Phlump

Having used this forum a few months back to assess my options before I lodged my dispute with BA, I thought it might be useful to others to summarise my experience several months in. And also to ask for advice on where I might go with it next.


Having lived in Dubai for several years, and now in Singapore, I normally fly Emirates. And I fly premium a lot. Not that that should in any way change how BA treats me compared to anyone else who suffers an imperfect service.


Back on 22 March 2017, I flew CPT-LHR on BA58. With work the day before the flight and the day after, I flew overnight in Club World planning to sleep on the flight. Shortly after take-off, I tried to recline my seat and found it was broken. No recline at all.


After 20 minutes stood in the aisle watching several FAs try to fix the seat, they decided there was nothing they could do. And, with no alternative seats on the flight, I was stuck with it. After assuring me I would get a full refund, and placing an (entirely ineffective) cubic bag of headphones between my seat and the foot stool to try to create some sort of lie-flat option, the FA left me to it.


I tried to sleep, but couldn't. I gave up and sat bolt upright for the next nine hours watching the time tick by. As we were beginning our descent, the FA came by looking rather sheepish, and said that, having checked, it turned out that I would only be getting BA's standard compensation of a £50 voucher. Recognising my, erm, disappointment, he agreed to lodge a complaint for me.


The complaints service, as many others seem to have found with BA, is essentially an exercise in them responding to every email with a shallow apology and a repeated offer of the same £50 voucher. After three attempts (including making an offer to BA to accept compensation of the difference between the Business Class and Economy Class fares), I emailed the executive team, including Alex Cruz. My next email was from the same customer services guy, thanking me for contacting Alex and the offering me the same £50 voucher. I emailed the executives once more, and this time I got an email from someone new in the customer services team offering me the same £50 voucher, closing the discussion and inviting me to lodge a case with the CEDR.


I lodged the CEDR case using their website which, despite the fact that the instructions clearly said a case could be opened either a minimum of 8 weeks after the incident or when the airline has suggested resolution through the CEDR, wouldn't let me lodge the case until the 8 weeks were up.


BA then offered me any one of a £200 (or was it £300?) voucher, 30,000 Avios points, or an upgrade on my next BA flight. After the appalling way I had been treated so far, I had (and still have) no intention of ever flying BA again, so none of these offers had any value to me. I pointed that out, and BA had the temerity to respond saying that a reclining seat was only one of the many benefits of flying Club World, including use of the lounge, an amenity kit and, with no hint of irony, a luxury fleece blanket (which, as I noted, might have had some value if I'd been lying on a seat that reclined).


The case then went to adjudication, which took several weeks longer than the website suggested (during which time, my requests for an update through the CEDR website were all ignored). The decision came through yesterday that, in line with the Montreal Convention, there is no compensation due for "loss of enjoyment" and I am therefore due no compensation. Case closed.


This was never about loss of enjoyment for me. It's about not being provided with the advertised service for which BA charged over £2,000 (including a return Economy Class leg which I only booked because that was cheaper overall than a simple Business Class single ticket - I had no intention of taking that second leg flight). I don't know whether that means I need to rely on the Consumer Rights Act or Trading Standards instead. Any advice as to where next gratefully received.


The most disappointing thing? BA genuinely couldn't care less. They made every effort to fob me off over the last 7 months. I will never fly with them again, and will tell anyone who'll listen that they should do the same. I work in business and things go wrong. It's how business react when they do go wrong that defines the business. And if this is how BA wants to define itself, then I'll stick to Emirates, thanks.

Fitch

Sorry to hear of your experience, but it does illustrate for me one of the risks of going to arbitration/law - however much time, money and emotion you invest in your case, the outcome may still go against you

I think in your position, I might have taken a deep breath and accepted the Avios. As I value them at 1p each, I would be confident of getting at least £300 of value and I could spend the lot without ever setting foot on a BA plane again...

On this valuation, assigning a nominal cost of £400 to the Y return portion of your ticket, the J part cost you (roughly) £1600, the offer is (again roughly) about 19% of your ticket price.

There is no right answer as to whether that is enough for a loss of 1 night's sleep, but it seems to have been BA's best & final offer so it was what it was.

Sometimes you hold 'em, sometimes you fold 'em

corporate-wage-slave

I think I'd need to pour through the CEDR judgement and BA's submission to see exactly what the issue would be there. I'm not wholly surprised: from what I've picked up so far, CEDR is good at dealing with EC261 and aviation regulations, but isn't so good on breach of contract issues let alone the general principles of consumer law. Whereas MCOL (Money Claim Online, the UK's small claim court system) it may be more the other way around. MCOL remains an option to you, though of course BA may well deploy the CEDR judgement to the court.

Fitch is right that the Avios offer can be used on Iberia or any other oneworld airline (and a few others as well). Plus car hire and hotel usage (there is a tactical use there where you may find it saves you a lot of money). You can also use them to book BA services for friends and family too.

Welcome to Flyertalk Phlump, welcome to the BA forum. Thank you very much for giving us this insight. One of the huge problems I have in this area is that people often tend not to tell us about the outcome of their cases, even if there is no Non Disclosure in place. Admittedly this is complicated by the Mediation channel in MCOL has internally a NDA process, however judgements themselves are not NDA. So if you do decide to take it further, please keep us updated.

scillyisles

I would suggest the Op goes to MCOL as this is a contractual issue where BA has not provided the service they advertise.
This case illustrates what I have suspected all along in that CEDR is biased towards the airline in areas like this. Those who have been recommending CEDR for cases like this need perhaps to reflect on this decision.

Phlump

Thanks both. The CEDR decision is only binding if I choose to accept it. I have, perhaps unsurprisingly, rejected it, so all other options remain open to me.


I know that I could have accepted the BA offer. However, that would have ended the discussion. This was never about getting the most that I could out of BA. This was, and still is, about pursuing a fair outcome. I'm happy to end up with nothing if I know I've done everything I can to get that outcome.


As I say, the adjudicator's decision relied solely on the Montreal Convention and surrounding case law; in particular, Cowden v BA, which concluded as follows:


“In my judgement the position inlaw could not be clearer. The flight from London to New York was booked under acontract for carriage. Therefore the Montreal Convention applied to theexclusion of domestic law. The binding decisions of the House of Lords and thepersuasive decisions of the county courts, all of which are harmony with thedecisions of the United States and Canada, make it plain beyond furtherargument: (i) articles 17 and 19 of the Convention do not permit the recoveryof damages for distress, discomfort or loss of enjoyment unless an actualmonetary loss or physical injury can be established by expert evidence; and(ii) a purpose to provide peace of mind or other enjoyment cannot be read intoa contract for carriage by air from A to B. It is a shame that these simple ifarguably harsh principles were not explained to the respondents at the earliestpossible stage.”

I'm still interested to know whether alternative channels are available to me under UK consumer regulations. And I'm happy to provide updates as I go.

simons1

Worth reviewing other recent/similar threads like this one.

http://www.flyertalk.com/forum/briti...en-seat-j.html

I would crack on with MCOL.

corporate-wage-slave

Thanks for that extract, which is most illuminating, though not in a good way. I'm not a lawyer, but I cannot for one moment think that the Montréal Convention can simply wash away the basic provisions of contract law. Hopefully a few our our learned friends here can give their thoughts on this. If your case was purely based on Montréal then I can understand that outcome.

NWIFlyer

On the face of it, this seems an unfathomable decision and wholly wrong in legal and moral thinking (said as another non-lawyer). It even, I'd suggest, brings the whole CEDR process into disrepute.

However, I wonder if the OP might feel able to share their submission to CEDR? There is a belief that trying for the absolute maximum compensation when only a partial amount would ever be considered reasonable might count against the complainant.

I ask because the opening post mentions that the FA thought a "full refund" would be given, and I wonder if that's what was asked for. If so, this simply is not realistic - the OP clearly still had access to the lounges, was fed and watered and did make the journey. Those things do have inherent value within the ticket price, as BA has said - as does the provision of a flat bed. If the OP had put a value on the flat bed alone - and given the night flight and duration, I'd have thought around 50% of that sector value would be reasonable - would the adjudicator have taken a different line?

Phlump

I did seek the full amount in the CEDR claim. However, the rules stated that an adjudicator may seek to award less than the claim.


Before the CEDR process, I did suggest to BA that a fair offer might be the difference between the Business Class and Economy Class fares, reflecting the fact that they still flew me from CPT to LHR at the time they said they would. Just bolt upright.

Frankly, the adjudicator's decision suggests that I'm due nothing as a point of law. That, it appears, is what the CEDR seeks to determine. Not whether there is some other, fairer, outcome.

Dave_C

You've been exceptionally patient with BA. I'd be straight to MCOL for a full refund of the ticket price. Pretty outrageous behaviour by them.

I personally wouldn't have bothered with CEDR myself; their decision seems deficient in many ways.

NWIFlyer

Well, I'd say there's what the rules say and the more practical view that the claim might be seen as too frivolous or outrageous. That might just encourage the adjudicator to find a reason to reject it under rather spurious grounds, and indeed for BA to fight it harder.

As and when you go to MCOL I'd therefore think about changing what you're asking for - as that might well negate some of BA's case where they will surely present the CEDR finding. More learned people than me will be along shortly, I'm sure, but I'd suggest you need to put a sensible value on the contractual breach - for a (say) £1000 sector value, maybe £500 - and sue for that amount. No court in the UK is ever going to award you the full return fare - if you consider EC261 principles (which don't apply here, but as a benchmark), and argue that you had a Y experience (which still wouldn't be true - an upright J seat is still better than a WTP seat, let alone a WT one) even that would only award you 75% of the sector value less taxes.

Krisz

I'm not a lawyer, but wanted to see that exact case what CDER is using against this.

It was about missing bags.

Carriage by air - International carriage by air - Carriage of passengers - Lost luggage - Whether passenger entitled to compensation for distress and inconvenience - Montreal Convention, 1999, article 17 - Carriage by Air Act 1961

The respondents, Mr C and Ms M, had booked a flight to New York for a holiday. The booking was made through American Airlines, but BA, the respondent airline, was to provide the connecting flight from Manchester to Heathrow. That flight was delayed by fog and the respondents missed their flight to New York. A replacement flight was organised, but the respondents' four bags went missing. One was never recovered and the remainder took several days to be reunited with their owners, during which time BA did not communicate with the respondents and the two telephone numbers they had provided to the respondents were always engaged. BA had over time paid various sums of monetary loss arising from the events but had declined to pay compensation for distress and inconvenience. This was the appeal of BA against the decision of Deputy District Judge Cunningham awarding the respondents damages in the sum of £1,000 jointly in respect of distress and the fact that peace of mind had not been provided by BA on the flight from London Heathrow to New York.HH Judge Orrell QC held that the journey from London Heathrow to New York was international carriage and that therefore the Montreal Convention 1999 applied to the exclusion of the common law. Under that Convention, damages for psychological and emotional consequences was excluded. The judge also stated that the respondents' position would have been no better under common law.

Phlump

Fair, but the adjudicator clearly didn't apply that thought process to BA's derisory offer!

simons1

The whole 'mediation' arrangements seems quite a cosy number for the airlines.

To me MCOL seems the logical route for many things.

corporate-wage-slave

I've highlighted three sections there. Thanks for digging that out.

There is, surely, a difference between distress/inconvenience (which may have been the OP's start point, and doesn't work via MCOL very well either) and BA simply not providing the service that they clearly advertise for Club World, and for which the OP felt that s/he had paid? The latter looks to me to be a breach of contract and other defined consumer laws, rather than purely relying on common law.

I can see the CEDR adjudicator may well have smiled at a submission asking for a full refund, if it was on the basis of distress and inconvenience then that was destined to fail, and asking for an unreasonable amount seems to me to be a badly advised, and an MCOL approach needs to have a more reasonable start point.