To start with, a
big health warning: I am not a lawyer, I have no legal training, this post and the links are purely to provide insight into my experience taking a claim against Iberia through the full small claims court process to a county court hearing (and ultimate victory, albeit on something of an "away goals" basis...)
I've made all the documents I used (apart from photos) available here, with some redaction on case references, names etc. These include the "skeleton argument" I prepared for myself back in January, a brief critique of the Iberia defence, their last minute skeleton argument submitted to the court and my response.
https://drive.google.com/open?id=0B0...TlyWGhwSTkxdzA
Background / Timings
Overall this process took over 7 months.
- Flight in early December to MAD was delayed due to need to offload a bag, resulting in a missed connection to BCN and an overnight stay at Iberia's expense
- MCOL was filed just before Christmas
- Iberia defence was received in late January (after they acknowledged claim at pretty much the last minute - after telling me to use an incorrect address...)
- Directions questionnaires from both parties filed in early February (they wanted Uxbridge as venue, I wanted my local East London county court)
- After initially being allocated to a court in the City the case was transferred to my choice of court, with a Directions Order issued on 24th March and hearing date of 18th July
- Documents to be relied on in court were to be submitted no less than 14 days before the hearing
My approach
I spent time in January, while waiting for Iberia's response, to draw up something akin to a skeleton argument. I'd used the limited space available in the MCOL form to give the gist of my case, but needed to ensure that it was credible in the event of a hearing, and that I had all the evidence I thought I needed. Although some airlines will concede at the MCOL stage not all will, and not in every situation.
I took the view that I needed to push two lines with the court:
- A passenger checking in a bag was not "extraordinary", it is a relatively common occurrence and inherent in the operation of an airline; and
- Even if it was "extraordinary", Iberia had not taken "all reasonable actions" and thus couldn't be exempt from the requirement to pay compensation
I wasn't going to rely on my oratory to convince the court (although the burden of proof is actually on the airline under the regulation) so dug out reams of documents to support my argument, including ground handling contracts, service standards imposed by other airlines, industry studies etc. Plus an operating manual extract for the A320 detailing the time required to load / unload containers.
Importantly, I also had two photographs from 2F showing the ground crew arriving at the aircraft 7 mins after scheduled departure, and the first container being unloaded 9 minutes after scheduled departure. These were surprisingly important - so any contemporaneous details that you can capture / include in witness statement could be key.
Iberia's defence
Iberia's defence focused on the security risk posed by unaccompanied baggage (not contested by me), although they got somewhat hyperbolic with references to bomb threats in their witness statement and reference to Lockerbie made in court.
On "reasonable actions" they had not filed any evidence as part of their defence. And the log of delays on the 3 flights involved showed my ultimate MAD-BCN flight had a 6 minute delay for the same issue of a passenger with checked bags not showing up to fly.
The Hearing
Patience is a virtue. Scheduled for 10 a.m., but all the cases scheduled turned up and a lack of settlements on the day relative to normal, so at 12.50 we were told to return at 2 p.m. as there was no point starting before lunch. The defence barrister might have ticked the usher off with his regular loud sighs from the conference room he had grabbed for himself.
It is a relatively informal process, four of us in chambers - the judge facing myself and the defence barrister from a raised desk with a transcriber behind him. A good summary of the process from the judge with key point being that he could flip between the parties as appropriate to best get to the nub of the issue. Iberia had lobbed in a skeleton argument to the court on Wednesday p.m., and in response I had sent them one that arrived on Friday morning (and Iberia's lawyers hadn't passed mine to their barrister) - the judge hadn't seen them in advance so the spare copies we both had were read by him before we got into the hearing proper.
As most of the facts weren't in dispute the judge acceded to the defence's request to present their case first, I wasn't fussed. He seemed to take up my arguments with gusto in his line of questioning, and brought in his personal experience - i.e. we've all heard those announcements at airports for missing passengers to board or their bags will be removed. Defence really pushed the security risk line, but got rather lost when the judge started pushing on the timelines and when the decision was made to offload bags. I weighed in at certain points to highlight that my evidence bundle provided certain answers when the barrister was unable to answer or claimed something was unknowable - e.g. boarding cut-off times, the time it takes to position loaders, the capabilities of baggage reconciliation systems.
When he got to me the judge really pushed the CAA list and the explicit listing of unaccompanied baggage - I probably didn't do a very good job here, but in the end it didn't make a difference. I did throw in a House of Lords case for kicks, making the point that the judge didn't have to choose between competing possibilities, but could take third option of determining the party (i.e. Iberia) who had the burden of proof had failed to prove their case (thank you Rhesa Shipping vs. Edmunds, even if the rather illiberal Lord Diplock had his name on it...)
Determination (note, these are my contemporaneous notes, so somewhat abbreviated / gaps filled in from memory with some implied points spelled out and not necessarily fully reflective of any nuance etc.)
I disagree with part of the ruling, but as I won I'm not particularly concerned. If anything I think it limited the ability of Iberia to appeal as it accepted part of their defence
Is a passenger checking in a bag but not flying an "extraordinary circumstance"?
Yes. Just because something is a common occurrence does not mean it is ordinary, and as it is not ordinary it can be described as extraordinary. However, just because something is extraordinary does not mean it is so unique as to require completely re-inventing processes, therefore it does not automatically follow that reasonable actions could not be taken.
Did Iberia take all reasonable actions?
Iberia did not show whether or not they had taken such actions. Their evidence didn't describe process undertaken and expectations of such a process. Judge not satisfied that the delay could not have been avoided, the systems exist to remove bags in a timely manner, and a reasonable process would allow for an on time departure if boarding process had closed on time (allowing time to offload bag)
Economics
I claimed c. £182, the equivalent of €250 when I filed with MCOL. I also had to pay £25 MCOL fee and £25 hearing fee. By winning the court awarded me the sum of these, i.e. £232.
As expenses are not claimable the ~£150 I spent on printing documents, postage etc. meant I was left with a net £30 or so, and had to put in maybe 20 hours altogether. 7 hours today as we didn't finish until 4 p.m. and a decent amount of prep.
Iberia are probably, consistent with
CWS's estimate, about £1,000 out of pocket. They will have had to pay their solicitors, their barrister and the ultimate award to me. Might even be a little conservative given a day and a half of a junior barrister's time, plus VAT etc., is unlikely to be less than £500, and possibly same again for solicitors given their involvement over 6 months or so.