Post 7
Letter / Notice Before Action
Here are some comments to help with any final letter you may send to BA prior to using MCOL. This can be regarded as best practice for this sort of claim, though it isn't actually mandatory. However if you do this it may assist you later. It is taken from the
Practice Direction - pre-action conduct.
2. Claimant’s letter before claim
2.1 The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –
(1) the claimant’s full name and address;
(2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);
(3) a clear summary of the facts on which the claim is based;
(4) what the claimant wants from the defendant; and
(5) if financial loss is claimed, an explanation of how the amount has been calculated.
It should also provided a date by which a full answer is expected. This isn't directly specified, but the implication of the rest of the guidance is that would be at least 2 weeks. For one person's experience at getting BA to pay (pre Huzar)
see this post from the previous thread..
2014 Developments
How long do I have to submit my claim?
This is now settled in law, as a result of
Dawson v Thomson Airways Ltd [2014]. Proceedings must commence within 6 years of the date of the incident being claimed. The Supreme Court dismissed Thomson's application to appeal on 31 October 2014.
What about the Huzar Case relating to disruptions due to technical reasons?
The UK Supreme Court has ruled on 31 October 2014 that it will not consider an appeal against a previous Appeal Court ruling. This means that the law relating to EC261 and delays caused by technical issues is clear: almost all such cases will not be considered "extraordinary circumstances" and therefore a long delay caused by a plane going "technical" would be grounds for claiming compensation. There could be some exceptions to this, the sort of examples mentioned in legal proceedings include where the aircraft manufacturer issued an urgent safety alert and thereby grounded aircraft. It can be assumed that this would be a very rare occurence, most "technical" cases would tend to be covered by the Regulations.
BA declined to pay me for a claim based on technical problems, can I go back to them now?
Almost certainly yes. Some technical problems can still be "extraordinary circumstances", for example if Boeing announced an emergency recall, but this would be very much the exception. The 6 year limit would probably not apply to older cases. It appears BA is paying both old and current claims in this area without hindrance.
=====
Some pointers from other Flyertalker's experiences of using MCOL
While respecting the privacy of the individuals' concerned, there are some lessons learned that perhaps can be shared.
- If going down the MCOL route it is important to pay attention to details and deadlines. While it isn't particularly complicated or onerous, sending an MCOL through without proper preparation is doomed to failure.
- Don't rely on BA not turning up at court - they often do. Moreover if you don't turn up at court, or fail to send a solicitor / person to represent your case, BA may well be successful in asking for a contribution to their costs. £240 was extracted in one case recently - from a BA gold cardholder at that!
- There is some validity in selecting the Arbitration clickbox as part of the process. There are several reports of BA making a reasonably generous offer (i.e. not all of what was asked) in the telephone call that is involved in this case. If you access this offer, the arbitrator will submit that to the court for ratification. Often BA's offer will come in the form of e-vouchers: it's a electronic voucher beginning 125 which can be used to pay for one or many flights: during the BA.com booking process you add the voucher as a means of payment. You can also use e-vouchers to pay for travel for friends or relatives. BA may invite you to look at the terms and conditions of e-vouchers before that telephone call, so you can guess it's going to be offered! You don't have to select the Arbitration option, it doesn't count against you and you are not forced to accept the outcome of this stage. I think the only reason why you would NOT go through this stage is if you wanted your day in court and were not particularly interested in a negotiated settlement. Alternatively if you have hearing or language issues with telephone conversations perhaps.
- Only use MCOL for one individual - don't add (e.g.) your spouse directly into the submission since BA will highlight this in their defence, which thereby risks the judge throwing the case out completely. There is a paper form you can use for multiple applicants. However probably the better way to handle this is to make MCOL for one individual, but insert a paragraph somewhere to make it clear that your spouse has an identical claim and it will be pursued after the first MCOL submission. BA are unlikely to defend the same case twice and it mitigates your losses if you actually don't have a case.
- Consider doing a skeleton: a one or two page summary or roadmap of your claim, with numbered bullet points that would allow a judge to walk through the case and refer to the documents / proof in short paragraphs. The first few paragraphs would be a bit about you and the briefest summary of the events behind your case. The last paragraph is a conclusion and a mention to the total sum applied for. In between you should put about a dozen paragraphs explaining what you are claiming for and the legal basis. This is certainly not expected at small claims level, a skeleton is used in more complex cases and is drawn up by those with legal training, but it really does make life easier for the judge and for you too: it allow you to focus your argument succintly on the points that matter. Send it to the court and the airline about a week before any scheduled hearing/arbitration. This guide is intended for legal students and goes into too much detail, but you may find it interesting, just read pages 6 to 9 inclusive:
https://www.biicl.org/files/2223_ske...ents_guide.pdf
- If your claim is against BACF (ie involved flights out LCY or Stansted), SUN, OpenSkies, Comair - be careful to make the claim against the correct company, BA will highlight errors in this area (even though in the case of BACF the same legal team is involved!) and it may invalidate your claim.
- I know it's easy to say, but don't take this too personally. There is a standard legal framework for pursuing complaints, it's used thousands of times every working day, and both BA and the consumer have access to this framework. They are not "getting at you", they are simply using a well trodden path for resolving disputes. And you won't get banned from using BA if you take them to court, BA is a large corporation transporting over 40 million people every year.
- Be realistic about settling out of court. You are free to make your own or counter offer to the airline too. A court hearing is likely to be a poor use of your time, and so it is worth reflecting on any approaches which can avoid this.