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The 2017 BA compensation thread: Your guide to Regulation EC261/2004

The 2017 BA compensation thread: Your guide to Regulation EC261/2004

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Old Feb 22, 17, 4:11 pm
  #211  
 
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Originally Posted by hmlg View Post
MCOL sounds scary so i suppose it is onto one of the solicitors.
Not scary, my experience here - and for a much more clear cut case like yours they should settle after filing. Triggering MCOL means someone sensible will review
http://www.flyertalk.com/forum/26934722-post729.html
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Old Feb 22, 17, 4:22 pm
  #212  
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Although the response doesn't specify that extraordinary circumstances are in play, this may well be BA's next point. With regard to their current response, it is vital to know did BA offer you a transfer and a hotel to the flight the following day or did they tell you to do so? I suspect, either way, you would be able to argue against this if you took this further.

Do you know what collided with the plane, BA may try to argue that the above legal case refers specifically to stairs because they are required to be in close proximity of the aircraft.

Hopefully BA will pay up. Good luck.
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Old Feb 22, 17, 4:55 pm
  #213  
 
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Originally Posted by hmlg View Post

MCOL sounds scary so i suppose it is onto one of the solicitors.
Don't be scared. I did it after BA gave me the run around last year. It was relatively simple and within a few weeks I received a response and then a few weeks later BA settled the matter in my favor. MCOL gets you to someone who actually knows what they are doing instead of just someone sending you random reply.
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Old Feb 27, 17, 11:55 am
  #214  
 
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How can I find out the reason for a delay? I can't find anything on expertflyer or flightstats for BA799 on 26/2/17. The 79min delay led to a missed connection and an overnight stay at LHR.
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Old Feb 27, 17, 12:15 pm
  #215  
 
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Originally Posted by IMetThePieMan View Post
How can I find out the reason for a delay? I can't find anything on expertflyer or flightstats for BA799 on 26/2/17. The 79min delay led to a missed connection and an overnight stay at LHR.
The inbound from LHR was delayed, so I suspect that it snowballed from there. It seems that BA799 struggles to depart HEL less than 20 mins late most days.
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Old Feb 27, 17, 12:19 pm
  #216  
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Originally Posted by techie View Post
The inbound from LHR was delayed, so I suspect that it snowballed from there. It seems that BA799 struggles to depart HEL less than 20 mins late most days.
In addition, according to this thread:
http://www.flyertalk.com/forum/briti...pparently.html
there were delays with the de-icing process, which often does add in 20 or so minutes of delay in the Nordics. Plus there was I presume the winds didn't give much scope for recovering time en route.

What you can of course do is claim anyway, and see what the reply is, but I wouldn't build up much hope here.
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Old Mar 2, 17, 12:52 am
  #217  
 
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BA0337 11 Feb issue

So as an update to my earlier post - after refusing my initial claim on the grounds I did not fly on BA337 on 11 Feb, I replied to that I was indeed not on the flight on 11 Feb as it was cancelled and that as I was over 3 hours late at my destination due to their delay that I was due compensation. I had a reply saying they agreed compensation was due and today received the funds. Great result and thanks for the advice on here - a great forum!
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Old Mar 2, 17, 2:24 am
  #218  
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Originally Posted by Boiks View Post
So as an update to my earlier post - after refusing my initial claim on the grounds I did not fly on BA337 on 11 Feb, I replied to that I was indeed not on the flight on 11 Feb as it was cancelled and that as I was over 3 hours late at my destination due to their delay that I was due compensation. I had a reply saying they agreed compensation was due and today received the funds. Great result and thanks for the advice on here - a great forum!
Thanks for reverting back with this outcome, it was helpful to hear this due to the complications on the rebooking, which aren't uncommon but will help others. Original post here:
http://www.flyertalk.com/forum/27943898-post203.html
Bit of a pity to get the initial decline, since that apart, to get payment into your account within 2 weeks or so reflects well on the airline. My bank occasionally struggles to do that.
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Old Mar 2, 17, 3:41 am
  #219  
 
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Hello again folks. I've a case where a flight was delayed because of a passenger (and their luggage) being unloaded at the gate (two minutes before STD!) because their documentation for entry into the US wasn't in order. I was under the impression that such documentation (in this case, an ESTA) was always verified at the check in desk, way before pax could get baggage into the hold.

Anyone know of any airline codes of practise or similar that stipulate that visa (etc) checks take place in the departures hall, rather than at the gate?
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Old Mar 2, 17, 3:52 am
  #220  
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Originally Posted by armouredant View Post
Anyone know of any airline codes of practise or similar that stipulate that visa (etc) checks take place in the departures hall, rather than at the gate?
I'm not aware of anything here, but I do know there typically isn't a lot airlines can do. There is an electronic check of visas and ESTAs going on in the background and in the case of BA, you won't get a boarding pass if the handshake from the CBP hasn't come through. However the CBP can and does revoke entry rights at any point, including after boarding. Anecdotally, based on admittedly a few media reports when 300,000 foreigners arrive in the USA every day, there is more of this happening recently. The main cause, from what I can see, is someone having an ESTA - so that clearing - but then there is a possible match on a name on the DHS lists and the airline is then contacted to be told that they should not transport that individual. This can happen very late in the boarding process. Unfortunately the DHS lists have some very common name combinations. (And for those so affected, they can eventually get a Redress number from the CBP which creates a record in the TRIP database which should prevent problems, that number should be included in BA's API area).
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Old Mar 2, 17, 4:38 am
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Originally Posted by corporate-wage-slave View Post
I'm not aware of anything here, but I do know there typically isn't a lot airlines can do.
Thanks, c-w-s. That's actually really useful insight, despite it indemnifying the airline in this case.
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Old Mar 2, 17, 7:52 am
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This forum has been of fantastic help to me so I thought I'd post my recent experience of CEDR in the hope of helping others.

Our IAD-LHR-LBA had a short delay leaving IAD due to traffic congestion and it was just enough that we missed our short connection to LBA from LHR. To be completely accurate, we hit the boarding pass check at exactly 35 mins to go, but the system had already re-booked us on the later flight. This resulted in a 5.5 hour late arrival in Leeds.

We duly submitted our E261 claim (via Resolver) and lo and behold we were given the usual runaround. Firstly they refused to deal with both our claims unless my friend submitted authorisation, in writing, via PAPER LETTER to an address at Heathrow as they couldn't deal only with me as lead passenger without it.

Then they ignored us for weeks, only responding when prompted by me DM'ing them on Twitter. When they finally responded they said they would not be liable to pay because the delay was due to 'air traffic control' and it was therefore beyond their control.

When I challenged back that this did not meet the 'extraordinary circumstances' criteria they said they would 'reassess' and then went quiet for weeks. Eventually I threatened them with MCOL. but still no response.

Since it was a fairly straightforward case we decided to proceed via CEDR and the experience was excellent. They passed our case to BA within 2 days of my submission and dead on the response deadline I received notice that BA had reviewed our case and we were now miraculously entitled to our compensation.

The main things I took from this painful process:
- Flyertalk is a fantastic source of information
- Use Resolver from the start - it makes things much easier if you need to start proceedings
- Don't wait months waiting for BA. If it gets past 8 weeks take action
- CEDR was painless, user friendly and effective (at least in our case) and FREE

Thanks again for all the great advice in this forum
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Old Mar 2, 17, 9:32 am
  #223  
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Originally Posted by juakkers View Post
This forum has been of fantastic help to me so I thought I'd post my recent experience of CEDR in the hope of helping others.
Thanks for posting that experience, I'm sure it will help others, not least because though we now have plenty of MCOL related tales (not that they seem to end up in court on the whole), CEDR is relatively new and we haven't seen much feedback to it yet.

Welcome also to Flyertalk juakkers and the BA forum, though it seems you have been lurking for a while, thanks for this contribution and I hope there will be many more.
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Old Mar 2, 17, 1:20 pm
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Haha thanks CWS - yes I've been lurking for a while, learning all the valuable information on here. Didn't want to post till I could contribute something.

To that end if anyone has any more questions regarding the CEDR experience then I'm very happy to try and answer given my recent experience

Julie
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Old Mar 3, 17, 5:33 am
  #225  
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EC261 and downgrades with Amex 2-4-1 vouchers

This post is an attempt to give information on what to do if you have are downgraded when using an Amex 2-4-1 voucher, a facility available to UK residents with an American Express Premium Plus card. There are similar companion vouchers available elsewhere, notably the Chase equivalent in the USA, and one can presume a similar logic will prevail. Note that this post may well be revised in the light of some customer relation issues currently passing through the system. Date of this update: 3 March 2017.

1) Background
There is some anecdotal evidence that 2-4-1 flyers are in the front line for any downgrades. Downgrading is rare, indeed you are more likely to be upgraded, but there is a specific problem with this area: though EC261 provides an across the board reimbursement mechanism for downgrades, for which "extraordinary circumstances" such as weather doesn't apply, as a matter of apparent policy, BA doesn't reimburse any value against the 2-4-1 voucher itself. Their argument appears to be that the voucher was still used, and therefore its value was delivered, albeit against a downgraded sector. They also seem reluctant to refund the cash component used with 2-4-1, which is also a mistake in my view. In very round terms, BA only pays out about half what I believe they should do in this circumstance, thereby effectively nullifying the benefit that the 2-4-1 voucher gives to the second passenger. This cannot fulfill the intent of the Regulation, and I can't see it fulfilling the letter of it either.

2) BA's approach to downgrades and 2-4-1
2a) We are still waiting for confirmation of BA's logic behind this policy, but it seems to contradict Article 3.3 of the Regulation:
3. This Regulation shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. However, it shall apply to passengers having tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator.
2b) To my way of thinking the 2-4-1 voucher falls into "other commercial programme", just like Avios, and there is no dispute - including with BA - that Avios transactions are covered by EC261. Furthermore to earn a 2-4-1 requires meeting a set of criteria with Amex, and meeting the terms and conditions of the 2-4-1. So if there is a downgrade BA needs, in my view, to make good the voucher, at least equivalent to the 30%, 50% or 75% levels associated with downgrades. BA does not willingly do this through Customer Relations, so if you want to remedy your loss, you need to read on here.

3) If downgraded - can I ask to go on another flight?
Yes, and there are cases of this happening without much problem, for example LHR-JFK/EWR, where there are a lot of service daily. There is no direct reference to "right of care" provisions (e.g. providing a hotel overnight) in terms of the Regulation's direct wording, but you could negotiate this, and my view is that is certainly the intent of the Regulation and could perhaps be pursued if BA denied payment. However there is nothing in the Regulation that prevents BA from downgrading, and no requirement to seek volunteers, there is merely a mechanism for calculating the reimbursement when it happens. More problematic are premium cabins to resort locations: often there is only one flight a day, if that, and flights can be full for some time ahead. You can ask for re-routing on other airlines, but BA are known to be reluctant to rebook Avios passengers on to alternative airlines outside the Joint Business routes. The Regulation doesn't create an explicit right to rebooking for downgrades, there is an argument to be had about whether it is implicit. And irrespective of what happens, airlines do not readily take on "consequential losses", such as car hire, hotel bookings, car parking fees, in any circumstances, so this is best covered by a good quality insurance policy.

4) Can I refuse to travel and claim a refund?
[This section regarded as tentative and undeveloped] Yes, it would appear to be possible, under the Montréal Convention BA are required to refund "proven losses and costs", and though there are various caveats about this, the clause does appear in BA's own Conditions of Carriage. In addition there is a wider scope of consumer protection laws, in terms of breach of contract, though not that the customer needs to be proportionate in his/her response. But unlike with cancellations and time changes, there is not a formal documented right to a refund in this area.

5) What is the general reimbursement for downgrades?
See the top of the thread for details but depending on distance, a refund of 30%, 50% or 75% is payable. Contrary to perhaps old information, the courts have refined this in 2016, full details here:
http://www.flyertalk.com/forum/26864509-post636.html
but in summary the reimbursement is only for the sector affected, and furthermore BA are entitled to the taxes and fees associated with your downgraded sectors. The case in the link above did not resolve the issue of airline surcharges (previously known as fuel surcharges) but my opinion is that these surcharges should be regarded in this context as part of the fare, and thus reimbursable at least in part, not part of the non-reimbursable taxes.

6) How can the 2-4-1 voucher be reimbursed?
There are a number of complexities here:
  • Conceptually it can be difficult to conceive of an enabling voucher having (e.g.) a 75% value
  • The voucher is issued by, and paid for, by Amex
  • Unlike Avios the voucher can't be purchased directly, or easily replaced, it requires a particular spending pattern to get it.
Moreover the nature of the voucher is such that they are best used for long distance trips in premium cabins: though it is possible to use a 2-4-1 to save 4,000 Avios on a domestic EuroTraveller trip, its value is more apparent on say LHR-SYD in First, where at peak times a 2-4-1 could save 400,000 Avios.

7) Valuing a 2-4-1 - a way forward
Given that the 2-4-1 can't be purchased, and BA are seemingly unable to reinstate them, the nearest way is to simply equate it to the number of Avios saved by dint of using the voucher, and then relating that to the cash cost of buying the Avios, currently approximately 1.6 pence per Avios. This is still not very satisfactory in some respects: maybe you would not have used the Amex card to get the voucher in the first place if a downgrade was on the table. Leaving that to one side, the logic can be relatively straightforward to argue, moreover this logic has worked via MCOL in the past. To work this out, and adding both passengers together here:
  1. Calculate the total Avios amount for both of you, if the Voucher was converted to Avios instead. Normally this doubles the Avios you actually used.
  2. Turn that amount into cash by charging the current going rate of 1.6 pence per Avios to buy them via BAEC.
  3. Add in the cash amount to give a total cash sum.
  4. Work out the proportion of this amount that can be attributed to the downgraded sector. If it's just one leg on a simple return then it's 50%. But it could be a bit finicky if you have several flights involved, such as a domestic connection in different cabins, but to keep it simple, just use the mileage of the impacted sector against the total mileage of the whole trip. You can find the mileage via the BA.com Avios earning calculator, using the amounts on the Highlife magazine maps, or using gcmap.com
  5. From the cash amount deduct the taxes and fees that BA had to pay for the class you travelled (not for the cabin you booked), in the direction of travel. Don't deduct the carrier surcharge, you should get a partial reimbursement of this.
  6. Finally apply the 30 / 50 /75% reimbursement level to this sum.

8) Worked example for calculation
So for this entirely hypothetical example, the figures will vary over time for various reasons. The passengers concerned have booked EDI-LHR-LAX off-peak return, First Class for the longhaul sectors, for 2 people, costing 170,000 Avios x1, £588 cash each, and a 2-4-1 voucher. On the return LAX-LHR sector alone both passengers were downgraded into Club World. BA policy is to refund 85,000 Avios x 0.75 = 63750 Avios, which for comparison below is the equivalent of £1020, and no refund on the cash component (thereby retaining the £385 carrier charge, which is legally dodgy, in my view).

Total Avios needed if no voucher = 340,000 x 1.6 pence = £5440
Cash component for taxes and fees = £588 x 2 = £1176
Total cash equivalent price = £6616
Amount attributed to LAX-LHR sector= 5456 miles out of 11574 miles total = 47.14% = £3118
Deduct taxes for CW on LAX-LHR = £37.50 x 2 = £75 (this is generous towards BA, a more complex calculation reduces this deduction)
Net of tax start point: £3043
Downgrade reimbursement percentage for this distance = 75%
Total claim for 2 people = £2282, the Avios component is £1923 (120207 Avios) and the cash component is £359. If the standard BA offer under their policy was made, the shortfall between what BA offer and the customer should get (in my view) is £1262 (56457 Avios plus £359)

9) How to process a 2-4-1 reimbursement with BA
Firstly you need to be aware that the current BA policy is not to refund 2-4-1 vouchers, and you're unlikely to get them to shift on this point. So fairly early on you need to get to a position of deadlock to enable the case to go to MCOL or CEDR instead. In the case of CEDR you need either a deadlock note from BA, the standard wording for this may involve the phrase "and our position on this will not change". Alternatively you can spend 8 weeks arguing the case and then you can go to CEDR anyway. In the case of MCOL you need to make a formal demand for payment and give BA a reasonable period to pay that sum: 16 days is the minimum for this to look viable. In either case it would be expedient to make at least one, and ideally two, realistic proposals for settlement or compromise. If BA don't accept these compromise ideas you can remove them for MCOL or CEDR purposes, but you can point out to the judge/arbitrator that you made these efforts.

10) MCOL or CEDR?
You can do both if you wish, provided you start with CEDR first. If CEDR doesn't deliver what you want, you can then go on to MCOL, though BA would be able to point out in court that you lost the argument in arbitration. There is at least some evidence that BA are not prepared to see this particular issue tested in court, in fact I am unable to locate a single specific case which has reached a hearing (but if you come across such a case please let me know). CEDR is more consumer friendly, it may take 6 or so weeks to resolve, and there is a potential charge of £25. However CEDR has been known to waive that charge if the case is properly constructed and you respect the various deadlines. MCOL will cost around £50, depending on circumstances, and could involve a court hearing, which won't happen with CEDR. Moreover the rules of procedure on MCOL are strict, but not difficult, and must be carefully followed. MCOL could potentially be faster than CEDR, notably because you can take action two weeks after giving a notice before action, but equally could be slower due to court delays. Note that with MCOL you must claim for a cash based remediation, a judge is only able to order settlement which is in their power to give, and reissuing a voucher isn't in their power. CEDR isn't so constrained, so could order restitution of Avios, or a future upgrade, for example, but it's not clear whether this can extend to reinstating the voucher, since this primarily in the gift of Amex.

11) AMEX
This area is unexplored (unless somone knows better) but Amex issues the 2-4-1 voucher based on your commercial relationship with them. It seems possible to pursue AMEX if the voucher failed to work to your satisfaction. In correspondence to date, Amex have referred operational questions to BA. One line of argument is that you want your voucher replaced since the downgrade meant it did not achieve the purpose you sought for it and which was clearly advertised by Amex. There is an appeal procedure within the finance industry up to the Financial Ombudsman, it would be interesting to see how this would work if processed.

12) Step by step summary
Best to be dispassionate, efficient and business-like about this: Señor Cruz is unlikely to turn up on your doorstep with a bunch of flowers and a written apology, so there's no point in regarding this as an emotional journey.
  1. Work out your losses (section 7 and 8 above)
  2. Make a clear claim for reimbursement of your losses to Customer Relations, making sure you mention EC261 specifically. Try to keep the initial complaint as short as possible, focusing on key points rather than dwelling on minor hassles along the way or gate dialogues.
  3. If Customer Relations refuses to refund the reimbursement (as would be expected) make one or two compromise offers "in order to reach a quick settlement and to prevent me from taking the matter further". Make it clear you will withdraw these compromise offers if a rapid settlement isn't reached. These proposals need to be viable and realistic, such as asking for a space available upgrade, or a direct refund of the calculated Avios.
  4. When it becomes clear that the policy hasn't changed in this area, ask for a deadlock letter so you can go to CEDR or indeed MCOL.
  5. Follow the links upthread to process under CEDR/MCOL, there are two templates below to assist with this purpose.


13) Template text for Customer Relations 12.2

I am writing to you in respect of PNR ABC123 [log number if applicable]. We were downgraded on BAnnn and we wish to claim downgrade reimbursement for the flight in respect of EC261/2004. Furthermore, we used an Amex 2-4-1 in this booking, and in line with Article 3.3 we seek reimbursement for this component too.

Our calculation of the reimbursement is here: [give your version of section 8 above but ensure the Avios amount is visible as well as the cash].

Please confirm your agreement to pay the above - in Avios or cash - by [today's date + 16 days].
If you get a rebuff (which would be expected) or no answer, following up with the following:

Following up on my previous communication dated [date and reference numbers]. I am disappointed that you have not agreed to my reimbursement mentioned therein. I am unable to let the matter rest and will therefore pursue the matter further. In order to reach a speedy settlement I am prepared to the following compromise [details here, eg space available upgrade plus refund of some Avios]. Alternatively I would be prepared to accept: [details here e.g. Avios but not the cash or vice versa]. I make these two suggestions purely to facilitate an early settlement, and I will withdraw these proposals on [today + 16 days] if you have not agreed to them by then. If you are unable to agree to this, kindly indicate we are at the deadlock stage so that I can take matters further without avoidable delay.
14) Template for Notice of Particulars of Claim MCOL
This, or something like it, is known to work. In this example we are assuming that the downgrade happened as a result of a cancelled flight, which BA was happy to refund, but the downgrade reimbursement was not offered for one of the passengers on a 2-4-1. The relevant field on the online form N1 is restricted to 1080 characters. Don't be afraid to put a brief summary, then "see attachment A1" and then write a one pager with short bullet points instead, you can post this in within 2 weeks of the online submission, but it's best to do it within a few days ideally. In this example I have abbreviated the text to fit 1080 characters, but the amount calculated in 12.1 above would have been communicated in more detail to BA in 12.2, so BA would already be aware of the details. Note the need for consistency if this approach is taken, if you are bringing a new calculation with the claim you best explain this via an attachment if necessary.

My partner and I made BA reservation ABC123 on [date of booking] for 2 x First class flights EDI-LAX return via LHR. Payment was made with Avios (airmiles) + an American Express Companion Voucher + cash. On [date], the return date for LAX-LHR, the defendant advised cancellation of BA282. At LAX we were downgraded to Club World (business) on later flight BA286.
This EC261/2004 claim was partially settled for the cancellation, but the defendant maintains liability for the downgrade is limited to refund for one passenger only, which is contrary to Article 3.3. The claim is for refund for the second passenger of cash equivalent of £903 (the cost to buy Avios from the defendant), plus refund of cash fees for both passengers of £359 after deduction of taxes, both at 75% reimbursement for the sector per Article 10.2.c.
The claimant claims interest under section 69 of the County Courts Act at the rate of 8% a year from [date] to [date] on the total of £1262, plus interest to the date of judgment or earlier payment, at a daily rate of £0.28
BA's usual process is to file a reply saying that it will be issuing a defence, specifically an Acknowledgement of Service, which is a way to get more time and information, but then may well telephone / email thereafter to indicate that it won't be defending the case. This Acknowledgement gives BA an extra 14 days (so 28 days in all) to respond. BA has also been known to stop a case by telling the court that the full settlement has been reached without contacting the complainant first! However in that case BA will indeed pay off the case: don't forget to collect your court fees in this process, but you probably won't get the court sponsored interest payments. Though this forum's experience of this is limited, if BA did go to a court hearing on this, it would be worth your while to prepare a "skeleton", a bullet pointed guide for the judge, stating (a) the main facts briefly (b) the elements which there is no dispute over, notably that the downgrade happened (c) the points of law you are relying on for your case. This skeleton will also walk the judge through the paperwork associated with the case, by referring to, say, an email in appendix X, as needed.

15) Template for CEDR submission
Awaiting example. However (June 2017 )recent CEDR rulings in this area have backed the airline and I'm not sure CEDR is the best way forward here.

16) Would BA downgrade one or both of us?
From anecdote, usually both passengers are downgraded but there are occasions when there is just one spare seat available on the aircraft. The terms and conditions of the Voucher state that both travellers should travel together in the same cabin. So if BA suggests that only one of you need to be downgraded, and that isn't acceptable, make it clear that as far as you are concerned the downgrade would be applied for both passengers and that you will pursue the downgrade for two passengers in line with the voucher's T&Cs. BA also avoid splitting couples if one of them is a particularly nervous flyer. Whether a part voluntary, part involuntary downgrade, considering the T&Cs, is acceptable to the court is something only a judge can decide so be aware of the risk there.

17) Should I use a no-win-no-fee agency to process this?
My view is that this process is reasonably straightforward, that external agencies or even claims channels like Resolver don't bring anything extra that a bit of organisation and research can't deliver. However you do it, you still have to provide the core information and evidence, so you may as well do it all yourself. Moreover a non UK based agency may be reluctant to take on a 2-4-1 case due to the complexities involved, they will nevertheless want their cut of any reimbursement.

Finally: remember downgrades are rare events, it probably won't happen.

Last edited by corporate-wage-slave; Jul 28, 17 at 2:50 am Reason: CEDR comment.
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