bmj1

Hi team,

Key facts as follows:

• BA notify us of a cancellation due to Italian airstrike, <24 hours before the flight
• We contact BA, who advise they are putting us on a flight that will get us home over 24 hours later than the original flight
• We book an alternative flight with EZJ, that gets us home just 6 hours late, and avoids the need to stay overnight in a hotel, saves us cost of food and further taxi costs

What are we entitled to contractually from BA - if anything ?

Many thanks in advance for the help

gcuk

On the facts presented, you are entitled to a refund from BA.
Duty of care would apply until your rebooked BA flight, but as you have rebooked your own EasyJet flight, the refund will absolve BA of further duty of care liability.
As the strike is outside BA’s control, no compensation would be due.

bmj1

So just for clarity, even though their rebooking was > 24 hours later and would have required them covering food, hotel and travel, our cheaper flights the same day are not covered under duty of care ? I.e. we helped mitigate their losses..

Tobias-UK

Not duty of care, but you may still be entitled to reimbursement if you did not seek a refund for your cancelled BA flight. It’s either or, not both.

corporate-wage-slave

It's quite a complex area and would require some unravelling. To take one of the many scenarios, if BA cancelled the flights because they were instructed not to operate their services, but easyJet was not covered by that restriction and/or used different airports, then BA may have some defence to this. At the other extreme if BA just didn't want to take the risk, whereas easyJet was ok with the risk, then BA is in a much weaker position here. There isn't enough information here to give specific advice. But as a general principle, BA does have a responsibility to get you home and the CAA guideline is for a same day flight where possible. So at the very least BA should have rebooked on other services, if they were running. BA won't and can't rebook on easyJet - that isn't an IATA airline and keeps its ticketing outside the global system. Right to care isn't the issue here, you didn't need this. It's right to a rebooking that may be at stake.

bmj1

Hey CWS, thanks for this. Anything you can point me to in terms of my rights to a rebooking ?

And in terms of enforcing it - as they refused - what is my best route? Small claims court ?

NickB

Let us be clear: BA can rebook a passenger on Easyjet: BA can enter into contracts with third parties outside of the IATA system: it can charter a coach when needed, it can contract with a taxi firm to carry a passenger to destination, etc... They won't do it but it does not mean that they can't do it.

Secondly, if BA does not comply with its obligation to reroute a passenger at the earliest opportunity, including carriage on another carrier (and there is no reason here to distinguish between IATA carriers and others), then, if the passenger goes ahead and self-rebooks, the airline must refund the passenger of the cost of the rebooking (unless, as Tobias-UK indicated, the passenger elects to go for a refund of the original flight instead).

If the passenger sticks with the next day BA routing, then BA is liable to pay the standard Article 7 compensation even where the original cause of the cancellation constituted an extraordinary circumstance as, in this situation, according to the ECJ in C‑74/19 LE v TAP, the next day re-routing does not normally constitute a 'reasonable measure' if earlier flights were available on other carriers (unless such rerouting would constitute an "intolerable sacrifice for the air carrier concerned) and, therefore, does not exempt the airline from its obligation to compensate.

bmj1

Hi Nick,

Thank you so much. That's exactly the situation. We requested the Easyjet flights the same day, and they refused. Then they have refused to reimburse us the cost of these flights after we booked these ourselves.

Would you recommend small claims court, or an alternative route to claim the compensation ?

Prospero

I would read Case C‑74/19 thoroughly before you decide on what action you wish to take, bearing in mind the compounded specifics of that case and that the judge ruled the conditions were not extraordinary

https://eur-lex.europa.eu/legal-cont...EX:62019CJ0074

If you can find case law for a comparable ATC related cancellation, this might help

NickB

Not quite. The ECJ considered that the events (delay resulting from diversion due to unruly passengers) did constitute an extraordinary circumstance. However, this did not absolve the airline from liability to compensation on account of the airline not having taken all reasonable measures to address the situation (rerouting the next day being deemed not to constitute a reasonable measure when there were alternative flights, including flights on other carriers, arriving earlier).
The OP is in a slightly different situation to LE v TAP, however, since they did not accept the later rerouting and instead rerouted themselves. In the OP's situation, it is therefore not an issue of compensation under Article 7, which was the issue in LE v TAP. LE v TAP is, however, useful for establishing that rerouting the next day is not normally reasonable when there is re-routing available on other carriers the same day. Strictly speaking, the issue is slightly different, i.e. the OP's issue is one of interpretation of Article 8 on re-routing rather than Article 7 on compensation. However, it would be bizarre for the Court to consider that rerouting that is deemed "unreasonable" for the purposes of Article 7 is OK for the purposes of Article 8.

NickB

Others, such as CWS, may wish to comment as to whether CEDR would be a waste of time in this situation or not but, yes, small claims would be the most obvious route if the CEDR route is excluded.

corporate-wage-slave

In the OP's shoes I'd be most likely to be considering MCOL (small claims court) since CEDR will certainly be slower and I'm not entirely confident they would put the customer's interests first. On the other hand the CEDR process is more user friendly and doesn't attract any upfront fees.

The issue with BA rebooking on to easyJet is that the BA booking system has an IATA backbone and easyJet has resisted overtures to link in to the protocol that swaps booking data between carriers. There simply is no button that a contact centre agent can press to book an easyJet flight, as in the here and now. If at some point BA gave agents a corporate credit card (as an example) and allowed them to use it to book (as opposed to rebook) a flight via the internet then that's a future "could" option and I can't see it happening.

NickB

I agree that I can't see that happening either. But that is because of a choice of BA not to empower its agents to do so rather than an impossibility as such, which is relevant for determining whether BA is off the hook or not for not rerouting passengers on 'off-grid', so to speak, airlines. Even if BA does not want to establish processes to allow such rebookings themselves, it could at least have a process for allowing agents in suitable circumstances to authorise passenger expenses for non-IATA rebookings (or indeed rebookings by alternative modes of transport where appropriate) so as to allow passengers to go ahead and rebook themselves and seek reimbursement from BA afterwards.

I am not holding my breath for this to happen, however.

bmj1

Hi both - just to say thank you for your kind advice.

We did MCOL - and BA posted us a cheque and a "defence" that they have now reimbursed us for the Easyjet flights..

Feels like a reasonable result.