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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 (197)

  • Crafty says:

    Well done for being dogged and determined and getting what you were owed. I too have no patience for the machinations of big companies in relation to small claims, they too often have no concern for what is fair and just, only looking to minimise their own exposure and see what they can get away with.

    Excellent article, one of the best I have read on HFP.

  • S says:

    👍🏻

  • LewisB says:

    I had a similar situation with KLM back in 2016 (although no car rental), they were adamant that I had no right to EU261 money because I had accepted an alternative flight yet I landed over a day early because that was the only available flight and I HAD to be home for a wedding. Took me over 7 months but they eventually agreed. Generally public will give up and can’t be dealing with the hassle. Love seeing stories like this, great stuff. Well done!

  • Christian says:

    Given that BA went so far out of their way to be unpleasant, I think you should have taken them to court after all. Ultimately, you almost certainly would have won and BA would learn that at least some people will stand up to them. Perhaps then, BA would be a bit less difficult to other people in similar situations in the future. If BA almost never has to pay to send attorneys to court, they will always play this game of chicken as they did with you.

    • John says:

      Taken them to court for what? They paid him what he would have received if he won the court case, and everybody saved some time (though they would have saved more time if they just paid up initially)

    • David says:

      If you persist in going to a hearing and end up getting a similar result as you have already been offered in settlement, it looks bad for you when the judge is deciding whether to make a costs order. Success in the legal system is very much about appearing to behave reasonably, and wasting BA’s and HMCS’s time just to make a point of principle isn’t reasonable.

      Consumer litigation for big companies is all about statistics – they know that x% of claims will die before they get to issuing a claim, so BA will continue to reject claims until a hearing date is set, because that will reduce their overall liability.

      • Christian says:

        I was rather hoping that the judge would see that BA waited until the last moment after months of disputing an exceedingly valid cost, and made sure that BA understood that going out of their way to avoid legitimate claims would be frowned upon in the future. In short, justice.

        • xcalx says:

          Totally agree.

          • Crafty says:

            Yes, but unfortunately in reality David is right. It is your duty to act reasonably, which includes not wasting the court’s time (taxpayers’ money) to achieve the same result that had already been offered.

        • Lady London says:

          A company I sued and won against was looked on very disfavourably by the judge when I explained the efforts I had made to settle with them. The law was very clear they were in the wrong but the company went for the ‘we’re bigger than you so you will give up” stance and had refused to discuss. The judge fixed them with a beady eye and managed to come up with a couple of extra point I hadn’t claimed for that got me a bit more.

          The really bad thing is that as a litigant in person (I couldn’t afford a lawyer) I hadn’t known I should also claim under another bit of legislation as well that was worth far more. So a Pyrrhic victory. The judge definitely did what he could to charge them for not being reasonable and settling when the bit of law I did claim on put them so clearly in the wrong though.

      • Doug M says:

        Does the reasonable argument not apply to both sides. Would it be possible to establish how many times BA settle 3 to 5 days before the hearing?

        • RussellH says:

          A solicitor colleague tells me that it is normal for the big guy to offer to settle out of court at the last minute. Their lawyers know that the majority of people are intimidated by the idea of going to court, so they hope and expect that many people will just not take it that far. Only once they realise that someone will stick it out to the end might they actually offer to settle.
          But not at all unsusual for the other party just not to turn up and lose by default, though I would think that judges might take a dim view of that when it happens routinely.

          • Shoestring says:

            You only have to follow the compo thread over on FT to see that BA’s strategy here is: with non black & white cases, refuse compo, refuse compo again if victim comes back, carry on refusing unless victim threatens CEDR or MCOL, in which case there is sometimes another look at the case. (To be scrupulously fair to BA, it seems that when a flight has already paid compo for (say) a delay, they are quick to settle future complaints of the same nature; they are also fairly quick to offer compo in black & white cases where the victim is clearly deserving of compo.) And with the CEDR / MCOL cases, often just opening the cases is enough for BA to see sense and pay up before it gets to the case being heard/ investigated.

            Many times, you might just as well get BA to quickly agree to deadlock and proceed to MCOL.

  • Tony says:

    Whilst the approach is to be applauded, my concern here is that you seem to have invested a significant amount of time in getting back the money, so i’d have been expecting some kind of settlement for that, too.

    • Andrew M says:

      Agreed.

    • Waribai says:

      Yes, in a nutshell this is commendable but BA are relying on the fact that most people would weigh this up as a time vs money scenario
      For a lot of people after just 3 hours attending to this they would be out of pocket and therefore would not bother seeing it to the end.

    • John says:

      That’s not how small claims works and if anything, the CEDR should pay Rhys some compo for getting it wrong / not having a robust procedure.

    • Rhys says:

      Unfortunately I’m not sure how amenable the small claims court would have been…as a poster said above, there is a big emphasis on being “reasonable” and not wasting court time etc etc

      In this case, being a time-rich but cash-poor student, getting the money back was more important to me.

      • Crafty says:

        You may have been able to get a “preparation time” order, especially as BA behaved unreasonably, but obviously that’s now a moot point.

        And you wouldn’t have got it if you had not asked for it, which you didnt.

    • Lady London says:

      You can only claim for your time if it’s clear you would otherwise have been paid for the time you spent

  • Billy says:

    Very good article but I agree with what others have said. I would have gone all the way and seen it out in court, after all you had already invested all that time.

    Fair play to you though.

    • The Savage Squirrel says:

      Er no. As above – if you have been offered exactly what you asked for in settlement it would be monumentally stupid to decline this and go to court – where you are never 100% certain that things will go your way. Additionally the judge will look unfavourably on you wasting their time – and in extreme cases have even been known to throw costs onto “point-proving” litigants who won the case but chose not to settle earlier for the same result when that option was open to them.

  • Shoestring says:

    There’s no need to go to CEDR before small claims. In fact, it is advisable in many cases to go straight to small claims because it will save you time and (as in the article above) BA nearly always backs down where it is ‘obvious’ that they owe you compo for something.

    • Rhys says:

      But the small claims process makes it clear that the court is more sympathetic if other avenues of mediation have been explored…

      • Genghis says:

        Ie that you’ve tried to resolve it before MCOL. You did. No need to use CEDR.

        • meta says:

          +1 Reasonable way to do it would be to send a letter before action to BA after initial correspondance with CS and give them 21 days to respond. If not satisfied (and sometimes they don’t even respond in time!), just start MCOL. It’s a very simple procedure and not as complicated. There are also timeframes when they have to respond, etc. I think a much better than CEDR.

      • Howard says:

        Rhys

        Well done on this but you have the option with small
        claims for mediation.

        One other option you could have tried is a “letter
        before action”.

        I have a claim in for a cancelled flight last week. I will give them two weeks to respond and if no reply I will send a letter before action detailing my claim.

        • ken says:

          They took 8 months to settle after MCOL process was started – you reckon they would have settled with a letter before action.

          The only thing else Rhys should have claimed was interest (currently 8%). Always, always claim this.
          He should have also claimed reasonable expenses, time, postage etc.
          If you are a student, it would be reasonable to claim at £19 per hour.

          The idea proposed by others that you should refuse any full settlement to go to court is simply blowhard idiocy.
          Judiciary look exceeding dimly on people wasting the courts time to try and make a point.

          • The Savage Squirrel says:

            “The idea proposed by others that you should refuse any full settlement to go to court is simply blowhard idiocy.
            Judiciary look exceeding dimly on people wasting the courts time to try and make a point.”

            +1 to this! Some seriously stupid advice in this thread.

  • TripRep says:

    Following my terrible experience with shoddy BA customer service and CEDR bureaucratic nonsense after my CW downgrade in 2017….

    After you force BA to a deadlock position, (they seem to have to give you the same pathetic denial 3 times before they do this) I’d be tempted to skip CEDR and immediately send BA a letter of intent for legal action with 16 days notice and stick to your guns thereafter, never give up, never surrender. Give them both barrels