NFH

We flew last night on flight EZY8720 from LIS to LGW and suffered a significant delay. The cause of the delay is apparent from the aircraft's flight schedule on the day in question, Sunday 18th December 2022. Fortunately LGW, FUE and LIS are all in the same GMT time zone, which makes the times simpler to read. The scheduled times below are without brackets and actual times of departure and arrival are within brackets:

1. EZY8535 07:20 (07:47) LGW - FUE (11:41) 11:35
2. EZY8536 12:15 (12:46) FUE - LGW (16:23) 16:30
3. EZY8719 16:30 (18:20) LGW - LIS (20:49) 19:15
4. EZY8720 19:50 (22:03) LIS - LGW (00:03) 22:30

The interesting point here is that this aircraft, G-UZHT, was scheduled to land at LGW at 16:30 and immediately to take off from LGW also at 16:30. So it was impossible for the last two flights of the day to operate on time. Both FlightRadar24 and EasyJet's flight tracker were forecasting significant delays to the last two flights of the day even while the second flight was still airborne and on track to arrive early at LGW. Is it common for EasyJet to make such a scheduling error, making it impossible for the aircraft's subsequent flights to operate on time?

At 21:43, the first officer on flight EZY8720 announced "First of all apologies for the delay to this service. We picked up this aircraft after delays out of London Gatwick late inbound and then we had a slight technical defect with it which required repairing before we departed. We managed to get that all fixed now so nothing further holding us up". There was no mention of the above scheduling error.

Because of unreasonable delays in supplying buses to the remote stand at LGW, passengers didn't disembark until 00:37. Given that that flight delay caused us to miss the last Tube, and mainline trains from Gatwick had become too infrequent at that time of night to be useful, I have submitted a claim to Easyjet at https://www.easyjet.com/en/claim/welfare for the �100 cost of Uber from LGW to home pursuant to Article 19 of the Montreal Convention. Unlike EU261, there is no time threshold for delays under Article 19 of the Montreal Convention. After I submitted the form, EasyJet acknowledged via SMS that I had submitted an "EC261 expense claim", which is not true, as the form is not specific to any particular legislation. I anticipate that EasyJet will incorrectly apply EU261 time thresholds to my claim, ignoring the existence of Article 19 of the Montreal Convention, and consequently reject it. In view of EasyJet's scheduling error and the "slight technical defect", it will have no defence under Article 19 that "it and its servants and agents took all measures that could reasonably be required".

jjbiv

Most likely it wasn't a scheduling error. The most likely explanation is that something happened to the originally scheduled aircraft (e.g. inbound flight was cancelled or very delayed or aircraft had a technical issue which would take time to fix) and EasyJet swapped the flight to this aircraft to provide the best possible outcome under the circumstances. Look at the history of your flight on other days to see where the inbound aircraft usually comes from and I bet you will see it is different from this particular day.

NFH

EasyJet's correspondence team appear to have brains of monkeys. They completely ignore the existence of the Montreal Convention, which is something on which they ought to be well trained. Following are excerpts from my correspondence with them:

19/12/2022 Passenger submits expense form at https://www.easyjet.com/en/claim/welfare, which is not specific to Regulation (EC) No 261/2004.

20/12/2022 EasyJet: Our team has now reviewed your claim and can confirm that your flight from Lisbon (LIS) to London Gatwick (LGW) was delayed by Delay by 1:44 minutes . We are therefore unable to pay any of the claimed costs under the Regulation as the delay was less than 2 hours from the scheduled departure time.

20/12/2022 Passenger: The time threshold of two hours to which you refer relates to Regulation (EC) No 261/2004. If the flight had arrived at LGW on time, then I would have been able to travel by train to a London train terminal and subsequently by London Underground to home. However, the flight landed at LGW after the last London Underground train, and therefore I had to use Uber at a cost of �98.60. In this scenario, Article 19 of the Montreal Convention entitles me to recover this cost from you. Therefore please pay the �98.60 to my bank account without delay.

23/12/2022 EasyJet: I can confirm that your flight EZY 8720, was delayed less then [sic] 2 hours. Hence, I'm afraid to inform you that we are unable to honour your request for reimbursement under the regulation of EC261.

23/12/2022 Passenger: I had made it very clear in my e-mail below that I was NOT claiming under Regulation (EC) No 261/2004 but under Article 19 of the Montreal Convention. Therefore why did you write below “I'm afraid to inform you that we are unable to honour your request for reimbursement under the regulation of EC261”?

25/12/2022 EasyJet: I can confirm that your flight EZY 8720, was delayed less then [sic] 2 hours. Hence, I'm unable to honour your request for reimbursement under the regulation of EC261.

25/12/2022 Passenger: I had made it very clear in my e-mail below that I was NOT claiming under Regulation (EC) No 261/2004 but under Article 19 of the Montreal Convention. Therefore why did you write “I'm unable to honour your request for reimbursement under the regulation of EC261”?

27/12/2022 EasyJet: your flight (EZY 8720) was delayed less than 2 hours. Please be informed that the amount of taxi is not payable in case your flight is delayed as per regulations. For more information regarding your rights established by European regulation (EC) No.261/2004, you can visit the following link: https://www.easyjet.com/en/terms-and...-cancellations

27/12/2022 Passenger: You have twice ignored my question about why you refer to “EC261” after I had made it very clear that I am not claiming from you under Regulation (EC) No 261/2004 but under Article 19 of the Montreal Convention. So that I can submit a complaint to Aviation ADR, please give me your FINAL WRITTEN RESPONSE (otherwise known as a “deadlock letter”). If your final response refuses to honour my claim under Article 19 of the Montreal Convention, then you should give your detailed reasons. Your reasons should not make reference to Regulation (EC) No 261/2004 or “EC261” because I am not claiming under that legislation.

28/12/2022 EasyJet: Please be informed that as per our records the delay of the flight EZY 8720 was less than 3 hours (01 hour 41 minutes), hence, I am afraid we cannot honor [sic] your expense claim. Furthermore, we realise this is disappointing but as the claim doesn’t fit the eligibility criteria our team are unable to reconsider this decision further and your claim will now be closed. If you are not happy with the outcome that we have decided upon, you have the right to refer your complaint to AviationADR within one year of the date of this email.

globalwanderer84

Montreal Convention is not enforceable from a person to a corporation or vv - it is international law and you would need your State to support your case to file charges in an international court. For the terms of the Montreal Convention to be enforced, your State must enforce them upon the airline.This is not new.

NFH

Absolute nonsense. Where did you read this?

The Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002 implements the Montreal Convention into United Kingdom law, which is the relevant jurisdiction in the above matter. It takes precedence even over domestic legislation such as the Consumer Rights Act 2015. There is plenty of case law to support this. Other signatory states to the convention codified similar implementations into their domestic law.

Tobias-UK

MC99 establishes (and limits) liabilities in cases of delay, damage or loss of baggage (and more). An airline�s failure to provide compensation under MC99 is enforceable via the courts where necessary. Proceedings can be commenced in a claimant�s local court following that court�s usual process for debt, negligence or contract claims. Whilst MC99 is an international treaty, the claimant�s domestic court has jurisdiction to hear and decide such cases without reference to (or permission from) the State.

globalwanderer84

Exactly! You as a private citizen are not claiming under the Convention, your State is.

As to the OP - you made my point. You are again not claiming under the Convention, rather you are claiming under its domestic equivalent (which you have correctly pointed out), and that is not what you have provided to easyJet in this case.

NFH

That's a pedantic point. No court is going to dismiss a claim on the basis that the claimant cited only the Montreal Convention as opposed to the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002. In my case, I have submitted a claim to Aviation ADR as opposed to a County Court.

Tobias-UK

No. A claim is made under MC99, that is the treaty being relied on. That treaty became enforceable in the UK (for the purposes of this OP) by Statutory Instrument: The Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002.

It’s probably best we don’t muddy the waters on the rights of passengers when an airline screws up. The important point being made is that easyJet subject to MC99 and an affected passenger can claim under that treaty when that treaty comes in to play.

NFH

I have an update on this. I submitted a detailed claim to Aviation ADR on 28th December 2022. I was careful to claim only for myself, not for my girlfriend, so that we would have a second bite of the cherry in the event of a perverse decision by Aviation ADR. Almost six months later on 14th June 2023, Aviation ADR issued its determination, which was indeed perverse:
This was absolutely untrue, because in my claim I had stated explicitly that I was "not claiming under Regulation (EC) No 261/2004".

Article 19 of the Montreal Convention states "The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures".

Article 19 is very broad in scope. It covers any losses occasioned by delay of a flight. It is not limited to damage, loss, or delay of baggage and cargo. Although it does not specifically require the reimbursement of costs for onward transport, it is broadly worded in order to avoid the need to specify individual types of damages. Therefore the Aviation ADR adjudicator made an error in law. A specialist travel solicitor at Which Legal Service confirmed this to me.

To precede a new claim to Aviation ADR by my girlfriend, who was the other passenger in the booking, she submitted an expense claim to EasyJet for the �98.60 Uber fare. EasyJet quickly paid it this week. Therefore the matter is now settled without a second claim to Aviation ADR.

AviosTreasureHunter

Just found this as a follow up from discussions on BA forum.
Very useful reading.
Thanks OP for your detailed explanation regards Article 19 of MC99.
Will add this to my notes for potential future disputes with airlines.
If this had gone to Court, I believe you would have won.