8:51 PM
    Comments Needed: Draft Guide to Claiming Flight Delay Compensation 19th Aug 14 at 8:51 PM
    Update from 1 November: I have revised the guide, following the Supreme Court's decisions on Huzar and Dawson. I have also updated with some other developments since the Guide was first written.

    https://www.dropbox.com/s/w6hmpy5ysxpck6k/Vauban%27s Guide to Claiming Flight Delay Compensation.pdf?dl=0

    As ever, happy to take on board any comments and keep revising.

    Perhaps it's too much to hope, but maybe this guide might not be needed for too much longer? Here's hoping!

    PtLV

    Edit: I have fixed the link!
    Last edited by Vauban; 25-11-2015 at 7:47 AM.
Page 1
    • JPears
    • By JPears 19th Aug 14, 10:53 PM
    • 4,785 Posts
    • 1,298 Thanks
    JPears
    • #2
    • 19th Aug 14, 10:53 PM
    • #2
    • 19th Aug 14, 10:53 PM
    Excellent. Good work. Perhaps the veterans on here should look at the regular newbies FAQs/postings and see if anything needs to be added
    If you're new. read The FAQ and Vauban's Guide

    The alleged Ringleader.........
    • 111KAB
    • By 111KAB 20th Aug 14, 6:53 AM
    • 3,640 Posts
    • 1,479 Thanks
    111KAB
    • #3
    • 20th Aug 14, 6:53 AM
    • #3
    • 20th Aug 14, 6:53 AM
    Vauban - well done for both writing and spending the time to sort. As mentioned on numerous occasions tenacity and patience are required in abundance to take on the airlines and you have displayed this in drafting this out. Try and get included as a sticky and once in final form let me know and I will arrange for inclusion on any other forums by way of a link.
    • Dr Watson
    • By Dr Watson 20th Aug 14, 12:32 PM
    • 446 Posts
    • 218 Thanks
    Dr Watson
    • #4
    • 20th Aug 14, 12:32 PM
    Great work
    • #4
    • 20th Aug 14, 12:32 PM
    Vauban- my friend, excellent work as always, as 111KAB states let's get it made as a sticky for all the new claimants that find these threads.
    One point -my post 622 has become post 569 on the Ryanair thread after Centipedes departure, if you could edit your link to this.
    I'm always auto alerted to the Ryanair thread when new posts arrive- my work there continues....as you have heard, their silly games continue..
    Speak soon.
    Successfully sued Ryanair in 2013/14...and have been 'helping' litigants since then.

    Current known score:-
    Dr Watson 35 - 0 Ryanair / Ince and Co

    Go to post 622 on the Ryanair thread to read how to sue them safely.
    • Vauban
    • By Vauban 20th Aug 14, 2:27 PM
    • 4,729 Posts
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    Vauban
    • #5
    • 20th Aug 14, 2:27 PM
    • #5
    • 20th Aug 14, 2:27 PM
    Thanks for the comments so far.

    Dr. W: the link I've posted seems to work okay for me - let me know if it doesn't for you.

    I have added an extra paragraph on the CAA - how could I have forgotten them? Let me know if you think it is incorrect or unfair in any way:

    5.12 Passengers may be tempted to approach the CAA for assistance, but the anecdotal experience of people on this forum is that this has been mostly a waste of time - or even damaging to their case. The CAA is funded by the airline industry, and it has failed to press airlines to respect their obligations under the Regulation. They were instrumental in drafting “Guidelines” on extraordinary circumstances which favoured the airlines and did not reflect the true legal position - consequently depriving passengers of their legal rights. Even when the matter was clarified by the Court of Appeal, the CAA initially attempted to claim that the judgement only applied to new delays . In those cases where the CAA have agreed that a passenger should be compensated, there are plenty of examples of the airline simply ignoring the CAA’s request. So they add no real value in this process at all and you are advised to ignore them – like the airlines do!
    I also thought I would add at the end a list of resources and external links. Do please offer additions to these:

    EXTERNAL LINKS OF INTEREST

    THE RELEVANT LAW:-

    Regulation 261/2004 – This is the original Regulation, that came into force in early 2005:
    http://eur-lex.europa.eu/resource.html?uri=cellar:439cd3a7-fd3c-4da7-8bf4-b0f60600c1d6.0004.02/DOC_1&format=PDF

    The Wallentin-Hermann Judgement: This is the European Court judgement from December 2008 that ruled technical problems were not extraordinary, unless they stemmed from causes “not inherent in the operation of the airline” and “beyond its actual control”. It also defined the “all reasonable measures” that an airline must take to prevent delay, even from extraordinary circumstances, as everything short of “intolerable sacrifice”: http://curia.europa.eu/juris/document/document.jsf?text=&docid=73223&pageIndex=0&doclang =EN&mode=lst&dir=&occ=first&part=1&cid=226657

    The Sturgeon Judgement – This is a European Court judgement from November 2009 that ruled that passengers delayed for three hours or more should be treated identically under the Regulation as those whose flights were cancelled. It also reinforced the Wallentin ruling on technical failures: http://curia.europa.eu/juris/document/document.jsf?text=&docid=73703&pageIndex=0&doclang =EN&mode=lst&dir=&occ=first&part=1&cid=226470

    The Eglitis Judgement – This European Court judgement from May 2011 said that airlines must take account of the risk of delay caused by extraordinary circumstances and consequently provide for a certain reserve time to allow it, if possible, to operate the flight in its entirety once any extraordinary circumstances have come to an end:
    http://curia.europa.eu/juris/document/document.jsf?text=&docid=82052&pageIndex=0&doclang =EN&mode=lst&dir=&occ=first&part=1&cid=226994

    The Nelson Judgement – This is the European Court judgement from October 2012 which essentially reaffirmed the Sturgeon judgement:
    http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62010CJ0581:EN:HTML

    The Finnair Judgement – This European Court judgement, also from October 2012, ruled that ‘extraordinary circumstances’ resulting in an air carrier rescheduling flights cannot give grounds for denying boarding on those later flights or for exempting that carrier from its obligation to compensate a passenger to whom it denies boarding on such a flight (ie so-called “knock-ons”):
    http://curia.europa.eu/juris/document/document.jsf?docid=128005&mode=req&pageIndex=1&dir =&occ=first&part=1&text=&doclang=EN&cid=227374

    The More Judgement – This European Court judgement from November 2012 confirmed that the time limits for claimants to claim under the Regulation were determined by national laws on statutory limitation (ie 6 years in England/Wales, 5 years in Scotland):
    http://curia.europa.eu/juris/document/document.jsf?text=&docid=130243&pageIndex=0&doclan g=EN&mode=lst&dir=&occ=first&part=1&cid=227186

    The McDonagh Judgement – The European Court ruled in January 2013 that even if extreme “extraordinary circumstances” (the ash-cloud from the Icelandic volcano) airlines still have a duty of care to provide for food and accommodation for stranded passengers:
    http://curia.europa.eu/juris/document/document.jsf?text=&docid=133245&pageIndex=0&doclan g=EN&mode=lst&dir=&occ=first&part=1&cid=228357

    The Dawson Judgement (Judge Yelton) – Cambridge County Court ruled in July 2013 that the limitation period for bringing legal action against an airline under the Regulation was six years, not two as claimed by Thomson:
    http://www.bottonline.co.uk/wp-content/uploads/2013/09/Judgment.pdf

    The Huzar Judgement (Judge Platts) – Manchester County Court ruled in October 2013 that just because a technical problem was unexpected or unforeseen did not make it “extraordinary”, and thus Jet2.com were liable to pay Mr. Huzar compensation:
    http://www.bottonline.co.uk/wp-content/uploads/2013/10/179933236-Jet2-appeal.pdf

    The Dawson Judgement (Court of Appeal) – The Law Lords ruled in June 2014 that the UK Courts were bound by the More ruling that the Regulation existed outside of the Montreal Convention, and therefore that six years, not two, was the limitation period under English law:
    http://www.bottonline.co.uk/wp-content/uploads/2014/06/Dawson%20v%20Thomson%20Airways%20Approved%20Judgme nt.pdf

    The Huzar Judgement (Court of Appeal) – The Law Lords also ruled in June 2014 that, though Judge Platts reasoning was incorrect, Mr. Huzar’s case against Jet2.com was upheld because technical problems were generally inherent in the operation of an airline (the Wallentin test):
    http://www.bottonline.co.uk/wp-content/uploads/2014/06/img-611094038-0001.pdf


    INTERESTING ARTICLES:-

    Travel Law Group Case Updates – From July 2014, commenting on the Huzar and Dawson Court of Appeal judgements: http://www.9sjs.com/assets/files/travel_law_case_update_july_2014.pdf

    John Balfour, EU Air Passenger Rights - Focus on Regulation 261/2004 – Written in 2011, it offers an interesting commentary on the Wallentin and Sturgeon judgements:
    http://whoswholegal.com/news/features/article/28878/eu-air-passenger-rights-focus-regulation-2612004

    Bird & Bird: Denied Boarding Regulations – Are aircraft technical problems “extraordinary circumstances”? – Written in 2009 this article (which no longer appears on the 2Birds website, oddly) offers the view that the Wallentin judgement means technical problems are not extraordinary:
    http://www.lexology.com/library/detail.aspx?g=cff38104-f340-404b-aa41-157ca2d7a292

    Daily Mail reports on passengers successes:

    http://www.dailymail.co.uk/news/article-2338887/Our-victory-thousands-left-stranded-flight-delays-Couples-payout-26-hour-ordeal.html

    http://www.thisismoney.co.uk/money/holidays/article-2567703/Man-won-3-200-flight-delay-compensation-Monatch-court-case.html
    Last edited by Vauban; 20-08-2014 at 2:39 PM.
    • David_e
    • By David_e 20th Aug 14, 3:57 PM
    • 1,490 Posts
    • 326 Thanks
    David_e
    • #6
    • 20th Aug 14, 3:57 PM
    • #6
    • 20th Aug 14, 3:57 PM
    Excellent effort V. Just a pity those it would help won't read it!
    • Dr Watson
    • By Dr Watson 20th Aug 14, 5:19 PM
    • 446 Posts
    • 218 Thanks
    Dr Watson
    • #7
    • 20th Aug 14, 5:19 PM
    • #7
    • 20th Aug 14, 5:19 PM
    [QUOTE=Vauban;66309511]Thanks for the comments so far.

    Dr. W: the link I've posted seems to work okay for me - let me know if it doesn't for you.

    I have added an extra paragraph on the CAA - how could I have forgotten them? Let me know if you think it is incorrect or unfair in any way:

    Vauban,
    The link does still work, not sure how but the post has shifted in the RA thread?
    But as long as it works,
    You may like to include this 'media tart' to your news links:-

    http://www.theguardian.com/money/2014/apr/28/flight-delays-compensation-ryanair-airlines
    Successfully sued Ryanair in 2013/14...and have been 'helping' litigants since then.

    Current known score:-
    Dr Watson 35 - 0 Ryanair / Ince and Co

    Go to post 622 on the Ryanair thread to read how to sue them safely.
    • legal magpie
    • By legal magpie 21st Aug 14, 9:56 AM
    • 1,124 Posts
    • 474 Thanks
    legal magpie
    • #8
    • 21st Aug 14, 9:56 AM
    • #8
    • 21st Aug 14, 9:56 AM
    I have saved Vauban's brilliant work as a word document for ease of amendment. Because of the way in which the threads work on this site, can those who know about these things perhaps make the final version into a closed thread of its own so that it won't be lost in the dozens of people who comment later.
    • razorsedge
    • By razorsedge 21st Aug 14, 11:20 AM
    • 344 Posts
    • 145 Thanks
    razorsedge
    • #9
    • 21st Aug 14, 11:20 AM
    • #9
    • 21st Aug 14, 11:20 AM

    2.0 Are you due compensation?
    c) Was the incident within the last six years?


    6.10 You should ensure that the other side hand over their documents when instructed, and bring it to the courtís attention if they do not.
    Originally posted by Vauban
    For 2.0 c) perhaps add 'because six years is the current legal time limit to start Court action in England and Wales (if the airline refuse to pay) but a limit of five years applies if you are going to be using the Scottish Courts.

    Can somebody confirm the time limit for Northern Ireland?

    For 6.10 perhaps add something to manage expectations about the Court process in that many airlines do not follow Court procedures or Court ordered timelines (not just about the 'bundle' exchange) but some Courts will still let them off without penalty or sanction.
    The above is just my opinon - which counts for nowt! You must make up your own mind.
    • JPears
    • By JPears 22nd Aug 14, 12:04 PM
    • 4,785 Posts
    • 1,298 Thanks
    JPears
    bump to top
    If you're new. read The FAQ and Vauban's Guide

    The alleged Ringleader.........
    • Vauban
    • By Vauban 24th Aug 14, 10:49 AM
    • 4,729 Posts
    • 2,094 Thanks
    Vauban
    Okay. Many thanks to you all for these useful comments. I have revised accordingly, and turned into a pdf document for ease of reading:

    http://db.orangedox.com/GdfSa4xUZdZI5GJadr/Vauban's%20Guide%20to%20Claiming%20Flight%20Delay% 20Compensation.pdf

    I can still make subsequent changes if folk have further suggestions to make.

    Note sure how many "newbies" will actually read this, but at least my conscience is now clear!
    Last edited by Vauban; 25-08-2014 at 2:42 PM.
    • SueDerbyshire
    • By SueDerbyshire 24th Aug 14, 1:31 PM
    • 232 Posts
    • 113 Thanks
    SueDerbyshire
    Vauban, I would like to start by saying thank you for all the effort you have put into this, this information is invaluable and a lot of claimants would not consider taking an airline to court if it wasn't for the information shared on this site from people like your good self and others that have kindly added to this informative post.

    Just a couple of points from me.

    When explaining about mediating, it would be useful to suggest that the claimant prepare carefully for the phone call and be confident in the use of the relevant case in law that they have quoted previously. I know you have mentioned that some airlines may test the resolve of the claimant, I understand your point here but seeing some of the questions asked on here, not sure some people will be fully prepared.

    Lastly, 6.12, you explain the formalities of the hearing being less formal than expected but you don't highlight the fact you may not need to attend the hearing at all. Just thought the fact that it sounds like you have to attend court may put some people of taking the airline to court.

    I hope the comments I have made are correct and that you don't mind me pointing these small things out.

    Thank you once again for all the effort you and others have put into this.

    Sue
    • Vauban
    • By Vauban 25th Aug 14, 8:43 AM
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    Vauban
    Sue,

    Many thanks for these helpful thoughts - and your kind comments.

    I'll expand the bit on mediation to include the points you make (I never went through mediation myself, though I agreed to it: Monarch's lawyer never "dialed in" on the agreed time/date, and then subsequently withdrew!).

    On the hearing, I'll also make the point that you may not have to attend the hearing. Clearly there's no hearing, for example, in the ESCP. And sometimes a judge will indicate s/he's happy to conduct a paper hearing only. But two points in return ...

    1) No one should start a small claims action unless they are reconciled to going before a judge if necessary (and not turning up to a hearing would be fatal to a claim, I imagine);

    2) It is generally to the advantage of the claimant to have an oral hearing, where they can challenge fallacious assertions made by the airline and expose their inconsistencies (I know Bigmama would agree with this!). In my case, the hearing was central to unravelling Monarch's defence - which the paperwork alone might not have done.

    In fact, perhaps it might be useful to make these points in the Guide?
    • legal magpie
    • By legal magpie 25th Aug 14, 10:55 AM
    • 1,124 Posts
    • 474 Thanks
    legal magpie
    I would endorse what Vauban says about going to a hearing. I would NEVER recommend asking the Judge to consider your representations on paper as however well you put things together your opponent may make a point which strikes favour but which, if you had been there, you might have been able to answer. This doesn't only apply to airline claims but to all cases.

    Other point about the small claims mediation service is that, in my experience it's a waste of time, again not just in airline cases. In an ideal world, the Court would adjourn to see if mediation works and if not fix a hearing date.

    But this has changed. The Court service has targets for the time from issue of the case to the date of the hearing. Time limits are all important to the authorities (I don't mean the Judges). If the hearing is delayed for mediation, the target is missed and it looks bad. So Judges are now told that even if they refer a case to mediation, they still have to fix a hearing date supposedly allowing sufficient time. The cuts in the mediation service mean that the hearing date often takes place before a mediator has even started. This assumes of course that both parties are prepared to mediate.

    If you are lucky to get a mediator, it's only over the phone and usually one quick call. Sorry to be so cynical but what was a great idea has fallen apart because of the cuts to the system and the authorities' mania for targets.
    JJ
    • Vauban
    • By Vauban 25th Aug 14, 11:53 AM
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    • 2,094 Thanks
    Vauban
    Great advice, JJ.

    Changes now made.

    Further comments still welcome.
    Last edited by Vauban; 25-08-2014 at 1:08 PM. Reason: Updated
    • SueDerbyshire
    • By SueDerbyshire 25th Aug 14, 1:52 PM
    • 232 Posts
    • 113 Thanks
    SueDerbyshire
    Once again, excellent points made by you both and I agree totally, especially on the notes about attending court.

    I had my European small claims procedure head on when making my point and I should have added that people may fear that they will have to travel to the relevant country to have their hearing heard, which could put people off but as you have already mentioned Vauban, this is not normally the case with this procedure. I should have stated this in my comment, sorry.

    Also, Legal Magpie, thank you for your comments on the Mediating process, I wasn't aware of this. However, if you are in the position, like I have been recently, the airline may decide to try and settle out of court and ring you themselves, this is what I am referring to and not the court mediating as you mentioned. I'm not sure how often this happens but obviously does, just as in my case. Maybe I should have made this clearer too, sorry.

    I think I will leave it to the experts from now on haha.

    Thank you for responding.

    Sue
    • Tyzap
    • By Tyzap 25th Aug 14, 2:00 PM
    • 2,094 Posts
    • 890 Thanks
    Tyzap

    Further comments still welcome.
    Originally posted by Vauban
    Hi Vauban,

    It's a great document and very well written, well done for having the inclination.

    Can I suggest that the CAA section could include a passage pointing out that although they have no powers of enforcement, which they often like to quote, they are not without any powers.

    They can impose a fine, of up to £5000, upon any airline that continually breaches the rules but have NEVER done so.

    This further emphasises the fact that the CAA should not be seen as fair or impartial when overseeing their paymasters, the airlines.
    • Vauban
    • By Vauban 25th Aug 14, 2:03 PM
    • 4,729 Posts
    • 2,094 Thanks
    Vauban
    Thanks Tyzap - very happy to make that point.

    I don't think anyone believes that the CAA couldn't do more to help passengers. As my late grandmother used to say, "can't means won't"!
    • Caz3121
    • By Caz3121 29th Aug 14, 11:34 AM
    • 12,393 Posts
    • 8,074 Thanks
    Caz3121
    bumping to the top - shame this is not a sticky
    • Vauban
    • By Vauban 30th Aug 14, 12:57 PM
    • 4,729 Posts
    • 2,094 Thanks
    Vauban
    There's a link to it from the one and only sticky. But even if it was more prominent, I'm not sure new folk would read it. I suspect everyone initially comes to this on the assumption that getting your compensation is relatively straightforward. And - of course - it should be. It's only when folk get their brush off that the complexity of the issue becomes apparent.

    Anyhow, since putting the guide on Orangedox a few days ago (which allows you to see how any times it's been downloaded from DropBox) I see that over 100 folk have downloaded it. So it's good that it's getting some use.

    Thanks again to all those who offered comments. I'll continue periodically to update it.
    Last edited by Vauban; 30-08-2014 at 1:04 PM.
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