How many EU compensations
 

See Edit

Well I laughed. I can see some District Judges relishing the prospect of dissecting this one (the case, not the mammal). I suppose it would make a difference if it was a British rodent rather than an American one (since BA should have got their pussy on to the case it before it left London), but I don't suppose anyone recorded this vital information.

This is a small outstation, it's a pretty unusual case, I presume they were caught the mouse/rat/vole about to sink its teeth into the flight deck's wiring, and therefore they reasonably didn't have much choice but to cancel. I think that might stand up in court, so though I'm sure others will disagree, I don't think this is the strongest case I've seen here.

But I do hope it wasn't caused by the need to get professional pest controllers in. It reminds me a bit of when the redoutable Margot MacDonald MSP discovered that the Scottish Parliament was spending £250 to remove a pigeon from the building's roof: "For £250 a bird, I will wring their necks myself."

I'm not sure why the size of the outstation should matter, but a rodent on the aircraft would seem to me to meet the two-part test in Wallentin, in that it is not inherent in the normal activity of the carrier, and beyond the carrier's control.

The argument, to the extent there is one, would be that the delay was occasioned not by the rodent, but by the time it took BA to provide an alternative aircraft. (Hypothetically you would say that BA could have had a spare aircraft ready and waiting at Denver all along). This analysis found favour with a Circuit Judge in Huzar v Jet2, but that decision is subject to appeal, and personally I find it (deeply) unpersuasive. Any claim in court is likely to be stayed behind the appeal in Huzar, so the process would be very drawn-out.

BA2036 canx 22 Dec
 

I've now had the expected stock response from BA rejecting my claim in respect of this flight MCO - LGW which was cancelled resulting in a 24 hr delay in our return to the UK. They give the usual "unexpected flight safety shortcoming", did not expect to have to replace this part but also say the fault with "MLG bracket" (which I take to be main landing gear) was discovered during final maintenance checks. This is demonstrably untrue since when the arriving aircraft reached the gate the starboard undercarriage was immediately surrounded by ground engineers and flight deck crew.
So in addition to wheeling out extraordinary circs BA haven't been entirely frank when about when the fault was discovered - or more likely the person pasting this letter together just relied on stock phrases which in this case misrepresent the circumstances in which the fault was discovered. My son and I had a clear view of all that happened when the aircraft went on stand and my description was posted here 48 hrs later.

I've put this back to BA to give them a chance to reconsider but I wonder the extent to which their inaccurate (some would be less kind and say false) account might weigh in my favour. Hopefully I'll find out in less time than the 8 weeks it took to reply the first time.

Basic question, but if a flight is cancelled and you are rebooked, say, 24 hours later on the next flight (subject to being due to something within BA's control, not weather etc), do you get cancellation compensation as well as delay compensation?

I would suggest that in light of court rulings and anticipated changes to the regulation that in such cases, any delay compensation is cancellation compensation.

Indeed, and just to amplify that a little: in the Regulations there is no compensation for delays. Not a bean. So rather than cancel service airlines developed this nifty line in services being "delayed" for days on end. So the judiciary decided this was evidently making a nonsense of the Regulations, and started to apply cancellation compensation to delays as well. So it comes down to the same thing. It is possible to get multiple wadges of compensation for one sector (e.g. delayed on day1, rebooked and downgraded to day2, then delayed again....)

Thanks serfty and CWS.

I have just received the third response:

Thank you for contacting us. I apologise for the delay in replying to you.

I have reviewed your claim for compensation and your flight BA0153 on 19 December 2013 is not eligible for EU compensation.

The EU has published a list of what National Enforcement Bodies consider extraordinary circumstances. This includes the failure of on-condition/condition monitored parts i.e. parts which should not require unscheduled maintenance or replacement during normal operational service. The premature failure of these parts during normal operational service when maintained in accordance with the maintenance programme is unpredictable.

As previously advised, the flight was delayed due to unexpected flight safety shortcomings. Under EU legislation, British Airways is not liable for a compensation payment in this situation.

On arrival of the previous flight BA0164 on 19 December 2013, we discovered a fault with the undercarriage, which led to the aircraft change. There are numerous parts that the airline may be required to replace within a specific timeframe. These parts are kept fully stocked and ready to fit. As this particular ‘part’ was not due to be replaced, this constitutes as extraordinary circumstances. This caused a flight safety shortcoming that had to be assessed by our engineering team.

Article 5.3 of the EU Regulation 261/2004 states that a carrier is not obliged to pay compensation if it can prove that the delay or cancellation is caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken. I regret, therefore you are not entitled to compensation under the EU Regulation for your delayed flight.

I realise that this will be disappointing for you but I hope this information will enable you to understand our decision.
Best regards


I assume the next step in small claims?

Yes, state that you just cannot let the matter to rest and as such you will raise a case with the small claims court.

I agree, perhaps giving them 10 days to reply. Personally I'd leave off the court threat at this point, since that results in an escalation which won't help you. However I would add that since this was a service departing LHR it cannot be extraordinary circumstances which could not reasonably have been foreseen, since clearly another aircraft could have been used. Technical failures have not been held to be extraordinary since Sturgeon (see quote above). On day 11 start the small claim process.

This is the clearest reply from BA yet that the "draft" NEB guidelines are being used to deny technical claims (see last year's thread, towards the end of the year).

That was exactly what I thought. I think they're playing on the fact that people have heard about the upcoming changes and think they've already been implemented - which they haven't, so they're relying on the OP saying Oh the rules have changed, guess it doesn't apply. Wrong BA! :mad::mad:

Should I state that the list they are referring to is a draft, and separately that under Sturgeon technical issues are not extraordinary? Or simply 'I am unable to let matters rest at this point and I shall take matters further if this case is not escalated and reviewed within 10 days'?

Thanks :)

The BA Compensation Thread: Your guide to Regulation 261/2004
 

I would mention all these factors, plus the Heathrow fleet, to show you have done your homework. The most important point to make is that you do not regard this as extraordinary as defined by the Regulations or by past judgments.

Curiously less than 24 hrs after their reply and my response another email from BA rejecting my claim under the same reference - this totally ignores the points I made yesterday. Time methinks to brush up on using the courts to take this claim forward. Looking back it seems BA started with a reasonable reputation in this field but have now switched to complete intransigence. Probably a carefully costed management decision -along the lines of it is cheaper to say no to everything and only pay up if court action is imminent.

That seems a very likely decision on their behalf based on the last few months worth...! :td: