My experience suing British Airways, after CEDR failed

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Two years ago we ran a detailed article on how to take British Airways to CEDR complaints arbitrationCEDR is an independent dispute resolution body that adjudicates disputes between passengers and subscribing airlines, and is meant to help both sides avoid a court case.

CEDR does not always work, however, as I found out myself last year.  I thought this article would make an interesting follow-on to our original 2017 article.

Taking British Airways to small claims court

How did I end up taking British Airways to court?

This time last year I (Rhys, not Rob, in case you didn’t notice the name at the top) was due to fly home after six months in the United States. I had been studying abroad as part of my degree in the suburbs of Baltimore, and had finished my academic year with a mini road trip visiting my friends around Pennsylvania and Maryland.

I was scheduled to fly on BA228, a Boeing 787 flight from Baltimore Washington International airport.  British Airways is the only carrier to fly direct from Baltimore to Europe.

I was staying at a friend’s home on the outskirts of Philadelphia on the morning of my departure. The plan was to give another friend a lift home on my way to Baltimore before dropping off my rental car and hopping on my evening departure.

That was the plan until, whilst having breakfast, I tried to check in – and found the flight had been cancelled.  The Rolls Royce 787 engine problems meant that my aircraft had been grounded.

This is the first time this had ever happened to me.  Although I’ve flown a significant amount, I had never had the bad luck of being on a cancelled flight.

From many destinations this wouldn’t be an issue – you’d simply hop on to the next available flight. Except, of course, that British Airways is the only carrier to connect Baltimore Washington International with Europe – and they only fly once daily.

Taking British Airways to small claims court

British Airways wanted to reroute me via Chicago.  I would fly to Chicago the following day and then catch a connecting flight home.

Geographically, however, I was closer to Philadelphia International Airport.  I knew they had open seats from a quick search online, so I called the BA customer service team.

Of course, flying from Philadelphia would mean dropping my rental vehicle off at a different location, and rental car companies are notorious for ratcheting up costs for unexpected eventualities. I assumed, however, that British Airways would be liable under EU261 law and the Montreal Convention.

I was successfully re-booked and headed off towards Philadelphia, where my flight was leaving a few hours earlier than my original!  It was a little chaotic but I was glad to be sitting on an aircraft taking me home. I ended up paying almost twice as much as my original reservation to drop my car off in Philadelphia instead.

Taking British Airways to small claims court

(On landing at Heathrow we were also subject to a go-around – also my first! – which meant that we had to abort our first landing attempt due to high crosswinds. There’s nothing quite like being on a Boeing 747 which is about to touch down before quickly accelerating away!)

Once home, I started filing the relevant paper work regarding my cancellation.  I was entitled to compensation thanks to EU261, since the cancellation was fewer than 14 days in advance.  I also submitted my rental car receipts, asking British Airways to cover the difference in cost between my original reservation and the actual costs incurred.

British Airways got back within the week, agreeing to my EU261 compensation. (Because I had actually taken an early flight than the one I booked, and had landed within 4 hours of my original arrival time, I was only entitled to half of the 600 compensation package for flights over 3,500km.)   On my request for the additional car hire costs incurred, however, they remained silent.

This started a lengthy back-and-forth between myself and the British Airways customer relations team.

If you look at the wording of EU261 you’ll see that Article 8(3) states that where a region is served by several airports and an airline offers a flight to a different airport:

“the operating air carrier shall bear the cost of transferring the passenger from that alternative airport either to that for which the booking was made, or to another close-by destination agreed with the passenger”

Now, in the law this is a little ambiguous since it refers only to the destination rather than departing airport.  However, it is based on a principle that if a carrier re-routes you, they need to ensure that you are not out of pocket for the costs of getting to an alternative departure airport or from an alternative arrival airport.

Furthermore, the Montreal Convention states that “The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.” It would be hard, if not impossible, to argue that an increased rental car drop off fee would not count as ‘damage occasioned’ by the cancellation of a flight.

Nonetheless, British Airways argued it was not liable, and I remained out of pocket to the tune of £282.

Taking British Airways to CEDR arbitration

If you have ever had a dispute with British Airways you will know that the next step in attempting to resolve the matter is to head to the CEDR.

As our 2017 CEDR article explains, it is a relatively simple process that requires you and the defendant to submit a statement. It is then adjudicated by the CEDR.

Though simple, it is a slow process. Once you have submitted your statement the defendant is given several weeks to submit theirs, after which you are allowed to add any additional comments. The dispute then joins the queue of disputes awaiting an adjudicator (this takes several weeks) before, finally, a decision is made.

It is, potentially, too simple. The adjudicator is unable to communicate directly with either claimant or defendant, and is therefore unable to ask for additional evidence to clarify any positions. There is also no way to appeal the adjudicators decision within the CEDR framework.

This is a problem when your case is as complex as mine.  The problem was that the original vehicle I rented did not have functioning headlights, which meant I had to swap the car free of charge mid-way through my renting period.  The car I dropped off was not the same as the one I originally picked up and it was not possible to easily tell from the final confusing receipt I was given what the additional drop-off fee was.

The adjudicator believed that the additional charge showing on my receipt was related to replacing the car mid-rental, instead of being due to the change of drop-off location.  This assumption could have been easily corrected had they been able to contact me to clarify the situation.

This was frustrating because the adjudicator had theoretically ruled in my favour but stated that as I had not suffered any extra drop-off fees I had no right to any claim on BA.  I went back to Hertz and ended up getting two written statements that unambiguously stated I was being charged a higher rate due to the drop off location.  There is no right of appeal with CEDR so the only option I had available was to go to the Small Claims Court.

Taking British Airways to the Small Claims Court

Whilst the CEDR is a simple process, going to the small claims court is an entirely different world, and slightly terrifying at that given it is an official legal process.  I may not even have proceeded had I not had a family friend who specialises in aviation law and deals with airline disruption all the time. He insisted that I had a case, and so I pushed on.

I did a quick bit of research on how the small claims court works. Despite a lot of legal jargon it is quite simple to file a claim, since it can all be done online. The online form asks for a statement, a timeline of the events, the evidence you wish to file and where you would like the hearing to take place. You also have to pay a fee upfront, which varies depending on how much you are claiming. I would have to pay £25 to file the case and another £25 if it got to hearing.  You can see the fee brackets on the gov.uk website here.

I resubmitted my statements, this time with the additional evidence I had received from Hertz, and paid the £25 court fee. Then I waited.

Taking British Airways to small claims court

British Airways was notified of my filing and a few weeks later filed their own statement, after which we again waited – for months.

Although filing a claim is fairly simple, there is very little information once the claim is being processed. I got various automated emails that required certain forms with complicated names be filed at certain times; every so often I was copied into an email from the BA legal team. In this respect, the CEDR is definitely a simpler process although I quickly realised that if I thought the CEDR was slow, law courts are in a league of their own…

Finally, however, eight months after the flight in question, my claim was accepted by the judge and I was given a hearing date in May.

I was given a final deadline in April to file my final documents and evidence.  Whilst I re-wrote and re-formatted my statements to comply with the court requirements, I got in touch with the legal team at British Airways asking if they did not want to settle the claim and save everyone a lot of trouble.  I did not hear back.

Two days before the deadline to submit my documents and pay the court hearing fee, the British Airways liaison got in touch, asking to settle the case.  They agreed to pay the full amount of my claim as well as the fees I had already paid to the Small Claims Court. After nine months of paperwork and fighting my corner I finally had my £282 back, plus the court fees I had paid.

My dispute with British Airways has taught me never to accept defeat simply because the process is long and complex.  I have also lost all my patience for dealing with the screw-ups of big companies.

Two weeks after my flight with British Airways was cancelled, I found being turned away from an easyJet flight.  I think I may be cursed now …..

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Comments

  1. Tim M says:

    I have used the small claims procedure (there is no ‘small claims court’) many times. Large corporates usually either settle in advance or don’t bother showing. Their legal fees usually exceed the amount of a small claim.

    In this case I believe Rhys had a dubious claim. BA had the responsibility to reroute him at their expense but in a manner of their choosing and to provide accommodation and meals as required. Rhys should have presented himself as planned to the original booked airport and let BA take over from there. To claim for a delay, when there was none, or costs relating to a different destination airport, which it wasn’t, has no basis in law – it is not “ambiguous”.

    Rhys was fortunate to be offered any compensation at all and benefited from the rates that lawyers charge in receiving a further settlement.

    The lesson is to allow the airline to make alternative arrangements as they have the duty of care and to go off-piste because you feel wronged.

    • Tim M says:

      Edit – “not to go off-piste”

    • Shoestring says:

      Rhys wasn’t ‘fortunate’ to be offered compo for a cancelled flight for operational reasons (with notice given >7 days) – as it was an EU airlinet flying USA—>EU, this scenario is covered by EC261 legislation and compo should be automatic. This is why he got offered the cancellation compo with no quibbles.

      He was also absolutely entitled to request a more convenient re-ticketed route – it is sound advice (if you get cancelled) to look around for an alternative route that suits you better and request this instead. BA are actually quite OK about accepting viable alternatives if you suggest them. Again, no problem with what Rhys did here (Philadelphia preferred to Chicago).

      Your only valid point is that BA do often resist paying the cost of alternative transport to a different airport. Eg if they switch you from LHR to Gatwick, they can rebuff any claim for the cost of a taxi or public transport even to the change airport, considering them both ‘London’ airports. But they pretty much always pay up if you are persistent in your claim (max £50 for a taxi per person, though). What somebody said they did recently in this situation was to turn up anyway at the first airport (of the cancelled flight). They said BA organised a taxi for them there & then to get to the 2nd airport, so no problem claiming back taxi cost afterwards, it was already covered. Obvs this would only work if the timing of the re-route flight allowed.

    • That is absolutely the wrong approach. At the first sign of trouble you make your own arrangements, because if not you can be stuck for days at peak periods. Ever been in a queue of 300 people with just one person at the front handling rebookings?

  2. It depends whether your goal is to get to your destination in a timely fashion or to claim compensation. The article is about obtaining compensation not about getting to the destination on time.

    In this case the original flight was cancelled but a re-route was offered. If the first re-route had been accepted, compensation would have been payable due to the later arrival. However in this case, the negotiated alternative resulted in arriving at the booked destination on time – therefore, according to the law, no compensation was due.

    I agree with the implication that the current laws would benefit from a re-wording to enable claims to be made for costs personally incurred as a result of travel disruption even if arriving at the booked destination on time, which are currently excluded and rely upon the goodwill and agreement of the airline to be paid.

    • Shoestring says:

      But compo *was* payable & Rhys got it without a problem (see article), even though ‘my flight was leaving a few hours earlier than my original!’. Getting there earlier doesn’t necessarily stop compo being payable, it’s just at a lower rate. The LH rules are as follows:
      [If you received less than seven days’ notice of the cancellation, you can claim compensation based on the timings of the alternative flight:
      If your new flight arrives more than four hours after your original flight, you can claim €600 – no matter what time it departs.
      If your new flight departs more than one hour before your original flight, and arrives less than four hours after it, you can claim €300.]

      Presumably Rhys got EUR300 compo. So he gave up EUR300 to save a day of hanging around. He could have chosen to stay in Baltimore, wait a day for the Chicago re-route flights, get EUR600 compo, a free night in a flash hotel and as much food and drink (not booze) as he wanted plus the cost of a couple of calls or other comms (eg hotel internet fee). But he preferred to drive to Philadelphia & get home a day early.

      Obvs his time is worth a lot more than EUR300/ day.

      • @Shoestring, I think as an honest Northerner and paid-up member of the human race, I am compelled to say that Rhys should return everything he received back to BA, with BA’s costs, if he is able.

        The whole story smacks off trying to cheat and advice on how to do it.

        This sort of behaviour only pushes up the air fares for those of us who do not claim hire car costs from X to Y in some random country for no valid reason.

        This behaviour is totally unacceptable and should not be promoted by HFP.

        Tim.

        • Russell Gowers says:

          I think you’re reading a different story to the rest of us then.

          To me, it reads like he was trying to get home as close as possible to the time BA had originally committed to getting him home, without incurring additional cost himself.

          The EU261 compensated him for the additional faff and stress. The £282 was what it cost him to get home closer to the originally committed time.

          Nowhere in there do I see a suggestion of anyone “cheating”. It just speaks to a lack of pragmatism from the airline.

        • Shoestring says:

          I don’t think Rhys did anything wrong, in terms of collecting his EC261 compo for the cancellation + the extra car rental fee. Legally correct. Morally correct.

          What he did wrong, as a student or recent ex student without an income, was not collecting EUR600 instead of EUR300, avoiding the car ride to Philadelphia, lording it up in a hotel plus the local restaurant of his choice (& paying for the booze out of his own pocket).

          • Shoestring says:

            to be fair, there was a lot of doubt as to whether people would get the Trent engine compo without fighting it hard

  3. I think Rhys should revise his title to ‘Don’t give up and BA might pay you off to go away’. It seems to me that BA paid Rhys off not because it agreed that he was right but because they did not think it was worth attending court to defend the claim. It is quite wrong to assume that his claim was valid and I can think of quite a few things that don’t sound quite right.

    One thing that does not sound quite right is that the poster seemed to think that because he was geographically closer to Philadelphia International Airport he should be able to fly from Philadelphia. The airline would have looked at the availability of flights from the closest airport to Baltimore and I am surprised they agreed to re-route via Philadelphia as it is 100 miles away from Baltimore airport! Why should the airline pay for the cost of the Rhys choosing to drive to Philadephia and for dropping off his car at that airport? He clearly didn’t get pre-approval for his plan and unsurprisingly the airport baulked at the claim.

    I am not surprised the adjudicator did not award Rhys the money he was claiming. I don’t think he should have got the money. He travelled on the day he wanted to travel and was not late, the 300Euro he would have received should have compensated him for his additional costs and he suffered no detriment. I am no fan of the airlines but I am similarly no fan for Rhys. I don’t think he had a right to the refund he got from BA. A chancer who got lucky!!!

  4. Sexy_kitten7 says:

    Wow. Congratulations! These crazy companies always want to waste our time. They are too big to care. I’ve heard stories of lawyers putting on their ties to go to court when the opponent calls to settle! I’d tell them multiply by 3 and you’ve got a deal. Unbelievable!

  5. HarryB. says:

    Well done Rhys. It’s worth being patient and persistent.
    Now I have to find where to take my case against Ryanair as they don’t subscribe to CEDR and the CAA is not helpful at all. :/

    • Shoestring says:

      MCOL
      But Ryanair are supposed to be reasonably conciliatory these days
      Id at least threaten them with mcol and get them to agree you have reached deadlock first, to show you’re serious
      Might prompt SB to take a second look

      • HarryB. says:

        They’re slightly more conciliatory compared to the past but still not good enough. I had a successful claim for EU261 in August 2017 and I still haven’t seen the payment in my account. They give me a payment reference number that HSBC doesn’t recognise, refuse to give any more evidence/details of payment and now refuse to further engage with the issue claiming that the can no longer help me. The times I had to contact them were too many that I’ve lost hope.
        What’s SB?

        • Shoestring says:

          somebody! – sorry I was on my wee tablet stuck in McD’s and I can’t be arsed to keep flicking backwards & forwards on the keyboards

          • Meanwhile I’ve just called my butler from my suite at the St Regis New York to order up some coffee 🙂

          • HarryB. says:

            Thanks Shoestring, you gave me a bit more motivation to keep chasing them! 😀
            Enjoy your time in New York Rob!

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