potakas

I am in the middle of a case with BA and I would like your thoughts in order to help me understand what I can do (or don't).

My story begins when a flight that my girlfriend had, got "delayed" for 11 hours. It was a late flight ex-LGW, after two take offs and returns to LGW they told them that due to the technical problem they will sleep on a Hotel and early in the morning there is another flight for them.

My girlfriend didn't receive any voucher for her dinner so she called BA CR to see if she could send the receipts from her dinner, BA CR said of course and they also credited 10k miles to her account^.

I was trying to figure out if she could get the EU compensation, I've done my homework and figured out that there is a possibility (as I thought that this is not "extraordinary circumstances").

Here I have to say that my girlfriend's flight the next day had the same number BAxxxxAC, the only difference was that "AC" on the end, at least that way was written on her BP.

She sent a letter to the BA EU claim department giving her details and attaching this paragraph from the EU passenger rights web page.

If you get to your final destination with a delay of three hours or more, you may be entitled to identical compensation to that offered when your flight gets cancelled, unless the airline can prove that the delay was caused by extraordinary circumstances. Additionally, airlines can be held liable for damages resulting from delays. .

I also found out this article from BusinessTraveller (but she didn't attached it as it not official).

This article states that:
Last November, the European Court of Justice ruled that delays of three hours or more were to be treated in the same way as cancelled flights. This means passengers can claim €250-€600 in compensation depending on the length of delay and the distance between destinations, provided the reason for the delay is within the airline’s control – the real deal-breaker. The ruling has been criticised by the airlines, who say it could cost them up to €5 billion a year, forcing them to increase ticket prices. But they are not required to publish what they pay out.

Yesterday, we got the reply from BA:

"Thank you for your letter regarding your claim for compensation under EC Regulation 261/2004.
Regulation 261/2004 states that compensation is payable in some instances of cancellation and for denied boarding. It does not provide for payment of compensation for delay. It is our view that the Sturgeon judgment has given a meaning to Regulation 261 that was never intended when the legislation came into force. Furthermore, the Sturgeon decision directly contradicts another European Court of Justice decision pre-dating the Sturgeon case, in which the European Court of Justice stated that compensation was not payable in respect of delay.

British Airways has issued proceedings in the English High Court and asked the court to refer the matter of compensation for delay back to the European Court of Justice. The High Court has agreed to refer questions to the ECJ and we await the decision of the ECJ. Until such time that the position has been settled by a further ruling from them, we are of the view that we are justified in not paying claims for compensation for delay and court claims are being stayed in the UK and in other jurisdictions, pending the decision of the ECJ.

Regardless of the outcome of that challenge to the Sturgeon decision, if the delay was caused by “extraordinary circumstances” under Article 5.3 of EC Regulation 261/2004 then no compensation will be payable. Having checked the details of the delay, I can confirm that the delay was due to an unexpected technical difficulty on the previous flight. This delay constitutes an extraordinary circumstance as set out in Recital 15 of EC Regulation 261/2004 and could not have been avoided by British Airways even if all reasonable measures had been taken.

As such, had this delay ultimately resulted in cancellation, rather than a delay, British Airways would not be liable for a compensation payment under
EC Regulation 261/2004.
BA will prove the defense of “extraordinary circumstances” should this become necessary in court proceedings. I am sorry to disappoint you, and I hope this helps clarify our position for you.
Once again thank you for following this up with us.



Best regards"

Is the technical problem “extraordinary circumstances”?

BlackCat

No it is not, unless the technical issue is caused by a hidden manufacturing defect, damage by sabotage or some other exceptional event. 'Normal' issues covered by maintenance are not extraordinary circumstances: BA is talking drivel and plainly trying it on... unless something really untoward had happened to the plane.

However, I think that BA are justified in awaiting clarification from the ECJ re compensation for delay - this is what other airlines are doing. Unfortunately the legislation is unclear as to when a delay becomes a cancellation... change of flight number is only one factor.

BC

HIDDY

Personally speaking I wouldn't have the heart to take it further.....these things happen when flying.
They put her up in the hotel, after prompting agreed to reimburse food costs and gave her 10,000 miles to top it all off. I would have settled for that but under different circumstances I might have taken it further....if I'd missed a important meeting or something like that.

Lobengula

A technical problem can hardly be "extraordinary circumstances" and I don't think BA should try to claim that. I have never heard of any "expected technical difficulties"

The response also said that they're awaiting ECJ clarification which is fair enough.

DillMan

+1. I couldn't agree more, particularly when one considers the fact that BA did deliver with respect to help at the airport.

nth_utsera_sth_utsera

Hi potakas thanks for sharing the response you received from BA. I concur with Black Cat, they're running rings around you. In case you haven't already discovered it, you may want to have a look at / post on Flightmole. Be prepared for it to take a while and, if necessary, to issue a County Court summons. BA will eventually settle, though likely the day before or on the steps of the court.

sunrisegirl

And I agree too (as I'm sure most of you would expect me too).

I know the flights the OP is referring to and it was obviously an unpleasant situation for all concerned. However I checked in a lot of people for the following morning's flight and every one said how well they'd been looked after by BA with constant information provided, a 4 star hotel for the night and meals and refreshments.

All those I dealt with were fully understanding that, like cars, things can unexpectedly go wrong and they were glad that BA took safety so seriously as to return the flight to LGW when a problem appeared.

I most certainly don't wish to appear rude but BA have provided a hotel, meals and given your girlfriend 10k miles. What more do you want?

Personally I'd be embarrassed to seek compensation when I'd already been looked after so well.

Flying Lawyer

I do not wish to appear rude but this answer proposes that one makes use for the services of BA for the sake of making use of them. Different from BA staff I do not make my living while flying but I need a flight to get from A to B. I just wonder what my clients would say if I missed a deadline and argued "well, my secretary became ill", "my computer system failed" or "I could not get to court because my car broke down". My clients would say "I could not care less, get your but into movement".

There is more than one plane, there is more than one pilot and if an airline's equipment fails, I expect an airline to find a solution. And this solution can be: Book me on a differnt carrier, have a spare aircraft or charter an aircraft.

I normally avoid flying eg Emirates out of London - they certainly are not required to have an extra bird on the ground. However, Lufthansa in FRA and MUC does have spare aircrafts on the ground and I do certainly expect the same from BA.

The answer from BA shows that they still have not understood the language of the directive. The carrier does not get away free in the case of “extraordinary circumstances” but only in the case of “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.”

BA - do you understand the difference?

We all know, simply to adopt Sunrisegirl's example, that cars can break down. This can certainly be based on “extraordinary circumstances”. However, the problems from the broken car certainly can avoided even all reasonable measures are taken. Rent a car, book a taxi, steal a car or simply buy one. However, putting your customers simply in a hotel and feed them is not enough. And the directive encourages the carrier to think more in the interest of the customer. As long as it is cheaper to put pax in an 80 GBP hotel room and give them 20 GBP for food, the carriers will happily do so and get their problems (and a defective aircraft, a drunken pilot or a crew on strike, is the sole problem of the carrier) cheaply. Only if become more expensive, the carriers will think about effective solutions.

HIDDY

Obviously way over the top in my opinion and might have an adverse effect on future legitimate claims you might have for compensation. If I were BA I would put a comment next to your name.
Along the lines of "troublemaker.....move to bottom of the pile".

sunrisegirl

I'm not going to get entrenched in this - clearly as a lawyer you're far more intelligent than I - but if the aircraft was unable to operate due to an unexpected problem (and let's face it BA won't take off if they know a problem will bring them straight back to the airport) and there was no other aircraft what would you do?

BTW the hotel is more than £80 a night. And even if it was that, if a flight is full spending £140k to look after passengers is not inexpensive.

Oh, and I'm not aware of any incident involving drunken BA pilots - perhaps you could enlighten me. And just for the record I don't earn my living by flying for BA.

Lobengula

Indeed an overreaction and I wouldn't do it. While I think the current legislation is unclear and unfair I do think an airline must suffer some consequences if pax are delayed for more than x hours.

If a pax is delayed to the airport for check-in, the airline will just say: "buy a new ticket" (yes I realise that a fully flex ticket is different). There must be some sort of balance between the pax rights and the airlines.

I think it's fair that an airline in the event of delay/cancellation must provide "care" (meal, hotel) and also some sort of cash compensation. It's not the pax fault that an airplane goes tech.

You have to remember that the current EU legislation is there because the major airlines demanded it. It was an effort to "punish" the low-cost airlines and maybe take them out of business.

Dave Noble

Emirates would seem to be a v bad example of an airline to avoid given that they have 5 services a day from LHR plus 3 services from LGW giving lots of other EK flights to rebook onto should problems occur

LTN Phobia

Same here. I would have expected BA to put me on the next available flight, pay for my hotel to a reasonable amount and pay for my meal to a reasonable amount, but I would not have expected any more - not even 10,000 miles.

I expect problems to happen when I fly. If I get involuntarily offloaded or downgraded, it would be a completely different matter but for technical delays without a huge consequence, I would be quite happy to have my additional costs to be taken care of by the airline or insurance or both.

However, I must admit I like the Eurostar's delay and downgrade compensation scheme where you get to ride free of charge as a compensation, rather than getting a monetary compensation. They're happy because it doesn't really cost them much to give me a seat unless the train will be full due to my presence, and I'm happy because I get a free trip. It works well.

Hubbabridge

Legally I think the Op is in the right, though until you get to court you never know how it is going to go. Clearly a technical problem is not an extraordinary circumstance, they happen all the time. If BA had really annoyed me I might be tempted to take them to court but in the circumstances you describe quite frankly I would not have the energy.

potakas

I am not gonna do that as I don't have time to running for 250Euro, thanks for your advice but it is not my intention to do it.

That's what I though many times, do you really know how many times I didn't claim miles for the broken IFE I had on my CE 767 flight? You will do it once or two but after that you are getting bored and you have to worry about being a troublemaker, for sure in this case I could have been a troublemaker for BA but this doesn't eliminate the fact that the problem begun from the BA's side.

I don't have any inside information but I don't believe that Hilton charges BA the usual price, £80pounds+taxes.


As for the 10K miles I thought that BA credited to my girlfriend's account because they didn't provided to her a dinner, she never accepted the 10K miles because BA did something else wrong. From what I understood BA said sorry for not giving her a dinner. If they credited the miles for the delay is another story and according to their reply they shouldn't as it was something they couldn't predict and so they couldn't have done anything for this, like the car story.

I wrote this topic not because I was desperate to take the 250Euro but because I though (and I believe it is obvious) that BA doesn't say the truth by telling me, it was "extraordinary circumstances".

BA treated well all the passengers by providing hotel but truly, is there anyone out there that wouldn't expect or demand that from BA? I think it is common sense that and that's why we never fly with easyjet/Ryanair.

On top of this I have to say that yes, my girlfriend missed an important meeting but it is not my case to chase it, I thought that would be simple from what I read on the EU passengers rights web page :
"If you get to your final destination with a delay of three hours or more, you may be entitled to identical compensation to that offered when your flight gets cancelled, unless the airline can prove that the delay was caused by extraordinary circumstances."

I thought that by sending them the letter I would get the compensation.
She never made a claim because she missed the meeting or moaning all the time.

You guys know me, I am not a moaning passenger or someone how says negative things for BA. I thought that was simple and inside the EU law.