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The 2020 BA compensation thread: Your guide to Regulation EC261/2004

The 2020 BA compensation thread: Your guide to Regulation EC261/2004

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Old Nov 7, 20, 4:07 am   -   Wikipost
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Old Jan 3, 20, 1:02 pm
  #31  
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Originally Posted by richardwft View Post
We’re talking a singular crew member who may have fallen ill, not a full set of cabin and flight crew members.

B788s, 9s and 10s are cash cows for BA between LHR and the US, simple back up crew planning is possible and affordable to negate 24 hour delays.
But you need to cover for several possible scenarios,

what if it was a member or members of cabin crew that were incapacitated? So that the flight had to be cancelled because the remaining numbers were below the safety (not just the service) number to operate?

No good only having a pilot on standby then would it?

can a first officer cover for a captain? A captain might not like being relegated to being first officer.

as I said in response to an earlier post of yours I’m certain BA have done an assessment of the costs of having standby crew(s) on standby at various locations against the possible cost of EU261 compensation. And having standby staff all over the place would soon reduce the profitability of these ‘cash cows’

Do any other airlines do what you expect BA to do? I don’t believe so.
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Old Jan 3, 20, 1:06 pm
  #32  
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Guys, there are some interesting posts above, and you will all know that I can play Armchair CEO with the best of them. However this is primarily a help thread for those with EC261 specific issues, so can I prevail on the relevants to kindly leave this issue at this juncture?
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Old Jan 3, 20, 1:08 pm
  #33  
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Perhaps an mod could spin off the ‘reasonable crew cover’ to a sepatate thread ?.
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Old Jan 4, 20, 10:03 am
  #34  
 
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I'll help to get back on topic with a question about what my best bet is to deal with a delay issue I'm currently experiencing. I'm sat at Salzburg waiting for BA7330 to Manchester. It's going to end up being about 4 hours late, current arrival time is showing as 22:57. Reason for the delay is very late incoming aircraft, which flight radar sleuthing suggests was caused by fog at Chambery which held up its first trip of the day.

The main issue I have is that I live in Durham so had a train booked to get home. I'm now going to be way later than the last train, the nearest to home I could get would be York and that would be around 2am.

I don't therefore have much choice other than stay in an airport hotel tonight and then get a train back in the morning. Hotel is about £90, and there are still some advance tickets on the train for about £40. Will this be something which can be claimed under EC261, or am I dependent on BA goodwill? I'm assuming standard EC261 compensation will be due as the weather issue was what delayed the earlier flight rather than mine.

Thanks.
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Old Jan 4, 20, 1:07 pm
  #35  
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Originally Posted by taranty View Post
The main issue I have is that I live in Durham so had a train booked to get home. I'm now going to be way later than the last train, the nearest to home I could get would be York and that would be around 2am.
If there is no bad weather between Manchester and Salzburg then yes, I would expect you to be able to claim for EC261. I wouldn't do anything yet in terms of hotel (etc), since there is always the risk the crew will also go out of hours at this rate.

In terms of what to do there after, I think if you demonstrate this is the most cost effective solution then I would hope BA would cover this. Strictly speaking your Durham train service counts as consequential losses, there again there will be cases where BA would pay the taxi from Manchester to Durham (which I think would be about £200). However I would hope that BA would pick up the hotel bill for Manchester instead.

At the moment it seems your arrival is creeping later and later, I hope that BA will do their best to look after you.
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Old Jan 6, 20, 6:14 am
  #36  
 
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Originally Posted by corporate-wage-slave View Post
If there is no bad weather between Manchester and Salzburg then yes, I would expect you to be able to claim for EC261. I wouldn't do anything yet in terms of hotel (etc), since there is always the risk the crew will also go out of hours at this rate.

In terms of what to do there after, I think if you demonstrate this is the most cost effective solution then I would hope BA would cover this. Strictly speaking your Durham train service counts as consequential losses, there again there will be cases where BA would pay the taxi from Manchester to Durham (which I think would be about £200). However I would hope that BA would pick up the hotel bill for Manchester instead.

At the moment it seems your arrival is creeping later and later, I hope that BA will do their best to look after you.
At the time BA, proactively at least, did pretty much nothing. There wasn't even an email or text to announce the delay, it was just luck that I checked status on the app and saw the delay. There was also nothing mentioned onboard other than an apology and explanation for the delay, no mention of whether there was anybody on the ground at Manchester that would be able to help with how to approach onward arrangements. Mind you, by the time we arrived (just before 11pm) I suspect there was nobody there to help anyway. The arrival experience was not good, we were dumped at a remote stand near the Jet 2 hangar, then bussed all round the place (doing a full circuit of the parked up Thomas Cook A330s) and when we finally made it to the door there was nobody there to open it! I appreciate this is mostly on the airport rather than BA, but minor further delays like that seem a lot more irritating in the context of a badly disrupted trip. The exec club line earlier in the day though was excellent, they tried everything to find a way to get me back to Manchester in time for the last train, unfortunately none of it was going to work.

I'll get the 261 claim done later today and ask for the hotel and train ticket at the same time. The website suggests the hotel ought to be covered, and hopefully they'll do the decent thing for the train. I will report back once there's a decision.

Last edited by taranty; Jan 6, 20 at 6:14 am Reason: Typo
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Old Jan 6, 20, 9:30 am
  #37  
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Originally Posted by taranty View Post
I'll get the 261 claim done later today and ask for the hotel and train ticket at the same time. The website suggests the hotel ought to be covered, and hopefully they'll do the decent thing for the train. I will report back once there's a decision.
Yes, please report back on how this worked out. The delay in Chambéry was real enough, I saw press reports of sports centres in Aix-les-Bains being opened up as a makeshift dormitory for the large number of people stranded. But that doesn't have a bearing on your claim in my view.
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Old Jan 6, 20, 1:33 pm
  #38  
 
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If anyone is interested or has any advice, here's how I am getting on with my 21-hour delay in Austin last week:

My first response from BACS was basically 'we've looked up the flight records, and the pilot was sick, so we don't have to pay 261 compensation'.

I replied asking 'What about the bit in the delay email that said "While a replacement member of crew will be able to operate, regrettably we have had to make the difficult decision to delay this flight overnight."?', and their response was to ignore that and say the same thing as before; 'the pilot was sick, that's an extraordinary circumstance, we don't have to pay 261 compensation'.

I replied again citing the case* of Smith/Collinson vs BA plc 30 March 2015 (in which a flight was delayed 11 hours leaving the Bahamas due to a sick pilot) that ruled against BA: The judge said "I am not satisfied, on the balance of probability, that the sudden illness of the captain was an extraordinary circumstance within the meaning of the Regulation." They took longer to reply this time, and have once again ignored my arguments and said 'sick pilot, don't have to pay 261 compensation', adding the following impenetrable and irrelevant (who is in Cape Town here?) passage "As your flight was delayed due to a member of the flight crew reported sick and wasn't well enough to operate the flight. Because Cape town isn't the main airport we operate from we didn't have a standby member of flight crew available.", and finally inviting me to take my case to CEDR.

I kind of feel like this is just BA saying 'if you want your compensation, we're going to make it as difficult as possible for you to claim it'. They've never actually cited anything firm that says a sick pilot is within the realms of extraordinary circumstance, other than just saying it is. Am I barking up the wrong tree here?

Somebody above mentioned a recollection of a CEDR ruling saying sick pilots are extraordinary circumstances after all, which kind of contradicts the judge's ruling in the aforementioned case. I don't suppose anyone has any more information on that? Searching these EC261 threads here for 'CEDR' is understandably a nightmare. Would I be better going down the MCOL route instead, given the court ruling that appears to be in my favour?

Any advice always welcome!

*I would link to the PDF of this but I don't have five posts yet and it won't let me, sorry!
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Old Jan 6, 20, 4:27 pm
  #39  
 
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If courts decide that an aircraft going tech isn't an extraordinary circumstance, then a human going tech isn't extraordinary either, makes sense!
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Old Jan 7, 20, 5:33 am
  #40  
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Originally Posted by trickartt View Post
Somebody above mentioned a recollection of a CEDR ruling saying sick pilots are extraordinary circumstances after all, which kind of contradicts the judge's ruling in the aforementioned case.
I think that was me Don't let that put you off - I could be mis-remembering.

I'd suggest you go the CEDR route and highlight the previous case that you've mentioned.

Personally - I wouldn't claim in this case, but that's just me.
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Old Jan 7, 20, 5:46 am
  #41  
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Originally Posted by trickartt View Post
Would I be better going down the MCOL route instead, given the court ruling that appears to be in my favour?
The big disadvantage of MCOL is that you can't really do it on a whim, you need to be well organised, and able to respond quickly to the process, and there is a risk that you will end up out of pocket.

On the other hand it is the better process if you are arguing on the basis of the intent of the Regulation, CEDR is very much tied in to a close reading of past CJEU rulings, though with one exception: if BA's submitted evidence gives areas of doubt then the adjudicator does rule on the balance of probabilities and often not on BA's side of the argument, the bias seems to be to the consumer.
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Old Jan 7, 20, 7:05 am
  #42  
 
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Originally Posted by trickartt View Post

I kind of feel like this is just BA saying 'if you want your compensation, we're going to make it as difficult as possible for you to claim it'. They've never actually cited anything firm that says a sick pilot is within the realms of extraordinary circumstance, other than just saying it is. Am I barking up the wrong tree here?
I think this is exactly what they are doing.

Whilst these guys are clearly compensation lawyers and thus not entirely unbiased, it's worth having a look at:

https://www.bottonline.co.uk/flight-...-crew-sickness
https://www.bottonline.co.uk/blog/ju...y-compensation

District Judge Beck said that although a crew member falling ill mid-flight is “unusual”, it should not be considered extraordinary because “it is an inescapable fact that, on a day-to-day basis, members of staff become ill and some are taken ill and at extremely inconvenient times.”

The Judge added that if an airline chooses not to pay for relief staff at their destination airports because it is not “commercially viable”, they should expect to pay compensation when something goes wrong. He said:

“If the Defendant does choose to operate with the bare minimum of staff, I think they must also build into their thinking the risk that they may have to pay passengers compensation under the Article, if as in this case, the Defendant is caught out by a member of staff being taken ill.”


I'm not a specialist at all in this area of law (or indeed anything to do with claims/compensation), but as a generalist commercial lawyer what is said in these articles makes sense to me.

As noted in the first of those links, the issue here is that you're likely to have to push it very hard to win on this. The problem is that whilst there are clearly a number of court decisions which support your position, it's all first instance so doesn't actually set a formal legal precedent. It's no doubt something which would be persuasive in later cases, but it's not technically precedent. It's counter-intuitive, but it would actually be better if these people lost the first case and then ended up winning on appeal in a higher court which did set a precedent. From the airline perspective there's really nothing for them to lose by refusing to pay out in these circumstances and making passengers go to some kind of dispute resolution to get a payment. It's not just BA either, there's an example of the same firm winning a case against Finnair if you do some googling. In the absence of legal precedent or clarity in the regulation then an airline has everything to lose by conceding 261 applies in these circumstances.

I think your best bet is to demonstrate very clearly to BA that you are not going to let this drop, you are well aware of multiple examples of airlines losing cases in these circumstances and that is what will ultimately happen in this case. Maybe even throw something in about having spoken to solicitors who are willing to take the case on a no win no fee basis if BA do not agree to pay what is due. The point is of course to make it clear that it will cost BA less overall to simply pay out now, but they will of course weigh that up against the wider cost of being seen to accept this sort of claim without being forced to.

I'd therefore send a response along those lines, but if you don't get anywhere it's worth considering using one of the specialist firms to persue it on your behalf. Yes, you'd lose around 25% of the compensation if successful, but on the flip side CEDR would need a load of your time and you'll also have a better chance of a positive outcome if using a firm that do this sort of thing all the time.
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Old Jan 7, 20, 7:17 am
  #43  
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Originally Posted by taranty View Post
....throw something in about having spoken to solicitors who are willing to take the case on a no win no fee basis if BA do not agree to pay what is due.....
Don’t bother with this. If you feel you have a case go to CEDR asap.
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Old Jan 7, 20, 7:29 am
  #44  
 
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Another vote for either referring things over to CEDR or raising a MCOL. There is rarely any benefit to using a 3rd party firm to make a claim/complaint. You still end up having to essentially provide the firm with pretty much the exact same type and level of information as you'd include in a claim you were making yourself (so little or no actual saves in terms of time/effort) and you end up paying a hefty sum to them for the privilege. I have no personal CEDR experience, but I do know that raising a MCOL and navigating that process is easy and very straightfoward.
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Old Jan 7, 20, 11:05 am
  #45  
 
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Originally Posted by richardwft View Post
Don’t bother with this. If you feel you have a case go to CEDR asap.
In fairness, in the context you have quoted it the suggestion was simply putting this in an email to BA to make very clear to them that the matter would not be allowed to drop, with the aim of convincing them to just pay out in the first place. That seemed reasonably sensible.

Assuming you were actually however getting at the suggestion to use a firm rather than progressing things personally with CEDR, I'm coming at this specifically in the context of this case and how I would approach it, given the understanding and experience I have as a lawyer of various dispute resolution procedures. Adjudication, which CEDR involves, often leads to a "common sense" result, rather than what is necessarily correct legally (remarkably the two do not always coincide!). In this case I think that potentially benefits BA, because it's relatively easy to argue that it isn't "reasonable" to have spare crew waiting away from base. Legally this argument appears to fail, but that's no guarantee of a win in front of an adjudicator which is why I don't think this is a great case to run at CEDR.

I'd personally happily hand this one over to experts to (a) maximise my chances of winning and (b) not have to spend a bunch of time hunting for relevant decisions to refer to when I didn't really know where to look in the first place. At a cost of around 25% of the compensation I think that would be the best overall approach. In effect this ends up in the same place as an MCOL, only it's not you having to do the legal research to present the argument.That's the final point to make, it's not about the simple provision of information which I agree would be needed regardless of whether you do something yourself or use a firm. It's the research and preparation of the argument, i.e. the bit which actually does the persuasion, which gets taken care of by someone else and better than someone inexperienced would do it. Again, in this specific case that part of it would be very important, so let someone do it who has already run and won that argument in a legal context.

Obviously what you can do is have a punt with CEDR first, and if that fails follow up with something through the Courts via a firm. All you've got to lose in that context is £25 and some time/effort. For me that time/effort wouldn't be worth it even though I'm pretty well placed to run my own argument, but others would likely be happy to give it a bash. For what it's worth I think adjudication, mediation, ombudsmen etc absolutely have massive benefits, and professionally I can't stand the whole claims management industry. I just think that in this particular case the legal route is the likeliest path to success.
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