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The 2018 BA compensation thread: Your guide to Regulation EC261/2004

The 2018 BA compensation thread: Your guide to Regulation EC261/2004

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Old Dec 17, 18, 5:14 am   -   Wikipost
Please read: This is a community-maintained wiki post containing the most important information from this thread. You may edit the Wiki once you have been on FT for 90 days and have made 90 posts.
 
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Wiki Link
Link to Text of the regulations in PDF format

How about a Wiki to post EU comp given/denied as well as results for any CEDR or other process. Especially concerning the 787 issue as there are going to be many claims given all the cancellations.

Mine was April 22 BA280 LAX-LHR cancellation 4 days before flight and rebooked on later flight and arrived 4.5 hrs later than origianlly scheduled. BA's response was to deny for "operational" requirements though the 787 "tentatively assigned" G-ZBJG was used instead for a LHR-YUL flight that same day. CEDR filed and awaiting their initial review. Sept 3rd UPDATE: CEDR decision in Article 7 comp awarded in the amount of 600 euro as even though extraordinary circumstances are present in an engine defect as this, BA didn't show that they took reasonable steps to avoid the cancellation as they have known since Oct 2017 of this issue.
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Old Jan 1, 18, 5:58 am
  #1  
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The 2018 BA compensation thread: Your guide to Regulation EC261/2004



1) Introduction
This thread is intended to help FlyerTalkers who think they may be entitled to EC261 compensation when flying on British Airways. This is not about the rights and wrongs of compensation culture, this is merely a set of reference material to help flyers. It is also not exhaustive, so we are focusing on the BA aspects of this. This thread could go on indefinitely, so we merely point to other places for more detailed guidance. At the end of this post is a list of links which you may find useful, and then the following posts give some further information of some key topics. We also need to point out that these hints from an internet bulletin board are no substitute for professional legal advice.
With best wishes and happy trouble-free flying from:
corporate-wage-slave, Dave Noble, dunk, NickB, Prospero, RedVee, Stez, stifle, Tobias-UK, uk1.

2018 Update:
This thread is renewed annually to keep it manageable, however the previous threads are extremely valuable so it is certainly worth going back to previous threads for insights into the workings of EC261/2004. Particularly last year's thread for 2017. The main development in 2017 was greatly increased use of CEDR, leading to some delays there, and the implementation of the Mennens case which allowed airlines to cover necessary taxes and fees into downgrade reimbursement. In terms of Britain exiting the European Union, the relevant aspects of EC261 are already incorporated into UK law via Statutory Instruments and it is highly unlikely we will see any changes in this area certainly in 2018, and possibly for some time thereafter. By all means look at the older threads for assistance but don't hesitate to reach out for assistance if you can't see an obvious answer.

Previous threads can be found here:
The 2017 BA compensation thread: Your guide to Regulation EC261/2004 - the thread for 2017.

http://www.flyertalk.com/forum/briti...61-2004-a.html - the thread for 2016 - lots of experience in here.

http://www.flyertalk.com/forum/briti...61-2004-a.html - the thread for 2015, some of it now overtaken by more recent events.

http://www.flyertalk.com/forum/briti...61-2004-a.html - this is the 2014 thread, which started before the Huzar case was concluded.

http://www.flyertalk.com/forum/briti...3-archive.html (this was a beta thread, a lot has been overtaken by events).

Important point: if you wish to have a claim for EC261 compensation considered, you need to specifically ask for it. BA are unlikely to volunteer you for compensation unless there is a specific request.

Contents
Post 1 - this posting - a short summary, and a suggested process for claims
Post 2 - Duty of Care
Post 3 - Rights to compensation
Post 4 - Rights to reimbursement or re-routing
Post 5 - Downgrades
Post 6 - Complex ticketing.

2) Insurance
Please don’t forget to get good quality insurance. These regulations does not cover every situation, notably consequential losses (see below), and it is important to either get insurance or be in a position to self insure. Remember to programme your insurance details into your mobile telephone. For those based in the UK, the following travel insurance policies have been recommended by FlyerTalkers: American Express (though check to see if you are covered if you did not use your Amex card to buy the journey), Aviva, the Co-Op, Hiscox, John Lewis, Marks and Spencer, the Post Office. Note that some insurance policies have a legal advice component, which maybe useful in these situations.

3) Summary
On 17 February 2005, the European Union implemented Regulation 261/2004 (hereafter known as EC/261), designed to give protection to air pasengers for delays, cancellations, downgrades and cases of denied boarding throughout the European Union, and also to flights operated by European Union airlines, which includes British Airways. So all flights, from all airlines leaving the European Union, Norway and Switzerland are covered, as well as flights to the EU+Switzerland+Norway if provided by British Airways and European airlines. Airlines are obliged to inform passengers about their rights at check-in, and to provide more detailed information upon request. The burden of proof for most of the regulations lies with the airline, so it is up to them to prove they informed you of cancelled services or that the cause of the delay was "extraordinary circumstances".

4) Scope of EC/261
EC/261 covers the following areas
-Denied boarding (you turn up at the airport on time but are not allowed on to your booked service)
-Downgrades (flying at a lower class than booked)
-Delays (when you arrive late at your destination)
-Cancellations (when BA cancel your service altogether)
For the purposes of the regulations, you need to have a confirmed reservation, accepted and registered by the airline, and presented yourself for check-in before the deadline mentioned in Manage My Booking. Note that this is not the full scope of customer protection - you may be covered by other aspects of contract law, for example. The Warsaw Convention covers air disasters, the Montreal Convention covers damaged baggage and related areas. These are beyond the scope of this thread.

5) Categories of flights
First thing to understand is: which category does your flight fall under? This determines the level of compensation payable.

Category 1 - under 1501 km - LHR to FCO (Rome) is 1446 km
Category 2 - 1501 km to under 3500 km - LHR to BEY (Beirut) is 3486 km
Category 3 - 3501 km and higher

[Not applicable for BA's current routings, but journeys within the EU greater than 3500 km fall into Category 2]
You can Google distances to find out distances, but travelmath.com is one of several websites in this area;

6) Denied boarding
This rarely happens on BA, but if the flight is overbooked, BA is supposed to ask for volunteers – passenger who are prepared to travel on another flight in return for compensation. This level of compensation is open to BA to define. If there are involuntary denied boarding is necessary then the compensation is as outlined below in section 11. This provision also applies for those wrongly denied boarding for reasons other than overbooking. For example if an airline refuses travel because they had wrongly assumed the passenger did not possess the correct travel document or entry clearance. Note that just because some other website suggests that the flight looks overbooked does not mean that BA will be denying boarding or downgrading. It happens, but it's quite rare, and if it is going to happen it will become apparent only in the last 2 hours or so before departure.

7) Downgrades
If BA downgrades your flight of travel you are entitled to a refund on your ticket. This is 30% for Category 1 flights (see section 5), 50% of Category 2, 75% of Category 3. Now it is not entirely clear in the Regulations as to whether that is the whole ticket, including unaffected sections of that ticket. Therefore the range of options varies from 75% of the whole ticket (out and back) as purchased, down to 30% of the implied cost of the sector affected (which could be a relatively small amount of money if that sector is a small add-on to a long haul journey). However the CAA has advised us that their interpretation is that the whole ticket is used to calculate downgrades, not just the affected leg; equally we know of situations where BA only compensated the effected leg. Also note that you may be entitled to further consumer protection: for example if the Regulation's compensation was less than the amount paid the upgrade (such as an airport upgrade) then there may be scope for a challenge under contract law.

8) Delays and cancellations
Cancellations and delays against your final arrival time entitle you to a duty of care, and in many cases compensation. This area has recently been clarified in appeal judgements. To simplify a complex area, delays greater than 2 to 4 hours can result in compensation of between €125 and €600 per person (depending on flight category), if BA were responsible for that delay. See sections 11 and 12, and Post 3 and 4 for more details about compensation and reimbursement/re-routing respectively.

9) Duty of care
See Post 2 for a detailed examination of this area. In all situations BA should offer a duty of care to passengers facing travel disruption in all situations where you hold a confirmed reservation. The regulations specifically include: food, drink, hotel accommodation if any overnight delay, and communications. Typically BA hands out vouchers that can be used in airside establishments, or will arrange hotels for you - often BA does a reasonable job in this area compared to other airlines. If you have access to a lounge then it is unlikely to be reasonable to ask for additional food and drink vouchers, unless the lounge facilities have only a restricted range of refreshments.

10) Changes to existing bookings
If you are given more that 14 days notice of a change then you are not entitled to compensation for the delay. You are entitled to a refund or a rebooked service, it's your decision. See Post 3 about the duty of care aspects.

11) How much do I get?
This section applies for delays, cancellations and denied boarding. Below gives the standard amount of compensation payable if you are delayed by more than the number of hours shown. Note that an airline is able to invoke "extraordinary circumstances" as a reason for not paying compensation for delays and cancellations, but not for denied boarding or downgrades.

11.1) For delays (not cancellations)

See post 3, question 2 for the full payment matrix.



To be clear: a flat delay, without rerouting and/or cancellation, needs at least 3 hours late against the advertised arrival time, and doors opened ready for passengers to leave. So probably for most passengers, where they find themselves waiting at an airport, or waiting for take off, for a long period - it's only the arrival time / door open that matters and if must be at least 3 hours for eligibility for any compensation applies. For longer trips - over 3,500 km (basically the distance from London to Beirut) - then you will get full compensation after a 4 hour delay, and a reduced 50% rate for delays between 3 and 4 hours. This is purely for delays, and it is calculated on arrival time, not all the hanging around at departure.

A Reduced Amount (50% reduction) applies if BA re-routes you on another service that gets you to your destination, see the next section on cancellations. If you are NOT rerouted, just delayed, AND your delay is below three hours, you are not eligible for compensation under EC/261. See section 5 on categories and section 7 for the separate arrangements for downgrades and finally Post 3 below has more detailed information on this area. In some cases BA will hand over a pre-paid debit card, holding some or all of this money - you need to check whether acceptance of this card is for goodwill, towards meeting their EC/261 responsibilities or both. Generally BA treats it as a payment under the Regulations, in the case of downgrades it is unlikely to be the full amount.

[There is often confusion in this area and part of the reason for this is that there is nothing written in the Regulations about paying compensation for delays. The law has changed as a result of judicial rulings that have related delays to the Regulation's wording on cancellations].

11.2) For cancellations

For cancellations and / or when you are rerouted on to another service, some shorter delays attract a half rate payment. If the reroute involves departing less than an hour early, AND arriving less than 2 hours late at the original destination airport, there is no compensation, no matter what (Regulation 5.1.c.iii). The following diagrams explain what happens if the delay is longer and/or you need to leave more than an hour early.







12) Which delays not entitled to compensation?
Weather delays, strikes, Airport Traffic Control problems. Basically any item outside British Airways direct control. Plus all delays below 2, 3 or 4 hours, depending on category, unless BA re-routes you (see end of section 11). There is a grey area in respect of Category 1 delays between 2 and 3 hours. The appeal rulings certainly gives protection from 3 hours, but since the original Regulations did not clearly specify delay compensation there is a potential gap here. On the other hand delays from rerouting, cancellations and denied boarding do kick in for category 1 delays under 3 hours. See also Post 3 for more information.

13) When can I abandon my flight and get a refund?
After 5 hours delay. This is in BA’s Terms and Conditions, and applies even if BA is not at fault (e.g. weather).

14) What about technical failures causing delays?
Broadly speaking airlines cannot use technical failure to avoid their responsibilities in this area, and therefore compensation is payable. However it is possible for some technical failure to be considered “extraordinary circumstances”, see Post number 3 below.

15) What about knock-on effects?
This relates to disruption caused by aircraft being in the wrong place, at the wrong time, leading to you being disrupted. For example if you are due to fly from Cape Town to London but your aircraft is still stuck in New York due to a blizzard. In that situation you should be entitled to compensation.

16) My flight was outside Europe, am I still covered?
The regulations apply to all flights departing the EU, the European Economic Area (Norway, Iceland. Litchtenstein). plus Switzerland; and to journeys on EU carriers to these parts of Europe. This covers the majority of BA flights, but not Comair flights around South Africa, nor people on journeys such as BAH-DOH, SIN-SYD, and POS-UVF. However if you have been successful in making claims involving these sectors please let us know. See also Post 6.

17) I am on a connecting flight. I am in LHR T5, my next flight is now so late it’s not worth me going. What should I do?
The airlines probably don’t like this feature of the regulation, but if your connecting flight is delayed by more than 5 hours so as to make the purpose of your travel meaningless, you are entitled to be flown back to your starting point AND get a full refund of the entire journey. Note that BA specifically requires evidence as why the trip has to be abandoned. See Post X for more details.

18) Will BA re-route me on to another airline?
Generally BA are reluctant to do this, particularly if the other airline is not a oneworld carrier. However BA recently seem more willing to do this to minimise compensation payments. However note that this seems to be restricted to changes made by airport based staff. BAEC telephone agents and online services do not offer this option, however the GGL phone line sometimes rearranges flights on other airlines.

19) BA flew me to LGW, but I was booked to LHR, can I claim the cost of getting to LHR from BA?
Yes, if BA made that decision for you, so long as the cost is reasonable.

20) BA cannot get me to Edinburgh on time but can get me to Newcastle, and I can take a train from there. Can I claim the cost from BA of going from NCL to EDI?
If your booking is for Edinburgh but you offer to go to NCL instead of EDI to reduce your delay, BA may well accept your offer. However BA are not obliged in that situation to pay for your onwards travel from NCL to EDI, since they may propose to you that you sit out the delay. In any event you are still free to negotiate that point with BA, should the situation arise.

21) Can I make my own arrangements and charge back BA?
In some situations you will have no choice. BA will often arrange duty of care aspects themselves, including hotel accommodation, but in the event of widespread disruption you may well be best to sort out your own accommodation. However you need to do your best to keep the cost down to a reasonable level. You can even negotiate with the hotel for a discounted rate because of this. You should also ring your insurers before making bookings.

22) My plane was not cancelled but delayed for 24 hours, am I entitled to compensation?
This area changed after an appeal case was brought to the European Courts, which ruled that an aircraft that was delayed more than 3 hours was to be treated the same as a cancellation. If you had a delayed flight of this sort from previous years you are now able to claim them from BA, since claims were “stayed” until the appeal was completed on 23 October 2012.

23) Am I covered for consequential losses?
Not from the Regulations, For example if your delayed flight means you miss a night of a pre-paid hotel, then that’s one for your insurance policy. Ditto car parking charges. However Article 12 does indicate that passengers can seek further compensation from the airline, and you may have other consumer protection legislation to consider.

24) Are Avios bookings covered?
Yes. Specifically in Article 3.3

25) Are 2-4-1 voucher bookings covered?
We don’t know for sure and they are not specifically mentioned in the Regulations. However the CAA has advised us that if the 2-4-1 voucher ticket - which cost taxes and surcharges - thereby are not free and therefore are covered by the Regulations to the extent of the money spent on them. Free tickets are not. We welcome any feedback from specific cases.

26) Can I ask for Avios instead of cash?
There are reliable reports of travellers asking BA to credit them with 50,000 Avios instead of €600. This is arguably a fair outcome for both sides.

27) Suggested process
If you think you have a claim, here is a suggested way forward. Note that if you look around the internet there are some companies that apparently handle claims for you, in return for a hefty proportion of the compensation. We are not making a recommendation one way or the other, however if you have legal protection insurance this will increase the options in this area.

a) Contact BA Customer Services, outline your complaint succinctly and focusing on the key points.
This can be done by telephone or webform: login via your BAEC account, at the bottom of the page go to Help and Contacts, then Contact Us / Making A Complaint / "Email us via our webform". With the webform you should be able to get a reference number within a few hours to track your case. However do not threaten legal action at this point since BA may batten down their hatches. It is important you specifically claim for EC/261 compensation.

The English language form is currently here (it may move over time):
http://www.britishairways.com/travel...club/_gf/en_gb

And BA's own guidance is in the penultimate paragraph here:
http://www.britishairways.com/en-gb/...n-compensation

Alternatively you can write to them at this address:

British Airways Customer Relations
EU Compensation Claims
PO Box 1126
Uxbridge
UB8 9XS
United Kingdom
Fax: +44 1787 88140

Note that the EC has issued some claim forms here:
http://ec.europa.eu/transport/themes...nt_form_en.pdf

Filling in this form (with a pen!) may be helpful in some circumstances, since the layout asks the right questions. But BA do not require it and in any case they rely on their own records to fulfil the data side. On the other hand it does provide an easy way of sending the form to the enforcement body (the CAA) if there is no reply after 6 weeks, but we are sceptical as to the benefit this gives, it certainly doesn't speed up or enforce payment.

If your flight begins BA82nn then your flight was operated by Sun Air in Denmark, so you need to address your claim to: Sun Air of Scandinavia A/S, Customer Relations, Cumulusvej 10, Billund, DK-7190, Denmark.

b) If you are still not happy?
Write again to Customer Services, referencing EC/261. Ideally be specific as to what you want and why. Again don't threaten legal action, but perhaps use a phrase like "I am unable to let the matter rest at this point".

c) Not getting anywhere?
Write to the Sudbury address as above, detailing precisely what compensation you are looking to receive, give BA 14 days to respond, “or legal remedies will be pursued”. On day 15, assuming no substantial reply, look to using MCOL (see below).

d) Is there anyone else I can contact?
The CAA is known as the National Enforcement Body for these Regulations. They have a team which examines complaints from airlines and can advise passengers with complaints. They do not try to enforce payment of compensation but can influence it. Their address is:
Regulatory Policy Group.
CAA House
45-59 Kingsway
London
WC2B 6TE
Telephone: 020 7453 6213
Full list of CAA contacts: Page not found | UK Civil Aviation Authority

28) How long should I wait before hearing a reply from BA?
There are reliable reports of flyers getting compensation within a week of making contact. However it may take upto 6 weeks to get a substantial reply from customer services. However if you don't get an auto-acknowledgement within 24 hours to your email address, the you should follow up immediately. Though one part of the regulations require delays and cancellation compensation to be paid within 7 days, the reality is often very different and the CAA have advised us that they don't regard the Regulations as having a time limit. However bear in mind that if this is going to end up in court there may be time limits involved (6 years in England and Wales), so you should not let matters drift.

29) My ticket is issued by Qantas but British Airways operated the delayed flight, who do I write to?
British Airways. See Post 6 for more information.

30) What about connecting flights on the same booking (same PNR)?
These are covered, and what matters is the final destination timing. So if flight A is slightly late but you miss flight B and arrive very late, the delay at your final destination is what counts. So you would be covered by the regulations in this scenario, and BA would be responsible for getting you to your final destination. However if flight B was cancelled / delayed AND is not operated by BA AND is entirely outside Europe, then you would not be covered by the Regulations for flight B as far as cancel. See Post 6, Q3.

31) What about connecting flights on different bookings (different PNRs)?
Not covered by these regulations, beyond any remedy due from disruption off the first PNR. Even if both bookings are oneworld or even BA, the regulations will not protect you. However there is evidence that BA will rebook you on the next flight, if you are at airside Flight Connections and you allowed plenty of time for the connection. Again you may want to look at insurance, however in many cases the cover in this situation can be restricted.

31) What if I turn up for check-in and my reservation hasn't been ticketed?
This is a grey area but it does occasionally happen. You think you have a confirmed reservation, maybe you have selected seats, you arrive at the airport in good time for the flight and discover that your ticket has not been properly issued. Phone calls are made, maybe you can't get hold of your travel agent or BAEC if an Avios reservation, and you miss your flight. BA have been known to dispute Denied Boarding claims in this situation since they argue that you did not hold a confirmed reservation. Indeed they have argued this when it was an internal error within BA that caused this to happen, but have paid up when challenged further. However it is a good idea to check you are fully ticketed before flying. One easy way is to do Online Check-in 24 hours before flying. If you have not been fully ticketed you will be unable to complete Online Check-in, and you should then call BA to find out why.

32) What if I have a connecting flight on one ticket/PNR, my first flight is 4 hours late, but I have a long connection time. Therefore I make my final destination on the original flight and arrive without a delay?
We don't know for sure. If there was a delay to the first flight then it seems unlikely, since the key issue is the final arrival time. If there's a denied boarding or cancellation, leading to re-routing, then the case is more arguable. See this post for more information. Also it remains unclear if there was a multi-city itinerary. You would have in this situation (and unusually) have more protection with separate PNRs as far as compensation is concerned (but not necessarily the other aspects of the regulation such as the right to care).

33) Flights to and from Israel and Turkey.
Israel has a very similar piece of legislation to EC 261, Israel Aviation Services Law. Though the framework is almost identical, all the details are different to the EU scheme. In broad terms it is more generous to the passenger than the EU scheme for cancellations and denied boarding but does not provide monetary compensation for delays. See the reference section for details. Turkey also has a limited version of EC261 which applies to departures from that country, but with a focus on the Right of Care provisions.

34) Legal process
Hopefully you don’t need to worry about this section. We feel this is beyond the scope of our advice, however in broad terms there is a small claims process in the UK, which can be done in person or online through the MoneyClaim service –see reference material below. The online version can be undertaken even if you are not a UK resident. However be aware that this is a non trivial process. It will take time and effort to pursue.

34a) Alternatives to MCOL / legal processes
BA now participates in an independently run adjudication process run by CEDR. It has advantages and disadvantages over MCOL, but one clear advantage is that it doesn't appear to be restricted to those with a UK address, and there isn't a public hearing involved. This thread has more details and examples of it being used.
http://www.flyertalk.com/forum/briti...cation-ba.html

35) Key jargon
CAA: Civil Aviation Authority - the National Enforcement Body (NEB) for EC261 in the United Kingdom. All EU members have to allocate a body in their country as their NEB, but each NEB has their own approach to the Regulations. In the case of the CAA it is arguably more of a guidance organisation rather than enforcement.

Wallentin-Hermann: A case from 2008 involving Alitalia which established that aircraft maintenance issues are not extraordinary circumstances.

Sturgeon: A case from 2009 involving Condor Air, which established that delays over 3 hours give rise to compensation if there are not extraordinary circumstances, and then started the groundwork that suggested delays cannot be used to hide flight cancellations.

36) Delays caused by technical issues
If your flight was delayed due to technical reasons, in almost all cases this is not "extraordinary circumstances" and can therefore be used as the basis for a successful claim. Follow the procedure in section 27 above, then if you had not had sufficient progress, follow the link below to the MoneyClaim online (MCOL) process. See also this thread 832 for a text book example.

37) Reference material

Links to:

Wiki article

Text of the regulations in PDF format

BA’s own section on EC261

BA's PDF section on the Israel Aviation Services Law

CEDR website (see 34a above)

Flightmole website - this has a lot of information on EC261.

Money Claim online website - this is a UK government service
This is an entirely online service, so in theory can be used by anyone anywhere against any company based in England and Wales. However the underlying documentation states that users can be "anywhere in the UK".

Making a court claim for money - a very basic guide from the UK government

There is also an App which you may be able to install on your mobile telephone or other Personal Electronic Device. For iPhones it is known as "Your Passenger Rights".
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Old Jan 1, 18, 5:59 am
  #2  
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Right to care (Article 9 of EC261):

Post 2
Right to care (Article 9 of EC261):

Q1: When does the “right to care” consist of?
A1: The right to care entails:
a) Food and drink: Meals and refreshments “in a reasonable proportion to the waiting time”;
b) Communications: 2 telephone calls, telex or fax messages, or e-mails. In practice, airlines often give passengers a telephone card;
c) Accommodation: hotel accommodation where the passenger is rerouted (or the flight delayed) the next day or later as well as transport to/from the hotel.

Q2: When is it due?
A2: In case of delays, entitled to food and drink and communications arises when the delay is at least two hours for short-haul, 3 hours for medium-haul and 4 hours for long-haul. The Regulation does not state exactly when the duty arises in cases of cancellation or denied boarding but it is not unreasonable to assume that the airline may refuse care assistance under the same thresholds.
For hotel accommodation, in principle, the duty arises whenever an additional overnight stay is required as the result of the denied boarding/cancellation or delay.

Q3: The airline did not offer assistance. What should I do?
A3: If you have asked the airline for assistance and they have denied it in breach of the Regulation, you should keep all receipts and seek reimbursement from the airline’s customer relations service afterwards. In principle, you should however give the airline the opportunity to arrange assistance before making your own arrangements. In practice, BA is reasonably flexible on reimbursing reasonable expenses even if you have not contacted them first, and in many cases this is the only practical way to proceed, particularly if a large aircraft has suddenly "gone technical" at a small out-station late at night.

Q4: The airline has arranged overnight accommodation at a hotel I do not like and would prefer to book another hotel which is better or more convenient for me. Can I do this and get reimbursement from BA?
A4: In principle, no: you have to take what you have been given. You may well think that a Travelodge does not accord well with your First class travel arrangements. However, this is not an issue for EC261. That said, BA does tend to be reasonable here too - and they certainly have agreed to do this for status customers - but it would be wise to confirm with the BA representative that this is OK as this is purely a goodwill/commercial policy issue rather than a legal entitlement.

Q5: Does this also apply in case of cancellation that was notified to me more than 14 days in advance?
A5: While EC261 excludes compensation for cancellations that are notified more than 14 days in advance, there is nothing in its wording to suggest that the right to care does not apply in those situations. That said, a ‘common sense’ approach probably needs to be adopted in determining what the right to care covers here. It is far from clear, in particular, that a passenger could insist on making two phone calls at the expense of the airline. Whether the passenger can charge the airline for meals and refreshments is also debatable (except perhaps where the reschedule results in a long wait between flights at the airport). On the other hand, there is a stronger argument to be made for the airline to be responsible for providing accommodation when the new itinerary requires an additional overnight stay.
There is, in any event, no authoritative interpretation of the Regulation by a superior court of law to rely on here.

Q6: I have decided to abandon my trip or make my own alternative travel arrangements and get my ticket refunded. Can I rely on the right to care?
A6: In principle, no: once you have chosen to get a refund rather than get re-routed, you are ‘on your own’ regarding care arrangements. You may or may not have rights from other sources (such as the Montréal Convention) but EC261 would not apply here.
On the other hand, if the flight on which you are rerouted is further delayed and you decide at that point to cancel and get a refund, you would be entitled to care up to that point, but would have to bear your own costs after the point at which you cancel.
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Old Jan 1, 18, 6:00 am
  #3  
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Right to compensation (Article 7 of EC261):

Post 3

Right to compensation (Article 7 of EC261):

Q1: When am I entitled to compensation?
A1: You are entitled to compensation if you are involuntarily denied boarding or if your flight is delayed more than 3 hours. Delays under 3 hours are not eligible for compensation. In case of cancellation, you are also entitled to compensation in the following circumstances:
a) You are given less than 7 days’ notice of the cancellation and you are offered rerouting which leaves more than an hour earlier than originally scheduled or arrives at your final destination more than 2 hours later than originally scheduled.
b) You are given between two weeks and 7 days’ notice of the cancellation and you are offered rerouting which leaves more than 2 hours earlier than originally scheduled or arrives at your final destination more than 4 hours later than originally scheduled.
Q2: How much compensation am I owed?
A2: Compensation varies depending on the distance of the flight, the standard amount is shown below. In addition, if by re-routing you the delayed arrival at final destination (compared to original schedule) is below a certain threshold, the airline can reduced the amounts by half (Reduced Amount), as per the table below. NOTE: If it was a simple delay, and no other complication such as rerouting, then a delay below 3 hours, even for short haul, gets NO COMPENSATION! If there is a cancellation or rerouting, then compensation MAY be payable for delays below 3 hours.



Q3: In the case of a multi-leg itinerary, how is the distance calculated to determine the length of the ‘flight’?
A3: The regulation states that the relevant distance is calculated on the basis of the ‘last destination at which the denial of boarding or cancellation will delay the passenger’s arrival after the scheduled time’. In other words, the relevant distance is calculated up to the point where the passenger ‘catches up’ with the original itinerary, if at all.

Q4: In the case of a multi-leg itinerary, how is the delay calculated to determine whether the delay is greater than three hours and gives rise to compensation?
A4: According to the European Court of Justice in the Sturgeon case, it is the time of arrival at final destination taht matters. Thus, even if the original flight is delayed less than three hours, if that initial delay results in a misconnection with the consequence that the passenger arrives at final destination more than three hours later than originally planned, the passenger is in principle entitled to compensation.

Q5: Are there circumstances where the airline can refuse compensation?
A5: Yes: these are referred to in the Regulation as “extraordinary circumstances”. There is no definitive list of extraordinary circumstances. Broadly speaking, extraordinary circumstances are events that are outside the airline’s control and the concept also implies a departure from what can be expected in the normal course of operation.
As a rough rule of thumb, events such as weather delays, ATC delays, cancellations due to strikes or to political instability (war, terrorism threats, etc...),are usually regarded as constituting extraordinary circumstances. Even then, however, each case must be looked at on its merits to ascertain the “extraordinary” character of the event.

Q6: do delays and cancellations due to mechanical problems with the aircraft constitute “extraordinary circumstances”?
A6: the same principle applies for technical problems as for other extraordinary circumstances: ‘ordinary’ technical problems that occur in the normal course of business are not regarded as extraordinary circumstances. On the other hand, a delay that would result, for instance, of damage to the aircraft due to sabotage or terrorism, or a request by Boeing or Airbus to review certain mechanisms on all aircrafts of a particular model following the discovery of a hidden defect would constitute an ‘extraordinary circumstance”.
In practice, therefore, most mechanical problems are unlikely to constitute extraordinary circumstances.

Q7: I volunteered to be off-loaded in an overbooking situation and I was given less than the amounts indicated here. Can I claim for more now?
A7: In principle, no: the amounts of compensation specified in the Regulation apply to involuntary denials of boarding. If you volunteer to be offloaded, you are not involuntarily denied boarding. What you are entitled to is what you agreed with the agent when volunteering to be off-loaded. That said, if the airline did not inyou of your rights under R261/2004 and, as a consequence, you accepted less, you could claim the difference between what you have been offered and what you would have been entitled to under the Regulation.
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Old Jan 1, 18, 6:01 am
  #4  
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Right to reimbursement or re-routing (Article 8 of EC261):

Post 4

Right to reimbursement or re-routing (Article 8 of EC261):

Q1: I no longer wish to travel. Can I get a refund of my ticket?
A1: You can get a refund of your ticket in case of denied boarding and in case of cancellation of your flight.
In case of delay to your flight, the Regulation states that you are entitled to a refund if the delay exceeds five hours. There is an argument that can be made that an entitlement to a refund exists for shorter delays but that is speculative. In any event, BA will usually accept to refund your ticket if the delay is non-trivial and you no longer wish to travel, however the formal time period is 5 hours.

Q2: I have already started to travel. Am I entitled to a refund of the whole ticket?
A2: If you are on the outbound part of your journey and the journey would no longer serve any purpose in the light of the delay in the journey, you are entitled to a refund of the whole ticket as well as a (free) return flight to your point of origin. Thus, if you are flying from Hamburg to Chicago via Heathrow and the LHR-ORD flight is cancelled while you are in transit in London and the rerouting options offered would result in your arriving too late in Chicago and negate the purpose of your journey, BA would have to fly you back to Hamburg and reimburse the whole ticket. BA specifically asks for proof that your trip no longer serves its original purpose.
If, on the other hand, you have stopped over in London for a few days and intend to resume your onward journey to Chicago when the flight is cancelled, you would only be entitled to reimbursement of the part of the journey that you have not flown. The Regulation suggests that BA would still have to fly you back to Hamburg if you so wish. If you do, it is likely that BA would only have to refund the LHR-ORD-LHR part of the journey rather than LHR-ORD-LHR-HAM.

Q3: I do not want a refund. I just want to get to my destination. Must I be offered re-routing?
A3: Yes: the airline has an obligation to offer you re-routing and it is up to you to choose between refund or re-routing.

Q4: I do not like the re-routing option I have been offered. Can I ask for alternative flights?
A4: You can always ask for alternative flights if what you have been offered is unsuitable for one reason or another. If what you would prefer is to take another BA flight on the same day, or the day before or after, BA will normally be accommodating provided there is availability. Ultimately, though, you do not have a right to insist on any flight of your choice. You are expected to accept the flights offered to you as long as they comply with the requirements of the Regulation: as long as the airline has offered you re-routing ‘under comparable transport conditions’ and ‘at the earliest opportunity’, it has in principle fulfilled its duty under the Regulation. If this does not satisfy you, you always have the opportunity to ask for a refund instead of a re-routing or a re-routing at a later date (see Q6 below).

Q5: I have been offered re-routing departing tomorrow. I noticed, however, that there is a flight on another airline that can get me back home much earlier. Can I insist that BA puts me on that other airline’s flight?
A5: The obligation on the airline is to re-route you under comparable transport conditions to your final destination “at the earliest opportunity”. Thus, if there are two BA flights to your destination and seats are available on both, you could insist on being put on the earlier flight. However, the Regulation is silent as to whether the obligation extends to putting you on any flight, including other airlines’ flights.
Most airlines take the view that they are only obliged to re-route you on their own flights and that, if they reroute you on another airline, it is a commercial gesture rather than a legal obligation. There does not appear to be any authoritative court judgment on this issue so this is a grey area.
In practical terms, the more expensive your ticket and the longer the alternative wait, the more likely it is that BA will agree to put you on an alternative carrier.

Q6: The alternative flights I have been offered are not very attractive. I would rather give up on this journey and fly again in a month’s time. Can I do that?
A6: Yes, the Regulation provides for a third option, beyond refund and immediate rerouting: you can ask to be re-routed to your final destination at a later date of your convenience. This, however, is subject to there being availability in the same booking class as your original ticket. The Regulation does not specify a deadline by which the flight has to be taken. It is reasonable to assume that you can book any flight currently open to reservation (i.e. normally 330 days ahead) subject to availability in the relevant booking class.

Q7: I have noticed that there is a BA flight leaving earlier than the one on which I have been offered re-routing. However, I have been told that I cannot get on that flight because my ticket is a frequent flyer ticket and there is no award availability on that flight. Can I be denied re-routing on the earlier flight?
A7: If you are asking for re-routing ‘at the earliest opportunity’, then the answer is no: as long as there is a seat in the same cabin as your original ticket, you should be offered it, regardless of booking class. If, on the other hand, you are asking to be re-routed at a later date of your own convenience, then the airline can indeed refuse to rebook you unless there is availability in the appropriate booking class.

Q8: There is an earlier flight available but it only has seats in Club Europe whereas my ticket is in Euro-traveller. Can I insist to be re-routed on that earlier flight?
A8: This is a grey area but the answer to the question for the time being is likely to be: “on balance, perhaps not”. The Regulation does require the passenger to be re-routed “at the earliest opportunity”. On the other hand, it also states that the passenger must be re-routed ‘under comparable transport conditions’, which probably means, among other things, in the same class of travel. Whether the “comparable transport conditions” requirement can be interpreted to the detriment (rather than the advantage) of the passenger is debatable. However, we do not have authoritative court judgments on this for now and there is at least one small claims court judgment in the UK finding in favour of the airline on this issue.

Q9: I understand that I have to be offered rerouting “under comparable transport conditions”. What does this actually mean?
A9: There is no definition of ‘comparable transport conditions’ in the Regulation nor has there been to date any authoritative judicial pronouncement on the matter. It is generally assumed to imply the same class of travel. It could also conceivably cover comparability of number of flights/stopovers. In that sense, an alternative flight with connections may perhaps not necessarily be regarded as constituting “comparable transport conditions” to a direct, non-stop flight.
Some FTers take the view that comparable transport conditions implies looking in more details at the characteristics of the product offered beyond the mere classification as “business class” or “economy class”. They would argue, for instance, that a business class product featuring a lie-flat seat is not comparable to a business class product with a cradle seat or with a ‘middle-seat free’ intra-European business class-style product. From that perspective, they would argue that there are no comparable transport conditions when a short-haul B767 is substituted to a long-haul B767, since the former involve a CE type product whereas the latter a CW-type product. It is, however, doubtful, albeit not entirely impossible, that the intention behind the Regulation was for courts to engage in substantive product comparisons between carriers. To that extent, the conventional view is that such differences are probably not what is meant by the use of the phrase “comparable transport conditions” in the legislation.

Q10: Will BA reroute me to a different destination?
A10: BA may reroute you to a different airport serving the same city (eg: LCY instead of LHR) or the same region (eg: GLA instead of EDI or MCO instead of TPA) but they are unlikely to routinely reroute you to an entirely different region or country unless there are special circumstances in your case.

Q11: I have been offered a flight landing at LGW instead of LHR (or GLA instead of EDI). Do I have to accept it and who pays for the transport from LGW to LHR (or GLA to EDI)?
A11: The Regulation contemplates that a passenger may be carried to an alternative airport serving the same town, city or region but is silent on whether the passenger has to accept such alternative. In practice, unless the original airport is no longer served by BA (eg: a service is switched from LHR to LGW), BA will normally offer a reroute to the originai airport if the passenger wishes. If a passenger is offered re-routing to an alternate airport and accepts it, the airline will have to provide onward transportation to the original destination airport or to another close-by destination agreed with the passenger at no additional cost to the latter. If the airline does not make transport arrangements, the passenger should be able to claim reimbursement of the cost of the bus/train/taxi as appropriate.
The situation is greyer when the passenger takes the initiative of suggesting a change of destination (eg: offers to take a flight to GLA or NCL rather than EDI and make his/her own way from GLA or NCL to EDI). It is likely that, in that situation, the airline could legitimately ask the passenger to bear his or her own onward transportation costs from the airport (NCL in this example) as long as the airline did offer re-routing to the original airport.

Q12: Does this also apply when I have been offered a flight departing from an alternative airport or where one of my connections is changed and now involves a change of airport?
A12: The Regulation only explicitly contemplates the situation where the arrival airport is an alternative airport. It would be in keeping with the spirit of the Regulation to extend that situation to departure and transit airports and there is a fairly high chance that this is how the European Court of Justice would interpret the Regulation. There is, however, no authoritative judicial precedent to rely on to date.

Q13: I have an onward flight on a separate reservation. Will BA change my second reservation too if the first flight is delayed or cancelled?
A13: In principle, from a formal-legal perspective, BA has no obligation to change your reservation under a separate transportation contract on a different ticket because of delays on the first one. If, therefore, you miss your onward flight on a separate reservation, it is your problem and you may have to buy a new ticket. You might have a recourse under the Montreal Convention if the delay to the original flight is attributable to BA and/or BA did not do all it could to avoid the delay or damage to you resulting from the delay. This, however, is beyond the scope of this FAQ.
In practice, if your onward flight is on BA itself, BA may try to put you on a later flight. This, however, is not something that you can rely on. If you want to be protected for misconnections, you should buy a through-ticket rather than buying separate tickets.

On anything other than a BA to BA connection, or one involving a oneworld airline, BA is unlikely to help you in case of mis-connections on separate tickets.
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Old Jan 1, 18, 6:01 am
  #5  
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Downgrading (Article 10 of EC261):

Post 5

Downgrading (Article 10 of EC261):

Q1: Am I entitled to reimbursement if I have been downgraded?
A1: Yes, you are entitled to a fraction of the price paid for the ticket.


Q2: Is this calculated by the reference to the price of the whole ticket or only the downgraded segment?
A3: The Regulation is unclear on this but the Court of Justice of the European Union (CJEU) has taken the view that the amount has to be pro-rated to the length of the segment in the overall itinerary. This is not an unreasonable position to take even though some will disagree that this is the correct interpretation of the Regulation. If that is so, the amount due could be very small if the downgrade is a short, connecting segment of a long-haul itinerary or of a round-the-world ticket.

See this post for full details:
http://www.flyertalk.com/forum/briti...l#post26864509

Q3: I have been downgraded on the LHR-CDG segment of a LAX-LHR-CDG itinerary. Am I entitled to 30%, 50% or 75% of the price of the ticket?
A2: 30%

Q4: What about tickets paid with Avios or some other frequent flyer currency?
A4: In principle, the Regulation applies to award tickets and the same ratio should, therefore, in principle apply. Thus, if the passenger paid 100 000 avios for a long-haul ticket, the passenger would be entitled to 75 000 avios back if downgraded (ignoring issues of pro-ration raised in Q2).
Difficulties can arise when the flight was paid by miles from an airline’s frequent flyer programme other than the operating airline's (eg: using AA miles for a BA booking). Theoretically, airlines within alliances should be able to notionally purchase frequent flyer miles from each other and, therefore, BA should theoretically be able to effect a reimbursement in AA miles if required. Another possibility, apparently practised by some airlines, is to calculate a cash reimbursement on the published fare rather than reimburse in frequent flyer miles. We do not have enough information at present to determine how these issues are handled by BA.

Q5: when I booked my ticket in J class, the flight was due to be operated by a long-haul 767. It is now due to be operated by a short-haul 767. Am I entitled to downgrade compensation?
A5: The conventional wisdom on this one is that there is no downgrade within the meaning of EC261, as long as the passenger remains accommodated in the business cabin on a business ticket or in economy on an economy ticket, even if the passenger may regard the quality of one business cabin as significantly below another. In that perspective, a switch from CW to CE would not be a downgrade, anymore than a switch from the business cabin of a top-class carrier to that of a mediocre one would be a downgrade within the meaning of the Regulation.
Some FTers, however, take a different view and consider that substantial quality differences between products are enough to regard a change as a downgrade within the meaning of the Regulation. There are no authoritative judicial pronouncements on this issue. (see also Q9 on “comparable transport conditions” in the FAQ on the right to reimbursement or re-routing)

Q6: Am I entitled to twice the compensation in case of a two-class downgrade?
A6: The Regulation does not seem to have contemplated what would happen in the case of a downgrade of more than one class. While double compensation is a defensible interpretation of the Regulation, it could equally be argued that a passenger is entitled to the same compensation in case of a two-class downgrade as in the case of a one-class downgrade.

Q7: I have been given immediate compensation by BA at the airport which is much below the refund level mentioned above. Am I entitled to more?
A7: The immediate compensation handed by BA at the airport is meant to be additional rather than replace the refund of the ticket provided for in the Regulation. The refund will be made to the person who originally paid for the ticket using the same channel/method as that used for the original payment rather than to the passenger as such.
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Old Jan 1, 18, 6:02 am
  #6  
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EC261 and more complex ticketing

Post 6

EC261 and more complex ticketing

Q1: My flight from LHR to HEL has been cancelled. I bought it on aa.com; it has a BA flight number and it is operated by AY. Who is responsible for re-routing me?
A1: If you bought your ticket on aa.com, AA will be the ticketing carrier. Your flight is under BA code. Therefore BA is the marketing carrier. Finally, your flight is operated by AY: AY is the operating carrier. EC261 places the obligations of care, refund/ rerouting and compensation on the operating carrier. In this example, it would therefore be AY who would have the responsibility under the Regulation to reroute the passenger.
This is indeed what happens when dealing with live problems on the spot at the airport. If, however, the problem arises in advance (say: your flight next week is cancelled), things get a little more complicated. Although the responsibility under the Regulation remains on the operating carrier, your ticket will need to be re-issued and this is normally done by the ticketing carrier. If you try to call the operating carrier, they will in all likelihood refer you back to the ticketing carrier (or the travel agent you booked your ticket with if you have used a travel agent). If you turn to the ticketing carrier, they are likely to offer you very limited rerouting options. In particular, if you are on an award ticket, they may only offer you rerouting on flights which still have award seats. What should happen is that the ticketing carrier should liaise with the operating carrier to get the operating carrier to solve the problem and then the ticketing carrier can reissue the ticket. It may, however, require perseverance to obtain this.

Q2: I am flying from DEL to IAH via LHR on BA. Am I covered by the Regulation if either of my flight is delayed or cancelled?
A2: BA is an EU carrier. If the operating carrier is an EU carrier, the Regulation states that it applies to passengers departing from or landing in the EU. One can reads this in two possible ways: a): the passenger origin or final destination for the overall journey must be in the EU or b): the origin or destination of the delayed or cancelled flight segment must be in the EU.
There does not appear to be any judicial precedent to clarify the matter for good. However, it seems probable that the Regulation should apply when the flight segment starts or finishes in the EU. Thus, in this example of a flight from DEL to IAH via LHR on BA, the Regulation would probably apply.

Q3: I am flying on BA to SYD, connecting to a domestic QF service to MEL. Am I covered by the Regulation if the QF flight from SYD to MEL is delayed or cancelled?
A3: The Regulation only applies to flights which start or finish in the EU. For the reasons mentioned in A16b, it probably means individual flight segments rather than overall itinerary and, therefore, the Regulation probably does not apply here. The same would also probably be true in the other direction, viz. delay to a QF flight from MEL to SYD connecting to a BA flight to LHR.

Q4: My BA flight from SIN to SYD,has been delayed or cancelled. Am I covered by the Regulation?
A4: This is a tricky one to which there is no definitive answer to date. If you are flying from LHR to SYD via SIN on BA on a single flight number, it is strongly arguable that you are covered by the Regulation, as you are departing from the EU on an EU carrier.
If, on the other hand, you are just flying from SIN to SYD, you are in all likelihood not covered by the Regulation.
If you are flying from the EU to SYD, connecting to BA in SIN from a different flight, the situation is especially unclear. On balance, the odds are that the Regulation may not apply here.

Q5: I am flying from JFK to LHR on a flight with a BA flight number operated by AA. Am I covered by the Regulation?
A5: Most probably not. When the carrier is not an EU carrier, the Regulation only applies to flights from the EU, not to flights to the EU. Thus, an AA flight to Europe would not come within the scope of the Regulation. The fact that the flight was booked under BA code should not make any difference.

Q6: I am flying to Gibraltar, is that covered by the Regulation
No. Due to the ongoing sovereignty dispute between the governments of the UK, Gibraltar and Spain, which sometimes impacts flights, it was left out of the regulations and that remains the case. There is a view that Gibraltar is now in scope, but there hasn't been a ruling by a senior court to be certain about this. See also the posts from David-A in post 12 and post 14 below.

Last edited by corporate-wage-slave; Jan 1, 18 at 11:36 am
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Old Jan 1, 18, 6:03 am
  #7  
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Letter / Notice Before Action / MCOL Advice and pointers

Letter / Notice Before Action

Here are some comments to help with any final letter you may send to BA prior to using MCOL. This can be regarded as best practice for this sort of claim, though it isn't actually mandatory. However if you do this it may assist you later. It is taken from the Practice Direction - pre-action conduct.
2. Claimant’s letter before claim
2.1 The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –
(1) the claimant’s full name and address;
(2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);
(3) a clear summary of the facts on which the claim is based;
(4) what the claimant wants from the defendant; and
(5) if financial loss is claimed, an explanation of how the amount has been calculated.
It should also provided a date by which a full answer is expected. This isn't directly specified, but the implication of the rest of the guidance is that would be at least 2 weeks. For one person's experience at getting BA to pay (pre Huzar) see this post from the previous thread..

2014 Developments

How long do I have to submit my claim?
This is now settled in law, as a result of Dawson v Thomson Airways Ltd [2014]. Proceedings must commence within 6 years of the date of the incident being claimed. The Supreme Court dismissed Thomson's application to appeal on 31 October 2014.

What about the Huzar Case relating to disruptions due to technical reasons?
The UK Supreme Court has ruled on 31 October 2014 that it will not consider an appeal against a previous Appeal Court ruling. This means that the law relating to EC261 and delays caused by technical issues is clear: almost all such cases will not be considered "extraordinary circumstances" and therefore a long delay caused by a plane going "technical" would be grounds for claiming compensation. There could be some exceptions to this, the sort of examples mentioned in legal proceedings include where the aircraft manufacturer issued an urgent safety alert and thereby grounded aircraft. It can be assumed that this would be a very rare occurence, most "technical" cases would tend to be covered by the Regulations.

BA declined to pay me for a claim based on technical problems, can I go back to them now?
Almost certainly yes. Some technical problems can still be "extraordinary circumstances", for example if Boeing announced an emergency recall, but this would be very much the exception. The 6 year limit would probably not apply to older cases. It appears BA is paying both old and current claims in this area without hindrance.

=====

Some pointers from other Flyertalker's experiences of using MCOL

While respecting the privacy of the individuals' concerned, there are some lessons learned that perhaps can be shared.
  1. If going down the MCOL route it is important to pay attention to details and deadlines. While it isn't particularly complicated or onerous, sending an MCOL through without proper preparation is doomed to failure.
  2. Don't rely on BA not turning up at court - they often do. Moreover if you don't turn up at court, or fail to send a solicitor / person to represent your case, BA may well be successful in asking for a contribution to their costs. £240 was extracted in one case recently - from a BA gold cardholder at that!
  3. There is some validity in selecting the Arbitration clickbox as part of the process. There are several reports of BA making a reasonably generous offer (i.e. not all of what was asked) in the telephone call that is involved in this case. If you access this offer, the arbitrator will submit that to the court for ratification. Often BA's offer will come in the form of e-vouchers: it's a electronic voucher beginning 125 which can be used to pay for one or many flights: during the BA.com booking process you add the voucher as a means of payment. You can also use e-vouchers to pay for travel for friends or relatives. BA may invite you to look at the terms and conditions of e-vouchers before that telephone call, so you can guess it's going to be offered! You don't have to select the Arbitration option, it doesn't count against you and you are not forced to accept the outcome of this stage. I think the only reason why you would NOT go through this stage is if you wanted your day in court and were not particularly interested in a negotiated settlement. Alternatively if you have hearing or language issues with telephone conversations perhaps.
  4. Only use MCOL for one individual - don't add (e.g.) your spouse directly into the submission since BA will highlight this in their defence, which thereby risks the judge throwing the case out completely. There is a paper form you can use for multiple applicants. However probably the better way to handle this is to make MCOL for one individual, but insert a paragraph somewhere to make it clear that your spouse has an identical claim and it will be pursued after the first MCOL submission. BA are unlikely to defend the same case twice and it mitigates your losses if you actually don't have a case.
  5. Consider doing a skeleton: a one or two page summary or roadmap of your claim, with numbered bullet points that would allow a judge to walk through the case and refer to the documents / proof in short paragraphs. The first few paragraphs would be a bit about you and the briefest summary of the events behind your case. The last paragraph is a conclusion and a mention to the total sum applied for. In between you should put about a dozen paragraphs explaining what you are claiming for and the legal basis. This is certainly not expected at small claims level, a skeleton is used in more complex cases and is drawn up by those with legal training, but it really does make life easier for the judge and for you too: it allow you to focus your argument succintly on the points that matter. Send it to the court and the airline about a week before any scheduled hearing/arbitration. This guide is intended for legal students and goes into too much detail, but you may find it interesting, just read pages 6 to 9 inclusive:
    https://www.biicl.org/files/2223_ske...ents_guide.pdf
  6. If your claim is against BACF (ie involved flights out LCY or Stansted), SUN, OpenSkies, Comair - be careful to make the claim against the correct company, BA will highlight errors in this area (even though in the case of BACF the same legal team is involved!) and it may invalidate your claim.
  7. I know it's easy to say, but don't take this too personally. There is a standard legal framework for pursuing complaints, it's used thousands of times every working day, and both BA and the consumer have access to this framework. They are not "getting at you", they are simply using a well trodden path for resolving disputes. And you won't get banned from using BA if you take them to court, BA is a large corporation transporting over 40 million people every year.
  8. Be realistic about settling out of court. You are free to make your own or counter offer to the airline too. A court hearing is likely to be a poor use of your time, and so it is worth reflecting on any approaches which can avoid this.
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Old Jan 1, 18, 6:04 am
  #8  
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This post is for any mid year CJEU (etc) rulings in the EC261 space.

1) There has been a CJEU ruling about wet leases on 4 July 2018. The case is "Wolfgang Wirth and Others v Thomson Airways Ltd" (Curia reference C-532/17). In essence if BA offers a flight under a wet lease (recent examples being Eastern, Titan, Qatar), it is still BA responsible if there are delays, downgrades etc.

2) Helga Krüsemann and Others v TUIfly GmbH - a CJEU ruling on 17 April 2018 stating that employee strikes within an airline are not extraordinary circumstances, even if they are "wildcat" (without much prior notification). This suggests that future reference to strikes being not eligible for delay/cancellation compensation will only be valid if a third party goes on strike, such as air traffic controllers.

3) During 2018 it has become apparent that BA are losing cases sent to CEDR in respect of the Trent engine problem on 787 aircraft. As a result of a long running update programme to these engines, BA has been short on aircraft and has cancelled many services, sometimes at short notice. BA has so far declined all EC261 claims for compensation for this, however CEDR has ruled that compensation is owed. The core logic being that while the cause of these cancellations are extraordinary circumstances, BA has not (yet) proved that it has taken all reasonable measures to minimise impacts on passengers.

Last edited by corporate-wage-slave; Jan 1, 19 at 2:30 am
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Old Jan 1, 18, 6:29 am
  #9  
 
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Has anyone had any luck challenging the 787 cancellations yet? I really do struggle to see this an extraordinary circumstance. BA have rejected my claim on the basis below;

In common with several other airlines around the world, we're carrying out additional inspections on our Rolls-Royce Trent 1000 engines, which are fitted to our Boeing 787 aircraft. This is in accordance with the instructions of the engine manufacturer in its long term maintenance and service programme, which all airlines must comply with.

The safety of our customers and crew is always our top priority and we would never operate an aircraft unless it was safe to do so.

As these flights have been cancelled due to operational reasons that are outside of our control, EU compensation is not payable.

The Boss of Boeing had even been quoted to say, its just a part is wearing quicker than originally anticipated and forms part of the long term maintenance of the engine. Having not grounded the fleet, I would be interested to hear people's views. Feel free to move the 787-9 thread if you think it needs to be. Cheers and Happy New Year. B
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Old Jan 1, 18, 6:57 am
  #10  
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Originally Posted by baileysserpant View Post
The Boss of Boeing had even been quoted to say, its just a part is wearing quicker than originally anticipated and forms part of the long term maintenance of the engine. Having not grounded the fleet, I would be interested to hear people's views. Feel free to move the 787-9 thread if you think it needs to be. Cheers and Happy New Year. B
This is going to be one of those cases where there are two legitimate points of view. You have seen the BA response, and yes that does tie into some legal discussions on the road to the Huzar case, where judges used the example of a manufacturer's recall as an example of extraordinary circumstances in the mechanical space. On the other hand there will be an argument, particularly for departures from BA's main hub, that there are more things that the airline could do to avoid cancellations. I can't see BA changing its stance on this, it has some legal credibility to it, and my strong suspicion is that CEDR will back them up too, but in a Small Claims court setting, with a carefully constructed case, it may be possible that a judge may come down in your favour. And it is only a judge who can give a definitive ruling on this. It will be quite a lot of work to get there, so it will depend on your appetite for going the MCOL route.
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Old Jan 1, 18, 9:37 am
  #11  
 
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Originally Posted by baileysserpant View Post
Has anyone had any luck challenging the 787 cancellations yet? I really do struggle to see this an extraordinary circumstance. BA have rejected my claim on the basis below;

In common with several other airlines around the world, we're carrying out additional inspections on our Rolls-Royce Trent 1000 engines, which are fitted to our Boeing 787 aircraft. This is in accordance with the instructions of the engine manufacturer in its long term maintenance and service programme, which all airlines must comply with.

The safety of our customers and crew is always our top priority and we would never operate an aircraft unless it was safe to do so.

As these flights have been cancelled due to operational reasons that are outside of our control, EU compensation is not payable.

The Boss of Boeing had even been quoted to say, its just a part is wearing quicker than originally anticipated and forms part of the long term maintenance of the engine. Having not grounded the fleet, I would be interested to hear people's views. Feel free to move the 787-9 thread if you think it needs to be. Cheers and Happy New Year. B
Hi baileysserpant,

Lets analyse what BA have said to you.

"In common with several other airlines around the world, we're carrying out additional inspections on our Rolls-Royce Trent 1000 engines, which are fitted to our Boeing 787 aircraft. This is in accordance with the instructions of the engine manufacturer in its long term maintenance and service programme, which all airlines must comply with."

It was made clear in Huzar, that following the manufacturers recommended maintenance procedures did not exempt the airline from having to paying compensation or constitute as an 'Extraordinary Circumstance'. Therefore this is not a valid excuse for BA.

"The safety of our customers and crew is always our top priority and we would never operate an aircraft unless it was safe to do so."

As would be expected from any airline. Again, not an excuse.

"As these flights have been cancelled due to operational reasons that are outside of our control, EU compensation is not payable."

BA are deliberately mis interpreting the regulations here (I'm being kind here). "Operational reasons" is not a valid reason (in the EC261 regulations) for any airline to be exempted from paying compensation. By asserting that EU compensation is not payable for the reason of operational reasons is not true, never has been and never will be. Operational reasons means that BA have decided to unilaterally take a certain course of action for reasons which suite them. It's just not valid excuse to withhold compensation.

The only possible exemption open to BA would be to claim that the reason for the problem was an 'extraordinary circumstance' but they have not even made that claim.

This is what the CAA say about EC's...

Examples of extraordinary circumstances

The main categories of events that are likely to be an extraordinary circumstance include:
  • Acts of terrorism or sabotage
  • Political or civil unrest
  • Security risks
  • Strikes (unrelated to the airline such as, airport staff, ground handlers, or air traffic control)
  • Weather conditions incompatible with the safe operation of the flight
  • Hidden manufacturing defects (a manufacturer recall that grounds a fleet of aircraft)

Notice what is missing in that list! Yes, no mention of Operational Reasons.

I don't know who BA think they are kidding with that excuse, but it has no place in the regulations or law. Make sure you don't fall for it.

However, imo, this is a case that would benefit from fast tracking to Liverpool or Leeds County Courts, where the experienced flight delay judges sit, as it is of some importance to both BA and many hundreds, if not thousands of passengers.
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Old Jan 1, 18, 9:55 am
  #12  
 
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Originally Posted by corporate-wage-slave View Post
Post 6

EC261 and more complex ticketing

Q6: I am flying to Gibraltar, is that covered by the Regulation
No. Due to the ongoing sovereignty dispute between the governments of the UK, Gibraltar and Spain, which sometimes impacts flights, it was left out of the regulations and that remains the case. There is a view that Gibraltar is now in scope, but there hasn't been a ruling by a senior court to be certain about this.
Hang on, I think that needs correction - as it is very misleading (in fact I'd say it is outright wrong) as it stands, especially since this post sits within the British Airways section of FT.
The question as always is where are you flying FROM, and/or who are you flying WITH.

If someone is flying *to* Gibraltar - as phrased in your example question - from the UK (e.g. British Airways from LHR, or easyjet from Gatwick, Manchester, Bristol etc). You ARE unquestionably covered (since you are departing from an airport within the scope of the regulation - your destinaiton does not matter).
Indeed, I've been paid out on this many times by BA.
Any ad-hoc charters from other origin airports that are inscope are also covered, irrespective of the operating airline.

Now, if someone is flying *from* Gibraltar airport, and they are flying with an airline that is covered based upon its registration, and to a destination that is covered (e.g. BA or easyJet to the UK) then again you are also unquestionably covered.
And again, I've been paid out by BA MANY MANY times on this.

So, the short version is BA flights to GIB are covered in BOTH directions (same with easyJet). And there is no debate on this point.

Looking at the current airlines operating to/from GIB, there is actually only one situation that is affected:
BA and easyjet (both from and to the UK) - covered both ways due to departure from airport in scope on outbound, and the flight operated by an airline in scope to a destination in scope on the return.
Royal Air Maroc - as this is not an EU airline, departures from Morocco to GIB would not be covered anyway, the only scheduled service potentially out of scope is RAM departing GIB to Morocco - due to Gibraltar airport being excluded due to Spanish pressure.

As such, I think it should be changed to:

Q6: I am flying to Gibraltar, is that covered by the Regulation
A: While Gibraltar airport is excluded (due to Spanish political pressure) your flight TO Gibraltar is covered providing it departs from airport that is covered (e.g. ALL flights departing from the UK, etc), you are also covered for flights FROM Gibraltar to the UK (or any other airports that are covered by the regulation) providing they are operated by an EU regulated airline - e.g. British Airways, easyJet, etc. So all British Airways flights are covered, and easyjet, etc - in both directions.
(Due to the exclusion of Gibraltar airport the flights NOT covered are those departing from GIB - which are operated by a non-EU regulated airline or going to an airport that is not covered by the regulation. In practical terms this is the Royal Air Maroc flights from Gibraltar to Tangier/Casablanca. These would have been covered if Gibraltar airport was not-excluded, in the same way that flights from the UK to Morocco - operated by RAM - are covered by the regulation, because they depart from an airport that is covered despite not being operated by an EU airline.
etc.
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Old Jan 1, 18, 10:24 am
  #13  
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Originally Posted by David-A View Post
Hang on, I think that needs correction - as it is very misleading (in fact I'd say it is outright wrong) as it stands, especially since this post sits within the British Airways section of FT.
The question as always is where are you flying FROM, and/or who are you flying WITH.
Not quite, see Article 1, clause 3:

Originally Posted by EC261
3. Application of this Regulation to Gibraltar airport shall be suspended until the arrangements in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 enter into operation. The Governments of Spain and the United Kingdom will inform the Council of such date of entry into operation.
I'm aware of cases where BA have paid up, also cases where easyJet have not.
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Old Jan 1, 18, 10:48 am
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Originally Posted by corporate-wage-slave View Post
Not quite, see Article 1, clause 3:
3. Application of this Regulation to Gibraltar airport shall be suspended until the arrangements in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 enter into operation. The Governments of Spain and the United Kingdom will inform the Council of such date of entry into operation.
You are drawing a flawed conclusion from that paragraph.
What it says is that Gibraltar airport is out of scope. It does not say that all flights which come into contact with it are not covered.

This is why the RAM example I cited is not covered.
But BA and easyjet flights certainly are.

I'm aware of cases where BA have paid up, also cases where easyJet have not.
I'm personally aware of probably well over 100 specific cases where BA have paid out. And I'm NOT aware of any cases where they have not.
I'm probably aware of 40+ cases where easyJet have paid out. While there have been some easyjet initial attempts to argue it doesn't apply they have to my knowledge NEVER held to that point when challenged on it (I will say I know of some cases where people didn't bother challenging them on it, but I know of no instances where when challenged easyJet did not ultimately back down).

(Also loads of Monarch cases too).

Anyone who has been rebuffed just needs to challenge them on it. Easyjet have generally given me lots of silly 261 arguments, where as BA uses robot replies to field first line enquires, I think U2 use people without much knowledge who look it up for themselves, you only get the proper people who know what they are talking about when pushed.
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Old Jan 1, 18, 11:02 am
  #15  
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Originally Posted by David-A View Post
You are drawing a flawed conclusion from that paragraph.
What it says is that Gibraltar airport is out of scope. It does not say that all flights which come into contact with it are not covered.
Ok, the back story is that Madrid wanted to use the previous 1991 Regulation to resolve a series of longstanding issues with the United Kingdom, relating to both overflight and the use of the airport by their own airlines. As you will know better than me, the Gibraltar government also has their own views about this. In 1987 a heads of agreement was reached which was intended to resolve this and other aviation related matters to the Rock, but to the best of my knowledge this was not resolved and remains unfinished business. In order to prevent this unresolved matter from blocking the entire revised Regulation in 2002-2003, the Commission Directorate put that clause in to take Gibraltar out of scope, see also preamble 24. I did check with the CAA on this point back in 2015 and this wording emerged from those discussions.

The sensible thing to do is for me to link that section down to your comments and then people can see the different perspectives here.
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