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  • FIRST POST
    • benw2092
    • By benw2092 15th May 18, 4:25 PM
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    benw2092
    Have I got a right to compensation?
    • #1
    • 15th May 18, 4:25 PM
    Have I got a right to compensation? 15th May 18 at 4:25 PM
    I took a flight from London Heathrow to Manila back in February via Kuwait. The flight was due to have a layover in Kuwait of around an hour, before flying to Manila.

    There was a slight delay at Heathrow, but when I arrived in Kuwait we were delayed by 7 hours. I did not miss my connection, but the connection was delayed.

    Eventually I arrived in Manila just under 7 hours late so thought I had a case to claim.

    Kuwait Airways are saying that because the delay happened in Kuwait, I am not entitled to compensation.

    I believe this to be wrong as my understanding was that when booking on one ticket from a European airport, you're covered by the usual compensation rules. This is regardless where the delay happened, all that matters is whether you're delayed in reaching your final destination.

    Are Kuwait Airways right or should I take further action?
    Last edited by benw2092; 16-05-2018 at 11:48 AM.
Page 1
    • Justice13075
    • By Justice13075 15th May 18, 10:14 PM
    • 1,122 Posts
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    Justice13075
    • #2
    • 15th May 18, 10:14 PM
    • #2
    • 15th May 18, 10:14 PM
    Was this all with Kuwait airlines? What was the reason for the delay in Kuwait? What time were you scheduled to arrive in Manilla and what time did you actually arrive in Manilla. You are correct in the assumption that If it was on one ticket and the same airline you are due compensation for arriving at your final destination more than 3 hours late regardless if you had a layover. A recent case with Emirates has finally decided this issue. Put your flight details into bottonline and euclaim and see what they say.
    • JPears
    • By JPears 16th May 18, 9:00 AM
    • 3,663 Posts
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    JPears
    • #3
    • 16th May 18, 9:00 AM
    • #3
    • 16th May 18, 9:00 AM
    As Justice says, unless your delay in Kuwait was an EC (which usually means severe weather or ATC restrictions) Kuwait airlies are wrong as decided definitively in the CoA several months ago.
    If this is this case, you need to report them to the CAA for giving you incorrect information (I would call it blatant lying) to put you off claiming.
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    • benw2092
    • By benw2092 16th May 18, 10:34 AM
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    benw2092
    • #4
    • 16th May 18, 10:34 AM
    • #4
    • 16th May 18, 10:34 AM
    Thanks both.

    Here were my details.. Under one booking

    Original schedule
    Feb 22nd 2018
    KU102 - LHR to Kuwait (15.35 departure - 00:50 arrival)
    Feb 23rd 2018
    KU417 - Kuwait to Manila (02:00 departure - 16.30 arrival)

    Actual flight times
    Feb 22nd 2018
    KU102 - LHR to Kuwait (18.03 departure - 02.18 arrival)
    Feb 23rd 2018
    KU417 - Kuwait to Manila (08.00 departure - 22.35 arrival)

    This is what Kuwait airways said to me to reject my claim...

    Kindly note, compensation if payable is you misconnect in Kuwait , however in your case you did not misconnect and consequently you are not entitled to compensation.

    We refer you once again to the European Commission notice issued in Brussels on 10 June 2016, article 3 (1) (a) which states that only passengers who missed a connection are entitled to compensation.

    In your case you connected in Kuwait as it was your onward flight which was delayed.
    I went to the CAA and they said this...

    I have reviewed your complaint and I would like to explain that, on the face of it, EC Regulation 261/2004 does not provide a clear answer to the issue that you faced, I have set out below the CAA's view of the obligations set down by Regulation 261/2004 and EU and English case law.

    The issue of missed connections was considered by the Court of Justice of the European Union in the Folkerts case. The court found that if there was a delay on the initial flight that led the consumer to miss their connection at the connecting point and they arrived more than 3 hours late at their final destination, then compensation may apply. The Folkerts case confirmed that the delay to the initial flight did not have to amount to 3 hours, as long as it caused the passenger to miss their connecting flight and arrive at their final destination more than 3 hours late. The Court of Appeal in England and Wales heard the joined cases of Gahan v Emirates and Buckley v Emirates in July last year and also found that compensation may apply to missed connections. The EU and English cases focus on the same issue that the first flight was delayed and led to a missed connection. We consider that the Folkerts case and those of Gahan and Buckley do not apply to your own case as the facts are different.

    In your own case, your initial flight to Kuwait operated as planned and the second flight from Kuwait to Manilla was delayed. This would not be treated as a missed connection, but as a delay. It is not entirely clear whether EC Regulation 261/2004 was intended to cover this circumstance and therefore, we are unable to persuade Kuwait Airways to change their position in relation to your claim.

    It is of course still open to you to start court proceedings but it is entirely up to you to decide whether you wish to pursue this further.

    Please be advised that the legal limit to issue claims at Court is 6 years in England and Wales and 5 years in Scotland from the date of the incident. If your claim is nearing the legal limit, you may wish to consider legal action. If you are considering legal action, it will be important for you to bear in mind that Court action has to be started within the relevant time limit. The Court will not hear claims that have been lodged outside of this period.
    I still am not convinced by their answers.. any input appreciated!
    • JPears
    • By JPears 16th May 18, 11:56 AM
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    JPears
    • #5
    • 16th May 18, 11:56 AM
    • #5
    • 16th May 18, 11:56 AM
    I believe, that as usual, the CAA have misinterpreted the decision (in favour of the airlines) by the 3 judges in the CoA
    IN the summing up of the case, there are 3 points made by the judges. The first 2 are relevant, particularly the first:

    "
    1. In my judgment, the answer to these appeals is clear under EU law. There are three points of EU law which together lead me to reject the primary case for Emirates.
      1. What counts is delay in reaching the final destination
    2. The CJEU has held that the liability for compensation for delay depends on the delay in arriving at "the final destination". Where the carrier provides a passenger with more than one flight to enable him to arrive at his destination, the flights are taken together for the purpose of assessing whether there has been three hours' or more delay. This is established by Sturgeon and Folkerts (see paragraphs 44 and 45). While the Interpretative Guidelines are not an admissible aid to interpretation, they are consistent with my reading of the judgments of the CJEU. Moreover, that interpretation is also consistent with the conclusion of the Cour de Cassation in X v Emirates (paragraph 58 above). In the case of directly connecting flights, travelled without any break between them, the final destination is the place at which the passenger is scheduled to arrive at the end of the last component flight. "
      1. 2. Article 7 applies to non-Community carriers in respect of flights to their final destination
      2. Regulation 261 applies to flights by non-Community carriers out of EU airspace even if flight 1 or flight 2 lands outside the EU. The necessary starting point here is that there is no requirement in Regulation 261 that they should land in the EU. Regulation 261 takes effect when the carrier is present in the EU and it imposes a contingent liability on the carrier at that point. The liability may never crystallise but if it does do so, it will crystallise outside the jurisdiction. It does not help Emirates to argue that the delay on flight 2 has to be caused by a delay on flight 1 within EU jurisdiction: that does not of itself show that the territoriality principle has been contravened. It follows that I would reject IATA's submission that Regulation 261 cannot apply where the destination on flight 1 is outside the EU.
    3. I would be interested to see other regular forumites' views.
    4. Have you tried putting your details into Botts or another online claim checker?
    5. Did the same plane do both legs of the flight? If hen the cause of delay to the second leg is caused directly by the dealy in the first flight.
    6. Is there also an arguement that if the second flight hadn't been delayed, to KA advantage, you still would have missed your connection anyway?
    Last edited by JPears; 16-05-2018 at 12:03 PM.
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    • benw2092
    • By benw2092 16th May 18, 12:21 PM
    • 8 Posts
    • 2 Thanks
    benw2092
    • #6
    • 16th May 18, 12:21 PM
    • #6
    • 16th May 18, 12:21 PM
    I believe, that as usual, the CAA have misinterpreted the decision (in favour of the airlines) by the 3 judges in the CoA
    IN the summing up of the case, there are 3 points made by the judges. The first 2 are relevant, particularly the first:

    "
    1. In my judgment, the answer to these appeals is clear under EU law. There are three points of EU law which together lead me to reject the primary case for Emirates.
      1. What counts is delay in reaching the final destination
    2. The CJEU has held that the liability for compensation for delay depends on the delay in arriving at "the final destination". Where the carrier provides a passenger with more than one flight to enable him to arrive at his destination, the flights are taken together for the purpose of assessing whether there has been three hours' or more delay. This is established by Sturgeon and Folkerts (see paragraphs 44 and 45). While the Interpretative Guidelines are not an admissible aid to interpretation, they are consistent with my reading of the judgments of the CJEU. Moreover, that interpretation is also consistent with the conclusion of the Cour de Cassation in X v Emirates (paragraph 58 above). In the case of directly connecting flights, travelled without any break between them, the final destination is the place at which the passenger is scheduled to arrive at the end of the last component flight. "
      1. 2. Article 7 applies to non-Community carriers in respect of flights to their final destination
      2. Regulation 261 applies to flights by non-Community carriers out of EU airspace even if flight 1 or flight 2 lands outside the EU. The necessary starting point here is that there is no requirement in Regulation 261 that they should land in the EU. Regulation 261 takes effect when the carrier is present in the EU and it imposes a contingent liability on the carrier at that point. The liability may never crystallise but if it does do so, it will crystallise outside the jurisdiction. It does not help Emirates to argue that the delay on flight 2 has to be caused by a delay on flight 1 within EU jurisdiction: that does not of itself show that the territoriality principle has been contravened. It follows that I would reject IATA's submission that Regulation 261 cannot apply where the destination on flight 1 is outside the EU.
    3. I would be interested to see other regular forumites' views.
    4. Have you tried putting your details into Botts or another online claim checker?
    5. Did the same plane do both legs of the flight? If hen the cause of delay to the second leg is caused directly by the dealy in the first flight.
    6. Is there also an arguement that if the second flight hadn't been delayed, to KA advantage, you still would have missed your connection anyway?
    Originally posted by JPears
    Thanks for the detailed reply

    Thanks, wasn't aware of Botts, have just contacted them with this information.

    No I believe it was a different plane.

    Yes I believe I would have missed my connecting flight anyway as the arrival time in Kuwait was after the second departure.

    Will see what Botts say to this
    • jpsartre
    • By jpsartre 16th May 18, 2:21 PM
    • 3,148 Posts
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    jpsartre
    • #7
    • 16th May 18, 2:21 PM
    • #7
    • 16th May 18, 2:21 PM
    Kindly note, compensation if payable is you misconnect in Kuwait , however in your case you did not misconnect and consequently you are not entitled to compensation.
    Originally posted by benw2092

    This is how most news outlets reported on the recent Emirates case (i.e. that you could get compensation when misconnecting). However, if you actually read the ruling there is nothing which suggests that a missed connection must be involved, all that matters is that you arrive late at your final destination. So assuming the delay was not due to extraordinary circumstances you are entitled to compensation IMO. Of course, getting the airline to pay out is another matter.
    • benw2092
    • By benw2092 16th May 18, 2:29 PM
    • 8 Posts
    • 2 Thanks
    benw2092
    • #8
    • 16th May 18, 2:29 PM
    • #8
    • 16th May 18, 2:29 PM
    This is how most news outlets reported on the recent Emirates case (i.e. that you could get compensation when misconnecting). However, if you actually read the ruling there is nothing which suggests that a missed connection must be involved, all that matters is that you arrive late at your final destination. So assuming the delay was not due to extraordinary circumstances you are entitled to compensation IMO. Of course, getting the airline to pay out is another matter.
    Originally posted by jpsartre
    Thanks - sounds like I have a case then.

    Seeing as the airline has already rejected it, and the CAA don't seem very helpful.. any advice on next steps? Someone like BOTTS?

    Apologies for all the basic questions - i'm new to this situation!
    • jpsartre
    • By jpsartre 16th May 18, 2:32 PM
    • 3,148 Posts
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    jpsartre
    • #9
    • 16th May 18, 2:32 PM
    • #9
    • 16th May 18, 2:32 PM
    You can try Bott although I don't know if they will take it on since it involves a non-UK airline.
    • benw2092
    • By benw2092 16th May 18, 3:07 PM
    • 8 Posts
    • 2 Thanks
    benw2092
    You can try Bott although I don't know if they will take it on since it involves a non-UK airline.
    Originally posted by jpsartre
    Thanks - if they can't help, any other advice what to try?

    Worth reopening with Civil Aviation Authority?
    • JPears
    • By JPears 16th May 18, 3:30 PM
    • 3,663 Posts
    • 1,018 Thanks
    JPears
    This is how most news outlets reported on the recent Emirates case (i.e. that you could get compensation when misconnecting). However, if you actually read the ruling there is nothing which suggests that a missed connection must be involved, all that matters is that you arrive late at your final destination. So assuming the delay was not due to extraordinary circumstances you are entitled to compensation IMO. Of course, getting the airline to pay out is another matter.
    Originally posted by jpsartre
    It certainly how those legal firms that represent the airlines such as les deux oiseaux, reported it....
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    The alleged Ringleader.........
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