FlyerTalk Forums - View Single Post - The 2018 BA compensation thread: Your guide to Regulation EC261/2004
Old Nov 1, 2018, 9:07 pm
  #1543  
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Originally Posted by robertf999
In short, BA have now emailed to say they are not paying anything, citing "extraordinary circumstances" and saying they are not liable for the cost of the alternative flights.

1. I believe "extraordinary circumstances" is only for delays, not denied boarding. Am I correct?
2. Assuming BA did agree over the phone to cover the cost of an alternative flight and if this can be proved, can they now be held to this?
3. Are delays calculated to the arrival city, i.e. London, or to the specific arrival airport if that is the necessary destination. My friends arrived at LHR at least three hours later than scheduled, but less than that to LGW.
I will answer the specific questions first, then I will look at the operational mistakes before going back to EC261.
1) IDB: Correct - IDB does not have an extraordinary circumstances defence. And if it did, BA's crew levels is a matter of choice for the airline, had they operated with a different complexion of crew and passenger numbers - which happens all the time - then there wouldn't have been a problem. So I don't think EC would work even if it did apply. There is, however, something in the definitions which suggests that IDB for safety reasons isn't IDB, but my reading of that clause is that it relates to the individual's safety (e.g. the passenger is unwell). If the claim was for delay rather than specifically IDB you can see where BA's refusal could have come from.
2) Rerouting via easyJet: The telephone call should have been recorded, my guess is that actually the agent may well have nuanced the wording somewhat here, and though the passengers may have had a clear impression of being offered the option of buying elsewhere, I would be somewhat surprised if the agent was completely overt in saying that, since that isn't BA's SOP in this area. However I do think you potentially have a case here, for other reasons.
3) LGW v LHR: This isn't totally clear in the Regulation, however I think you are able to take the view from other parts of the Regulation that using another airport which results in additional travel time is part of the delay timing. My strong suspicion is that if you use where you were actually trying to get to (home, office etc) then a judge would probably entertain that. If you had your car parked at LHR that would create a clear need to add in the LGW-LHR travel time, for example. It could be unrealistic to pursue this (given that IDB would apply anyway) since it could be argued that you made your own travel arrangements here rather than let BA re-route. On the other hand presumably the re-route options that BA did offer only resulted in delay anyway.

The operational failure here was that the ground agent in HAM should have rebooked the passengers themselves, using other airlines if necessary, presumably Lufthansa (they can't rebook on to easyJet due to easyJet's GDS system). I'm guessing they didn't offer this since after the flight the ground agents in check-in would have gone off duty, which is pretty poor of them if the case. Most ground agents would have done this even when not BA employed or paid to do it, and I've been rebooked in HAM during a recent bad weather event.

There isn't a specific right to being rebooked under the Regulation on to another airline, a long story, but the CAA have in the past said that if an airline can't rebook you the same day on short-haul then you should rebook yourself and claim against the airline - there is documentation to support this. When Ryanair protested about this during their recent strikes, the CAA allowed Ryanair to make it "same day or next day". However this was a complex one due to the strike aspect and may be argued to be specific to that dispute (plus the fact that Ryanair's routes are often monopolies). There has not been a binding judgement in this area, and I can't believe BA would be seeking for one to be found either.

My view is that if you pursued this case very carefully via MCOL you should get the rerouting aspect refunded on a number of grounds (what the agent promised, the Regulation's bias to protecting consumers, next available flight, failure to pay IDB immediately, failure to reroute immediately), but it would require some attention to detail on the submission and potentially some effort if BA defends the case. It's not risk-free. However in similar cases, BA have not allowed it to get to court. You don't need a copy of the tape incidentally, just a Statement of Truth as to what was said. The IDB aspect alone could go fairly safely to CEDR and probably wouldn't get that far if the submission was carefully worded - a paralegal wouldn't be able to come up with a defence on that one.
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