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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)

  • NFH says:

    Thank you for this informative article. I have likewise found that arbitration services, in my case Aviation ADR, neglect to read the evidence correctly and consequently reject the complaint without clarifying the evidence with the complainant. In court, a judge would clarify the evidence with the claimant, but arbitration services don’t bother to do so. I have a case with Wizz that suffered this same incompetence, for which I will soon issue a County Court claim.

    I also have a much larger and more complex complaint against British Airways for similar issues on three return bookings to the same destination for which I soon issue a County Court claim. I’m not going to wast time with CEDR, given my past experience. In any case, I am an experienced litigant-in-person and I am very confident going to court. It’s useful to know that British Airways suddenly settle at a late stage.

    • Polly says:

      We have lots of examples of late settlements in this forum, and indeed elsewhere.
      Beats me why BA would push it to the very end. Just shows, never give up. But it does take energy to pursue these cases, and you need a hard neck to fight BA.

      • Alex M says:

        I mentioned on this forum several times before that to pursue these cases takes very little energy, less than 60 minutes of your time and you don’t need to fight anyone at all – you just send in total 3-4 emails every 2-4 weeks and in the end, if you don’t like their response, – file MCOL. Few weeks later you get email asking for your bank details.

      • MikeL says:

        Exactly Polly, never give up as they expect you to. I’m involved with Sleazyjet again. One claim last year (full tech issue) and they argued against it and I had to revert to CEDR. This year it was a 5 hr delay after a knock on effect issue. They have sent me a deadlock / final position email despite sending them case law in which they lost their last similar claim within the Scottish courts, so back to CEDR.

      • L says:

        It’s the equivalent of settling on the steps leading up to the court doors on court day. Historically a frequent defence practice.

  • Joseph says:

    Interesting read.

    This weekend my BA flight out of LHR was cancelled with a few hours warning. I was automatically rebooked to the next day, but as I live 3hrs from LHR I was already on my way to the airport. After a long time on hold I successfully changed to an *earlier* flight, and just about made it in time – by using short stay parking at a cost of £99 and abandoning my pre-booked nonrefundable long stay parking (£50).
    Therefore the BA cancellation cost me an extra £99.

    • Shoestring says:

      Most of the usual parking cos will let you add on extra days to pre-booked parking at reasonable cost vs buying new parking at horrendous cost because you are stuck ie effectively buying parking starting from *today*. It’s one of the reasons I like DriveFly – they let you add on a day for £10 a day. Obvs works out a lot cheaper.

      • Joseph says:

        To clarify, I did not need an extra day or date/time change. But did not have enough time to use the long stay parking and shuttle bus. By using the short stay multi-storey parking I made it to security within 5 mins of the deadline time given on my ticket. In my experience the long stay takes up to 30 mins extra. Both were official Heathrow car parks, but the agent was unable to cancel/amend the original so close to departure.

      • Joseph says:

        My first avenue of redress will be to Heathrow parking, who indicated they may well refund the unused long stay booking if I write to them. This only leaves me £49 out of pocket, and I will probably swallow that and save myself further hassle trying to communicate with BA.

      • Joseph says:

        Bemused side Note: The “earlier” flight then sat on the tarmac for over 1hr and we took off within 5 mins of the departure time of the original “cancelled” flight !

    • Doug M says:

      I went to the wrong car park at T5 once maybe 3 years ago. I think I went long stay having booked business. On exit the office sorted it for me without charge. I know I went to the cheaper option but they could have been awkward and just charged me for the one I used. All my LHR parking experiences have been good, changes and screw ups by me resolved without unfair charges.

  • PaulC says:

    I could be way off with this so apologies if I am but shouldn’t a decent travel insurance policy cover some of these costs?

    • Shoestring says:

      Commonly, not consequential costs when you miss flights – it all depends on the policy, though. However, S75 *does* allow you to claim for consequential losses, so that’s another good reason to pay for flights on a credit card.

    • Rob says:

      All insurance policies have a clause saying that the insurance is not valid until you have exhausted all other possible options for redress.

      Can you begin to imagine what chaos would ensue if this was not the case?

      • David says:

        Equally BA often directs you to your travel insurance, rather than accepting responsibility – e.g. the Great IT F-up of 2017.

    • Frenske says:

      Not sure most travel insurances would be relevant since the stay is longer than 3 months.

      • Callum says:

        There are countless travel insurance policies that last longer than 3 months.

    • NFH says:

      Travel insurance is for where the errant party cannot be made to pay. In this case and most cases, the liable party, usually the airline, can be made to pay. Why should insurance underwriters, and consequently policy holders through increased premiums, fund the errors of airlines? These claims should be funded from reduced dividends paid to airlines’ shareholders.

  • Melvin says:

    I have been wanting to pursue Vueling after being unsuccessful with a CAA claim. As my case is not clear cut I, like Rhys, am nervous of the whole process, particularly because an online claim can only be made against a person or organisation with an address in England or Wales.

    Does anyone know whether I can use a UK address for Vueling to make my claim simpler and/or an aviation lawyer who could provide further advice first?

  • Lady London says:

    Nice article Rhys. What happened with easyj then?

  • Mikeact says:

    Small Claims Court? Dead easy, with three successes.
    1 National Express coaches. A few years back, driver left Hilton services 10 minutes earlier that he said he would…left stranded with luggage and coat on board. Had to make alternative arrangements to get down to London.
    Result..Win
    2 A ‘Recommended ‘ builder, trading with false accreditations.
    Result..Win
    3 A local garage, supplied and fitted second hand parts to my wife’s car, insisting they were new.
    Result..Win
    More to the point, no arguments, they all paid up as winning is one thing, getting payment can be another.

  • Callum says:

    I’m pretty surprised so many people agree with that interpretation of the law – it seems pretty ridiculous to me.

    Not only does Rhys point out that it does not actually apply to his situation, I feel like it wouldn’t apply had it been the destination either. BA didn’t choose to reroute him from Philadelphia, he asked for it, seemingly without even mentioning it would incur him extra costs. Where is the line? If my LA flight is cancelled and I fancy a roadtrip, can I ask for a San Francisco flight instead and then just drive up there and send BA a rental car bill?

  • Michael says:

    O/T but insurance related.

    I’m looking to rent a Hertz Dream collection car for an upcoming trip in the US. I can see through the reservation that LDW isn’t included but have supplementary coverage online as Plat Amex only covers £50k.

    What I’m struggling to work out is if there’s any additional cover i.e. car insurance (third party or comprehensive) that’s required. For example Silvercar in the US require personal insurance coverage to rent their Audi fleet.

    Normally, whenever I rent with Hertz I pretty much pick up the car and go, with LDW on my Amex as I’ve always assumed third party is in the rental agreement but completely unsure if it’s different with the Dream collection.

    Any insight would be appreciated.