corporate-wage-slave

OK, it's sounds like the flight has been Closed on FLY. That has to happen 30 minutes or so from anticipated departure to ensure baggage is reconciled, standbys are processed and the load calculations completed. Now the agent could have rung the Flight Management Unit to get the flight reopened but I imagine on a day like that they would be loathed to do so (and perhaps ordered not to do so) since the FMU would be flat out. Even if the phone was answered, then to shift some passengers from T5's shortest route by a few hours to earlier in the day may not go down too well. That said, that's the airline's mechanics and the Regulation has an inbuilt bias to the passenger. Nevertheless what this will probably boil down to is whether the judge is convinced by two competing arguments, both of which seem to have merit. I'd probably put it a bit higher than simons1 since if it was a 50/50 call you should win, but I certainly agree that it's not clear-cut, the Regulation was not built to help if the weather is not good. Bad weather at Europe's most congested airport is bad news.

JackFlash

UPDATE: heard back today from BA confirming that I'm due €250. Thanks for the advice here.

Courmisch

I filed on March 13th a claim for 600€ plus airport hotel room rate for axed BA268 on March 11th. BA agreed on April 9th, 27 days later (including Easter).

So unless BA has a stealth prioritization for non-BAEC Oneworld elites, I assume the claim processing time is now down to less than 4 weeks

testycal

Denial letter in response to my request....in red below agent advises CEDR is FINAL DECISION....FAQ from CEDR site states...I am misunderstanding the process or is incorrect information being communicated by BA? Does not a rejection still allow one to pursue a legal proceeding?

If you are unhappy with the adjudicator's decision you may reject it. The adjudicator's decision only becomes binding if you accept it within six weeks of being told what the decision is. The decision cannot be appealed, only accepted or rejected by you - if you accept it the airline has to take the required action.

You can refer your complaint to the Centre for Effective Dispute Resolution (CEDR) for an independent decision to be made. CEDR is an independent dispute resolution provider, certified by the Civil Aviation Authority, to adjudicate disputes between airlines and their passengers which haven’t been resolved through the airline’s own complaints procedure.You can find out how to refer your complaint to CEDR by visiting their website: CEDRPlease note that the scope of the adjudication scheme is limited and it could be that your complaint falls outside of it. If you choose to contact CEDR, they’ll be able to advise you if they’re able to deal with your complaint. You may also use the European Commission’s online dispute resolution platform to submit your complaint if you wish. This can be done by completing the electronic form available via this link: https://webgate.ec.europa.eu/odr/main/?event=main.home.showIf your claim falls within the scope of the CEDR Scheme Rules and your application to CEDR is accepted, any previous offer of settlement made by British Airways will be withdrawn. If the application is taken to adjudication, the adjudicator's decision will be final.

I hope this helps and thanks again for contacting us.

corporate-wage-slave

Yes it does, certainly in the UK since the fundamental basis of EC261 is incorporated into UK law via a Statutory Instrument. CEDR is a mechanism, indirectly prescribed by EC261 (given that the CAA are supposed to handle this area) but it can't block the court process. So if you fail at CEDR level you remain free to take it to MCOL thereafter. However if I were BA's legal team I would certainly bring the CEDR's ruling to the judge's attention and I suspect that would hinder your chances of success, unless you can clearly point to an argument that CEDR overlooked or misinterpreted. You may even become liable for BA's legal costs, or a part of them, if the judge goes really against your claim. What you are seeing (I think) is that as far as CEDR and BA are concerned this would be a final binding outcome - it couldn't be binding on the Courts. I am not a lawyer.

As noted in my reply 235, I personally doubt CEDR is a good way to proceed unless you have an overwhelmingly powerful case, which isn't my interpretation of your previous posts. If I felt duty bound to proceed with this (and I have my doubts) personally I'd go MCOL rather than CEER.

heggers03

UPDATE: After multiple refusals via webform communications, resorted to detailed MCOL notice letter and BA have now agreed EU261 compensation. Spot on advice C-W-S, thank you.

testycal

I believe that non binding mediation ie CEDR cannot be brought to the attention of the court as the process should be a without prejudice process that is irrelevant to the ultimate disposition of the matter.

I realize CEDR is relatively new and note there is a Case Study link that has no content unfortunately.

The CEDR Rules like any adjudication body, task the decision make with making a decision based on the evidence. As I have noted before, my potential dispute involves delay due to de-icing issues although it could be argued that the delay was multi faceted. When dealing with the airline's "weather related" defense do any FF's have information to share whether the airline can simply make that statement and rely on it as a defense without more or will the airline be required to give details or provide other reasons for the delay that are tangentially related to the delay? For example...ATC staggered departures because of runway conditions (this was never mentioned or raised by the Captain...it was always about the de-icing queue)....will the airline be required to divulge its capacity to de-ice or can it simply take the position that the weather required de-icing full stop? I do not pre judge the facts but success or failure on this issue involves whether BA at T5 did everything it reasonably could to prevent the delay. That involves knowing BA's capacity to de-ice, whether it had operational difficulties in meeting demand ie had supplies of de-icing fluids etc. Our delay was 4 hours. Any information or comments would be helpful and thank you for comments to date. Regards to all

KARFA

Out of interest is there any basis for your assertion apart from your belief?

Btw if the CEDR found in your favour, and BA were the ones taking it to MCOL I bet you wouldn't be so concerned about mentioning the CEDR decision to the judge at every possible opportunity

corporate-wage-slave

I'm not a lawyer, but I do know of several court cases where the fact that a case had been declined by CEDR was mentioned in court. It's a two way thing since if CEDR gets a point of law wrong (and they often do) the judge tends to enjoy pointing this out in some detail. But the basis of why it can be raised is that there is a general expectation that both sides in a dispute should try to resolve issues through dialogue and negotiation, before involving court time, and since the small claims court is a judicial and financial "loss leader" (ie. the system isn't self financing), anyone who goes into Small Claims in a headstrong manner will soon be put in their place.

Having said that, that is why I suggested going to MCOL first, since it switches the process in the passengers favour: it would be up to BA to prove extraordinary circumstances, it's not your job to prove the reverse, other than to (e.g.) give examples of other flights / other airlines that got through the system much faster than you did. Horses for courses: if it was an uncontroversial and robust cases, CEDR is ideal. This doesn't feel like one such case.

simons1

Well the CEDR's own website says "Mediation is confidential and 'without prejudice' (nothing said in the mediation is admissible as evidence in legal proceedings)"

https://www.cedr.com/solve/mediation/

Unless you are suggesting this doesn't apply to airline cases?

corporate-wage-slave

I think that is a reference to the Mediation stage of CEDR, where both sides get around a virtual table to resolve issues. I don't think that is the same as CEDR rulings or conclusions.

KARFA

Indeed. The section quoted by simons1 relates to the process of mediation between two parties. In a CEDR dispute for a consumer vs airline the independent professional adjudicator him/herself will make a decision based on the evidence if the claimant and airline are unable to find a mutually acceptable resolution to the complaint through said mediation. 'Without prejudice' relates to the ability for both parties during a mediation to try and have an open discussion about resolving it without the contents of that discussion being used against them by the other party in front of a judge/adjudicator. It does not mean the actual evidence submitted or decision itself can't be raised with a judge at a later court case.

This page explains CEDR in relation to aviation https://www.cedr.com/aviation/

EDIT: just to add, since the quoted line states "Mediation is confidential and 'without prejudice' , there is some misunderstanding that CEDR decisions are possibly confidential to the extent that the parties cannot disclose the decision to anyone else - this has been discussed before in this thread and on this board. The answer seems to be they are not. I did a quick search for the previous discussions on this and there is some in the 2017 thread around post 1622. I seem to remember someone else posting who had been successful at CEDR and confirmed that there was no restriction on them for disclosure of the decision.

henners

This isn't directly related to BA, but it's something I haven't seen mentioned elsewhere and is relevant for anyone thinking of pursuing a claim which is contested by an airline.

I recently had a flight which was delayed. Landing and engine shutdown were under the threshold for compensation, but doors opened a few minutes later, over the threshold. The airline is not BA, but is UK-based.

I note C-W-S previously suggesting that BA are pretty good at identifying these cases and manually investigating actual arrival time; the airline I flew on was not so diligent and denied the claim.

I took it to MCOL, explictly noting the point about door opening time, and the airline filed a defence ignoring this and restated that the aircraft "arrived" on time, with supporting evidence of a screenshot from a management system stating a delay of just under the threshold, which I assume is driven by ACARS and the engine shutdown. The thing which was new to me was what happened next:

The case was transferred to an airline-specific claims court in Liverpool, who (without my intervention) reviewed the case and instructed the airline to submit a declaration of arrival time - noting the doors-open case law - signed by the flight crew or handling agent. They had two weeks to do so or the case would be immediately struck out in my favour. That time has passed and I'm now going through the process of turning the claim into a judgement which I can enforce.

All very impressive from the court - really encouraging that the central point of my claim was identified and formally addressed without my physically having to go to court, or even having to prepare to do so. A big thumbs up to the courts service and the small claims process.

simons1

In any case I don't think an unsuccessful attempt at mediation would make much difference. I'm sure a legal case would be determined on the legal principles of the case rather than what may have been discussed before.

But I agree with what is said upthread, personally I would only use CEDR for something fairly cut and dried.

testycal

Decisions made in a tribunal designed to constitute a mediation/non binding arbitration process are irrelevant to a court of first instance jurisdiction. Firstly there is no appeal from CEDR decisions and likely not even on principles or lack of natural justice. So...short answer...no I would not mention the CEDR decision if in a court proceeding because it is irrelevant and any Judge worth his/her salt would gently remind myself or my counsel once only of that fact.