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The 2023 BA compensation thread: Your guide to Regulation EC261 / UK261

Old Jan 1, 2023, 11:31 am
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The 2023 BA compensation thread: Your guide to Regulation EC261 / UK261

Old Oct 25, 2023, 2:51 am
  #2191  
 
Join Date: Apr 2017
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Hi all,

I'm now 8 weeks from submitting a duty of care request to BA, for disruption on my famous Ibiza trip. Our initial flight got cancelled, and we got our UK261 compensation no problem within a few weeks. BA re-booked us via Barcelona the following day, but we then got stuck in the air traffic control chaos and ended up needing a hotel in Barcelona that night, and breakfast, totalling about 200. I submitted a seperate claim and have heard nothing back from BA at all, despite chasing. As it's now 8 weeks, I'm just navigating the CEDR online form, which seems very much geared at compensation and establishing if the aircraft doors opened more than 3 hours late etc.. Is this the right place for a pure duty of care request? Also, the flight we ended up on only landed 1 hour late (although we were 36 hours late at this point), but there were no onward connections available, so the only option was to stay the night and fly onwards the next morning. Will CEDR chuck this straight out based on this, or will they take into account all the facts? This is the first time I've had to do this, hence all the questions.

Thanks
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Old Oct 25, 2023, 3:00 am
  #2192  
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Originally Posted by Joshm300
I'm now 8 weeks from submitting a duty of care request to BA, for disruption on my famous Ibiza trip. Our initial flight got cancelled, and we got our UK261 compensation no problem within a few weeks.
You are correct that the CEDR form seems to suppose that you are seeking compensation, but Right to Care is very much part of EC261 and therefore in scope for CEDR. Clearly in the text boxes you need to explain the story, ideally 2 or 3 sentences. In the timing, relate that to the booked, not rebooked, service but add in the text that the compensation has been paid.
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Old Oct 25, 2023, 3:13 am
  #2193  
 
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EU261 Article 9 Right to Care (Refreshments)

I have a query about Article 9 of EU261, specifically passengers shall be offered free of charge() meals and refreshments in a reasonable relation to the waiting time.

My story is as follows.

Due to fly home from MSY (New Orleans) to LHR (London) departing 21.50. At 16.05 receive message from BA to say flight delayed by 4hr 20 min until 02.10. Told check-in will open at 19.30.

Go to airport, long queue at check-in, which in fact does not open until 20.15. By the time we get through check-in and security just after 21.00 we find all the (many) food outlets closed, so no refreshments available.

When questioned about refreshments the staff (subcontracted, not BA) in departure lounge say vouchers would normally have been issued, but this did not happen on this occasion because they knew all the food outlets closed at 21.00. (Of course had they opened the check-in on time they would not have been closed.)

Ask to speak to BA staff. One person on site who eventually turns up at 23.30. Gives the same response as desk staff: We were not able to issue vouchers because they were not be able to be used here at the airport. In the end we get nowhere and the plane does not get in the air until 02.50; we are fed at 04.00, 13 hrs after we had last eaten.

(I add as a sideline that the interaction with the BA staff member turned unpleasant. My wife and I were both polite and restrained but insistent, but we met nothing but evasions and half answers, quickly accompanied by insinuations that we were drunk and/or unruly and could be denied boarding. Later in the conversation this became explicit. We later found out that another passenger who had experienced something similar. This seems to be a practised method of controlling complaints. My wife covertly recorded the whole conversation, which was submitted in evidence as part of the complaint.)

Complained to BA about failure to provide food and behaviour of BA staff. We were claiming compensation on both counts: failure to meet Article 9 obligations and distress etc etc in respect of staff behaviour. Received a weak non-apology and offer of vouchers.

Went to CEDR all claims rejected. The grounds were:

1 If no catering facilities are available at the airport, the Company would be expected to organise a minimum service. However, this requirement is considered against the practicalities faced by the Company given the circumstances at the airport. She then cites what she calls a general reasonableness test to justify the practicalities argument and quotes the 261 regulation that Care for passengers awaiting an alternative or a delayed flight may be limited or declined if the provision of the care would itself cause further delay. But this is a very specific limiting clause, not a general get-out on the grounds of reasonableness or practicality.

2 BA said that if I had submitted a claim for expenses incurred in buying food then they would have reimbursed me. But of course there was no food available to buy. CEDR said: The Company has also advised that the Customer would have been refunded its expenses but that none have been submitted by the Customer for repayment. On that basis, the Customer has not established loss for the Companys failure to comply with its obligations. Without establishing loss there can be no remedy of damages, even if entitlement and basis under law or [sic] contract were made out. But this is absurd since the very factors that stopped BA issuing vouchers (nowhere to buy food) are the same factors that prevented me from buying food to claim back from BA in the form of compensation for a loss. The end result is that where there is no food available for passengers to buy the airline can simply ignore with complete impunity its (EU261) obligation to provide it.

I found a CAA link to (originally EU) guidance for airlines on consumer law and was encouraged to find this: passengers should not be left to make arrangements themselves, e.g. finding and paying for accommodation or food. Instead, operating air carriers are obliged to actively offer care. But then I was also taken aback to see this: passengers do not have the right to be compensated for damage suffered because of a lack of care if they have not incurred expenses. This suggests the very position that is implied by the CEDR decision.

I am not a lawyer so I have been working this out as I go along. In so far as I have been claiming damages resulting from BAs breach of Article 9 Ive not been treating it as a breach of contract, because in British law remedies for such breaches exclude compensation for distress and the like. So Ive been approaching it as a duty of care issue where EU261 Article 9, The Right to Care, sets the legal framework, and is essentially non-contractual. This would make it a matter of tort where damages for distress are permitted. But this is then precluded by the guidance to airlines quoted in the previous paragraph.

I think I now understand that all of this is muddied by the Montreal Convention. As I understand it, in order to prevent airlines being subject to many different legal constraints depending on where they operate the Convention effectively suspends local legal provisions. In short, under the Convention you can claim for death, bodily injury, loss of luggage and the like, and anything that you can attach a price to, but (as per Article 29) punitive, exemplary or any other non-compensatory damages shall not be recoverable. This effectively blows my notional damages for 'distress' under law of tort out of the water.

If Ive got this right it means that if you are past check-in (hence embarking) at an airport that has no food available to buy then airlines are free to ignore Article 9 completely since there are no remedies at all for individuals. This means that in my particular case BA could well have deliberately delayed opening the check-in to avoid paying anything since they knew that nowhere would be open and there would be no comeback for the company.

Could anyone advise please? Have I generally got this right? Is my case screwed? Do I have any recourse? Anyone any thoughts? Thanks in anticipation.
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Old Oct 25, 2023, 5:08 am
  #2194  
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Originally Posted by aliquis
I think I now understand that all of this is muddied by the Montreal Convention. As I understand it, in order to prevent airlines being subject to many different legal constraints depending on where they operate the Convention effectively suspends ‘local’ legal provisions. In short, under the Convention you can claim for death, bodily injury, loss of luggage and the like, and anything that you can attach a price to, but (as per Article 29) ‘punitive, exemplary or any other non-compensatory damages shall not be recoverable.’ This effectively blows my notional damages for 'distress' under law of tort out of the water.
EC261 has two remedies in scope here, one covers reimbursement, the other compensation. I assume you got the compensation for the delay? I can't see it mentioned, but that would be 520 unless there were extraordinary circumstances. Then there is Right to Care, which is reimbursement against actual cost, Clearly BA were in breach in not having refreshments available, but that breach does not per se create a claim under EC261 and essentially I think you have understood the Montral context here too. It doesn't over-ride all legislation but the intent was more about airline's getting protection rather than customers. If you had mentioned this previously I would have suggested MCOL since there is some consumer bias there, CEDR exists to uphold the framework of EC261 and has no wriggle room. At MCOL a District Judge may have drawn from contract and Consumer Rights Act to take a broader view (particularly if travelling in Club), but the compensation may well have been 20, if that, since it's about direct costs, and being upset doesn't cut the mustard. CEDR can't magic up compensation when the scheme has no such provision. The other point is that BA are allowed to suspend food and drink provision if it would delay the flight, and ultimately BA doesn't run the airport concessions. I would say that to some extent this was predictable, water is available airside in MSY but it would have been prudent to take some food with you given the size of the airport and the late hour. Hindsight is marvellous though, I may well have not considered it either had I been in this position. BA did offer vouchers though, and that's what would seem sensible here.

Welcome to Flyertalk and welcome to the BA forum.
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Old Oct 25, 2023, 7:36 am
  #2195  
 
Join Date: Oct 2023
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Originally Posted by corporate-wage-slave
EC261 has two remedies in scope here, one covers reimbursement, the other compensation. I assume you got the compensation for the delay? I can't see it mentioned, but that would be 520 unless there were extraordinary circumstances. Then there is Right to Care, which is reimbursement against actual cost, Clearly BA were in breach in not having refreshments available, but that breach does not per se create a claim under EC261 and essentially I think you have understood the Montral context here too. It doesn't over-ride all legislation but the intent was more about airline's getting protection rather than customers. If you had mentioned this previously I would have suggested MCOL since there is some consumer bias there, CEDR exists to uphold the framework of EC261 and has no wriggle room. At MCOL a District Judge may have drawn from contract and Consumer Rights Act to take a broader view (particularly if travelling in Club), but the compensation may well have been 20, if that, since it's about direct costs, and being upset doesn't cut the mustard. CEDR can't magic up compensation when the scheme has no such provision. The other point is that BA are allowed to suspend food and drink provision if it would delay the flight, and ultimately BA doesn't run the airport concessions. I would say that to some extent this was predictable, water is available airside in MSY but it would have been prudent to take some food with you given the size of the airport and the late hour. Hindsight is marvellous though, I may well have not considered it either had I been in this position. BA did offer vouchers though, and that's what would seem sensible here.

Welcome to Flyertalk and welcome to the BA forum.
Many thanks for your speedy reply. Yes we got the 520 compensation. Right at the start of this process we decided to take the case as far it would reasonably go, but thought it not worth going properly legal. Your comment in relation to MCOL seems to confirm this.

I fully understand the point about delay, but BA knew at least 6 hours ahead of original departure time that the flight would be delayed until 02.10, so making provision for care of passengers was never likely to cause further delay. But they didnt even warn us that no food would be available after 21.00. (We asked about this and the BA woman said it would be too much information for passengers.)

My wife and I are both pensioners. We are not frequent flyers and this was just the nightmarish return from a holiday trip. We had no idea about MSY or we would certainly have taken precautions. We simply assumed on our way to the airport that things would be open and (from what wed read in the press) that in the cases of delay airlines had a responsibility to provide food etc. This may sound nave; with hindsight it certainly was. In the six months that Ive been going through this process Ive been astonished how the normal reality of rules and regulations just evaporates when pushed to mean something in practice, and that there is in effect no remedy for what we experienced at the airport, in particular the threats from the BA staff member (which was worse for us than the simple absence of food). When I worked out what the relevance of the Montreal Convention was and why it kept appearing in BAs defence (and now in CEDR) I was quite incredulous, and just wanted to check that Id really understood the Alice in Wonderland implications. Even the CEDR turned out to be much more formally legalistic than their general blurb leads you to expect and you need have legal knowledge even to understand their verdict. Even their adjudicator makes erroneous factual statements (such as there was food available and the airline provided drinks) that BA itself never even claimed. Its been a dreadfully chastening experience from start to finish.

Yes, the vouchers would be a good idea in retrospect, but of course when you go to CEDR all BA offers of settlement get taken off the table, so theyve gone too. And having failed completely in the claim through CEDR we shall face the final irritation of being charged 25 by them. A small amount, but it stings.

I wish with all the research that Ive had to do Id found this site earlier. Yours has been the most supportive source of help that Ive come across, and Im grateful. But it seems we have reached the end of the road.
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Old Oct 25, 2023, 7:37 am
  #2196  
 
Join Date: Oct 2023
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Originally Posted by corporate-wage-slave
EC261 has two remedies in scope here, one covers reimbursement, the other compensation. I assume you got the compensation for the delay? I can't see it mentioned, but that would be 520 unless there were extraordinary circumstances. Then there is Right to Care, which is reimbursement against actual cost, Clearly BA were in breach in not having refreshments available, but that breach does not per se create a claim under EC261 and essentially I think you have understood the Montral context here too. It doesn't over-ride all legislation but the intent was more about airline's getting protection rather than customers. If you had mentioned this previously I would have suggested MCOL since there is some consumer bias there, CEDR exists to uphold the framework of EC261 and has no wriggle room. At MCOL a District Judge may have drawn from contract and Consumer Rights Act to take a broader view (particularly if travelling in Club), but the compensation may well have been 20, if that, since it's about direct costs, and being upset doesn't cut the mustard. CEDR can't magic up compensation when the scheme has no such provision. The other point is that BA are allowed to suspend food and drink provision if it would delay the flight, and ultimately BA doesn't run the airport concessions. I would say that to some extent this was predictable, water is available airside in MSY but it would have been prudent to take some food with you given the size of the airport and the late hour. Hindsight is marvellous though, I may well have not considered it either had I been in this position. BA did offer vouchers though, and that's what would seem sensible here.

Welcome to Flyertalk and welcome to the BA forum.
Many thanks for your speedy reply. Yes we got the 520 compensation. Right at the start of this process we decided to take the case as far it would reasonably go, but thought it not worth going properly legal. Your comment in relation to MCOL seems to confirm this.

I fully understand the point about delay, but BA knew at least 6 hours ahead of original departure time that the flight would be delayed until 02.10, so making provision for care of passengers was never likely to cause further delay. But they didnt even warn us that no food would be available after 21.00. (We asked about this and the BA woman said it would be too much information for passengers.)

My wife and I are both pensioners. We are not frequent flyers and this was just the nightmarish return from a holiday trip. We had no idea about MSY or we would certainly have taken precautions. We simply assumed on our way to the airport that things would be open and (from what wed read in the press) that in the cases of delay airlines had a responsibility to provide food etc. This may sound nave; with hindsight it certainly was. In the six months that Ive been going through this process Ive been astonished how the normal reality of rules and regulations just evaporates when pushed to mean something in practice, and that there is in effect no remedy for what we experienced at the airport, in particular the threats from the BA staff member (which was worse for us than the simple absence of food). When I worked out what the relevance of the Montreal Convention was and why it kept appearing in BAs defence (and now in CEDR) I was quite incredulous, and just wanted to check that Id really understood the Alice in Wonderland implications. Even the CEDR turned out to be much more formally legalistic than their general blurb leads you to expect and you need have legal knowledge even to understand their verdict. Even their adjudicator makes erroneous factual statements (such as there was food available and the airline provided drinks) that BA itself never even claimed. Its been a dreadfully chastening experience from start to finish.

Yes, the vouchers would be a good idea in retrospect, but of course when you go to CEDR all BA offers of settlement get taken off the table, so theyve gone too. And having failed completely in the claim through CEDR we shall face the final irritation of being charged 25 by them. A small amount, but it stings.

I wish with all the research that Ive had to do Id found this site earlier. Yours has been the most supportive source of help that Ive come across, and Im grateful. But it seems we have reached the end of the road.
aliquis is offline  
Old Oct 25, 2023, 9:26 am
  #2197  
 
Join Date: Mar 2015
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Data point for anyone interested:
  • Flight cancellation / subsequent delay experienced 30 September
  • Claim filed online 30 September
  • Acknowledgement of eligibility and payout received 20 October
  • 2080 (520 x 4 pax) cash in bank account 25 October
Satisfied.
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Old Oct 25, 2023, 9:36 am
  #2198  
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Originally Posted by aliquis
Yes, the vouchers would be a good idea in retrospect, but of course when you go to CEDR all BA offers of settlement get taken off the table, so theyve gone too. And having failed completely in the claim through CEDR we shall face the final irritation of being charged 25 by them. A small amount, but it stings.
They don't actually charge, they keep that in reserve for those who complain very regularly or have a completely silly case. I don't think you in any danger of that. If you think CEDR has err'd in terms of law, you still have MCOL open to you but the prior investigation will count against you to a degree, unless the findings have some hum-dinger of an error in there, in which case the DJ will happily take it apart.
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Old Oct 25, 2023, 9:54 am
  #2199  
 
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Originally Posted by hsumh316
Very helpful. Here are some more details. Original BA flight was at 16:25 and rerouted to UA for a 12:30 flight. Received cancellation notification 18:26 the night prior and no notification of what I was rebooked on to. Fortunately, I found out when I went to try and rebook my flight but was unable to do so online and had to call to rebook. It probably had to do with the fact that I got rebooked on to UA. As I was not in SFO i had to make last minute arrangements to leave that night and book a hotel to make the early flight out the next day. I was originally supposed to arrive at SFO 6 hours before the BA flight. Would this be covered under insurance? Hopefully I can recoup some of the costs. Thank you CWS and I am very appreciative of all the advice you have given. I assume I can still get ORC?
I have been denied any compensation and am looking to take the CEDR route even after following most of the wording by SimonMiles on post #1543 and including the relevant cases. Can I ignore this on the CEDR website: "Applications for flight delay compensation can only be considered for delays of 3 hours or more."?

Thanks
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Old Oct 25, 2023, 11:06 am
  #2200  
 
Join Date: Oct 2023
Posts: 4
Originally Posted by corporate-wage-slave
They don't actually charge, they keep that in reserve for those who complain very regularly or have a completely silly case. I don't think you in any danger of that. If you think CEDR has err'd in terms of law, you still have MCOL open to you but the prior investigation will count against you to a degree, unless the findings have some hum-dinger of an error in there, in which case the DJ will happily take it apart.
Thanks - that's a small relief anyway. From what you have said in reply to what I've written above I don't think there's much likelihood they have erred in law. Though I'm still incredulous at the sheer pointlessness of the 'refreshments' clause in Article 9, which seems to be utterly meaningless - if it were just a 'recompense for food bought' clause then it would be a lot less misleading and I wouldn't have gone down this long track. If I thought there was now something to be done that had a guaranteed positive outcome of some kind (any kind!) then I'd do it. But as there doesn't seem to be I think I could be risking money and wasting more time for a very small chance of a very small gain. But at least I suppose my post might warn others who are as unknowing as I was.

Last edited by aliquis; Oct 25, 2023 at 11:21 am
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Old Oct 25, 2023, 11:23 am
  #2201  
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Originally Posted by hsumh316
I have been denied any compensation and am looking to take the CEDR route even after following most of the wording by SimonMiles on post #1543 and including the relevant cases. Can I ignore this on the CEDR website: "Applications for flight delay compensation can only be considered for delays of 3 hours or more."?

Thanks
Yes because you were not delayed. You were cancelled, different area of EC261.
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Old Oct 25, 2023, 12:51 pm
  #2202  
 
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Data point:

Flight cancelled short notice on 3rd October, rebooked onto one several hours earlier. EC261 compensation claim submitted later same day, kept it simple and left the additional info field blank.

25th October (22 days later), received email with claim approved for 220 plus 10,000 additional Avios which I didn't ask for.

Still waiting on another claim from 4th July - coming up to 4 months!
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Old Oct 26, 2023, 5:54 am
  #2203  
 
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Kia Ora all,
Quick question. Does EU261 apply to delayed arrival? The LUX-LHR arrived on time. Waited for a gate agent and then bussed at T3. Went to carousel for bags and waited. Left T3 after midnight. No public transport options. BA bag staff were swamped by 150+ passengers but their advice was sort yourself out and send in claims.
The BA handling high-loader broke down and couldnt unload the containers so most left without their bags. As I was near the back I was nowhere near being served when the bags appeared.
just a crappy experience. Carousel number 3 on the board and they eventually emerged from carousel 10.
I bailed and went to Hilton T4 (T2 Hilton was full) and a 30 cab fare from central area.
I visit UK every year and use BA on short haul hops and this is the third time Ive had to book a hotel and claim. (Im doing 20 flights around Europe in a month and BA is the only airline to offer me any disruptions). Im flying them this evening to NCL. Here goes.
Thanks for your thoughts.
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Old Oct 26, 2023, 5:59 am
  #2204  
 
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Originally Posted by CHCflyer
Kia Ora all,
Quick question. Does EU261 apply to delayed arrival? The LUX-LHR arrived on time. Waited for a gate agent and then bussed at T3. Went to carousel for bags and waited. Left T3 after midnight. No public transport options. BA bag staff were swamped by 150+ passengers but their advice was sort yourself out and send in claims.
The BA handling high-loader broke down and couldn’t unload the containers so most left without their bags. As I was near the back I was nowhere near being served when the bags appeared.
just a crappy experience. Carousel number 3 on the board and they eventually emerged from carousel 10.
I bailed and went to Hilton T4 (T2 Hilton was full) and a 30 cab fare from central area.
I visit UK every year and use BA on short haul hops and this is the third time I’ve had to book a hotel and claim. (I’m doing 20 flights around Europe in a month and BA is the only airline to offer me any disruptions). I’m flying them this evening to NCL. Here goes.
Thanks for your thoughts.
I presume you mean delayed luggage arrival? If so, no - this is outwith the remit of EU/UK261; you are largely reliant on the Montreal Convention instead.

There's nothing lost by putting in a claim/complaint - but with the flight itself arriving on time, I wouldn't be convinced that BA would reimburse you for your hotel/taxi costs. They may argue you should have continued to your destination as planned and simply claim back the cost of temporary replacement items as needed until your luggage caught up with you.

A 30 cab from T3 to T4 also strikes me as somewhat extravagant although I recognise that if it's after the time of the last Elizabeth line service (23:52) then it's no longer as convenient by public transport (you'd have to get the Tube to Hatton Cross and then a bus, or the N30 bus via T5).
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Old Oct 26, 2023, 6:00 am
  #2205  
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Originally Posted by CHCflyer
Kia Ora all,
Quick question. Does EU261 apply to delayed arrival? The LUX-LHR arrived on time. Waited for a gate agent and then bussed at T3. Went to carousel for bags and waited. Left T3 after midnight. No public transport options. BA bag staff were swamped by
Yes, but I'm not sure you're in the definition, which is arrival time when the doors of the aircraft are open and passengers are able to leave. There is no reference to baggage in EC261 and so you have to imagine an HBO traveller here. That said, I'd imagine BA will do at least some right to care here, though there is context missing here (in terms of onwards travel) so I can't really say much about that. Taxi fares after midnight are usually paid, Bath Road hotels are usualy better for T2, T2 to T4 is tricky combination after midnight.
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