Entertaining listening to various conversations while waiting for hearing - hoping I get the judge who threw out consumer credit act claim as the company couldn't produce their consumer credit licence...

am confused by CWS's tables in the first few posts.

LHR - HAJ flight was delayed by 3 hours and 15 mins.

is comp due €250 or €400?

tada.

Victory!

Judge ruled that while cause of my delay was extraordinary, Iberia had failed to prove that it had taken all reasonable actions. £180 + £50 court fees. Not much after expenses, but they had to pay barrister and solicitors, so feel that justice has been done. Defence barrister was rather weak, nice dig by judge when he complimented my arguments and said that they were a lot better than those of some barristers

Will load my response to their skeleton argument and a summary (not verbatim) of judge's conclusion to google drive in case useful for others.

(So many times when their barrister said that something was unknowable and I got to point to documents if submitted in evidence. Fun!)

Congratulations.

The judge's ruling seems a little, ok m'lud, interesting, but I wasn't there. I'll link in the Docs when you're done. It may be worth putting a timetable of events, that is the thing that people seem to be unsure about, at what stage to invoke MCOL, and when to expect things to happen.

By the sounds of it, you found the process interesting, others would be quite daunted. I guess IB would have had very little change from £1,000 from this, so I'm surprise they didn't offer to settle out of court.

250€ if not extraordinary.

<removed - I was looking at CANCELLATIONS in the wiki and should have looked at DELAYS>

Unfortunately not, if it was a plain delay you ALWAYS need 3 hours delay at arrival. Cancellations, reroutes, diversions (etc) would be different. See section 11.1 in post 1:

To have got 10k Avios is extraordinarily generous, you did very well there, unless there were other factors, I am quite surprised by that.

Ta.

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.

Many thanks @lorcancoyle for posting the above.

I've had a further think about this. I believe the floor level junior barrister for London level is £80 an hour. He would have got nearly a full day for the hearing, given the timings, plus a couple of hours for the day before the hearing. So that would be around the £800 mark including taxis and photocopying. The solicitors would have got perhaps £200 per hour for the pre-work, so that's at least £500. So my better estimate, adding in your winnings, would be a bill to Iberia in excess of £1500 for unsuccessfully defending a £182 claim!

Thank you ever so much for posting this lorcancoyle, it's really helpful and I'll add it to the top posts here. Some random thoughts from me. I'm also not a lawyer:

1) There is no way BA would have gone down this route. At worst there would have been an out of court settlement. The maths don't stack up. Moreover I think BA would normally settle this sort of issue inhouse anyway.

2) BA use topflight lawyers, including DLA Piper. I'm totally sure in this case they would have gone to BA and pointed out that no matter how arguable this was a waste of resources. DLA Piper may even have folded it and taken the hit themselves as part of a wider contract position. On the other hand, if it was a clearly hopeless case, BA will pursue the matter in court, no two ways about that.

3) Though I've not taken on BA, who in the main are one of the good guys in this area, I have dragged other airlines to court, namely Ryanair, easyJet and KLM. What I find utterly baffling is that despite the high regard the legal profession has (my mother still wants me to be a lawyer), they are incredibly inept on the ground - papers missing, instructions not received, deadlines ignored. I'm surprise that district judges are so tolerant when one side is fully up to spec, and the expensive barrister is struggling to remember the casework. So I'd like to think that those who claim in person get some credit for being organised, but in reality the judges ignore this factor. Basically so long as you show your face in court on time everything is forgiven. As in this case I guess the judge can simply point to some material incompetence in the defence to get to the same place.

4) In this case, the judge has adopted a reasonable outcome in the final analysis, but I would struggle to see how baggage delays are extraordinary and (e.g.) birdstrike, or a fuel gauge keeling over, is not.

5) The timetabling of court cases is woeful, you basically have to throw a day away. I've no doubt this is a Spanish custom to keep the legal profession bankrolled. Add into this all the work you had to do, then unfortunately you can see why many people don't bother.

6) The CAA is supposed to defend passengers' interests. Once again we see how they swing far too close to the interests of airlines. They would hotly deny this, but I hope you send some feedback to the CAA bigwigs to let them know how their documentation is not helping passengers.

7) This shows how it should work: the consumer has presented their case and the judge agreed. However you can see how the system is stacked against the consumer if he/she hadn't dug into the finer points of Lords Diplock's pronouncements. On the other hand the number of significant cases for EC261 isn't that great, about a dozen or so, hence it shouldn't be that problematic. However I find it interesting how little district judges go into the forensic side of that, but are very happy to go forensic over the good Lords Diplock and Denning. I guess it was an interesting education for you, but still....

Let us know if they pay up, some big companies go into shock over small court cases and can't bring themselves to write the cheque. I would quite like to join you raiding the kitchens of Iberia's offices, so we can eBay all their coffee mugs!

BA denied my claim originally citing that they cancelled the flight more than 14 days before. After getting advice here I asked them to provide the date, time and method that they communicated the cancellation. BA replied:

"Your claim’s been refused because BA0768 on 01 July was cancelled because of commercial reasons which was outside our control which prevented the aircraft operating as scheduled. Under EU legislation, I’m afraid we’re not liable for a compensation payment in this situation."

Has anyone seen this before? They not only did not answer the question but cite commercial reasons which makes no sense right?

No it doesn't make sense. They can cancel the flight for any reason they like 14 days ahead of departure, so commerciality is a red herring, but it remains their responsibility to ensure you were told about it, whereas I recall you said were only told about this on the day of departure. Original post here, so that people can keep track.

So you have little choice but to give them 16 days notice that you will invoke MCOL unless they can provide proof under Article 5.4. I hope you kept screen shots of what BA.com or the App showed at the time, that would be enormously helpful at this point (they may still be visible in the App if you used this).

I wonder if BA are trying to play hardball ?
My flight of 5th July TXL-LCY was cancelled 9 days before departure (if you count the day I was notified).
I was originally supposed to arrive at 12:40 but ended up arriving at 17:40 (having the joys of a cross London tube journey with suitcase in rush hour for my troubles).
I duly put in an EC261 claim on 6th July which was acknowledged and a CS ref no issued.
However I have heard nothing since the auto response...any advice would be much appreciated, including how much time before chasing things up.
Many thanks.

I saw reports of it taking over a month, I imagine they have a FLY sized deluge to deal with at the moment. You can telephone UK Customer Relations if you like, quoting the reference, if they agree it's cut and dried, that will expedite the process.