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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)

  • Peter says:

    Interesting story: I had an incident where Ryanair landed to an airport about 3 hours away from destination due to crosswinds at original destination airport. They have scheduled for buses to take us to original destination airport but we arrived at 1am instead of 10pm. I have evidence gathered online showing that wind gusts started to calm down even before plane departed Stansted Airport. I spoke to Ryanair directly, I went to ADP but no luck… They are adamant that Ryanair had to divert due to crosswinds at destination airport. Do you think it’s worth going to small claims court or it’s going to be waste of time and money?

    • Shoestring says:

      No chance whatsoever – each pilot can make individual decisions about weather/ safety factors

    • Anna says:

      Same happened to us, Ryanair flight had to divert from Lanzarote to Fuerteventura due to high winds. We eventually got to our villa 10 hours after our original arrival time but weren’t eligible for compensation. Ryanair refused to even provide food or drinking water but we’d come prepared for LCC conditions with plenty of provisions so I couldn’t be bothered making an issue of this!

      • Shoestring says:

        Duty of care – you can buy whatever food & drink (not booze) is reasonable for the time/ delay involved, keep the receipts and claim it back later. Definitely no need to accept a £5 voucher when your delay is (say) over 3 hours. You can go to the airport restaurants, for example.

        • Anna says:

          Shoestring – we were on coaches and a ferry most of the time, there wasn’t even an option to buy F & B! I’ve never been so glad that I refuse to pay for LCC offerings and also have a faddy eater so unless in CW/CE (and sometimes even then) we tend to take on board piles of sandwiches, snacks and drinks wherever we go!

    • Mark says:

      Peter,

      Not sure if you’re a pilot but you can’t ascertain if if was possible to land based on forecasts or even what the wind was like when you left Stansted. All that matters is what ATC are reporting the wind to be when they give it to you when you make an approach. It is either within limits or out of limits. Different aircraft have different limits and so do individual companies. Crosswind limits also reduce from the maximum allowed if the runway is contaminated, narrower than standard width, company policy at a specific airport etc. In other words unless you know all the details it is hard to draw a conclusion.

      I’m no Ryanair apologist but what I do know is that if the pilots could have landed at the destination then they certainly would have done as the hassle involved in diverting and sorting out the mess that invariably follows is significant.

    • Chrisasaurus says:

      Are you suggesting they didn’t have to divert but chose to anyway for some other reason?

      Considering how inconvenient having a plane and full crew out of position (and corresponding crew to fly the plane onwards) must be that sounds a bit far fetched…

  • MKB says:

    I had a rejection experience with the Financial Ombudsman last year. I learnt that the “ombudsman” who adjudicates your case is simply a solicitor who has opted to do some evening/weekend homework. They may have very little experience; you have no interaction with them, and no redress other than, like Rhys, to resort to the courts.

    In my case, I was fighting a Section 75 claim against an American Express credit card purchase for flights on Etihad booked through American Airlines’ website. American Express argued that American Airlines was not the “supplier” under the Consumer Credit Act and was acting as an agent. I argued that the relationship between American and Etihad was that of contractor/sub-contractor since the tickets were issued on 001 ticket stock, and, to be able to do this, American must hold contractual arrangements with Etihad.

    The rejection from the adjudicator made clear that they had not understood the significance of ticket-issuing rights within the airline industry. I still don’t know whether my argument has legal merit, but I do know that it wasn’t properly considered during the ombudsman process.

    It was indicated that rejection by the ombudsman could make a subsequent court case challenging, as that rejection would be used as evidence against the case, so I decided not to pursue this further. (I was also hampered by the fact that when I wrote to registered UK addresses for American Airlines — one of which was actually a British Airways office — the Post Office returned mail as undelivered.)

    • Paul says:

      The ombudsman has a two tier process first the case is looked at by an investigator or adjudicator, if your not happy it can then be referred to an ombudsman.

      Section 75 wouldn’t be looked at by a solicitor etc it would’ve been dealt with by a specialist in S75 cases.

      • MKB says:

        Yes, I was referring to the second stage.

        The person who did the preliminary stage was next to useless. She struggled with basic comprehension, and her English was littered with grammar and spelling mistakes.

  • NFH says:

    It seems that some of you need legal advice. I recommend Which Legal Service, which charges a fixed £9 monthly fee for unlimited advice. They have specialist aviation solicitors, one of whom is an adjudicator for CEDR.

  • nerock says:

    I think there is an EU option also which is called the European Small Claims procedure, not sure if anyone has experience with that? Presumably this is what you could use if it’s a European (but not UK) airline?

    I had a case with Wizz Air a few years back, our flight after our ski trip was cancelled from Ljubljana due to heavy snow. The next flight from Ljubljana would have been in 2 days time best case, I couldn’t have afforded that so I decided to get it rebooked from Budapest which meant a 5 hour drive and a 300 euro oneway fee for my rental car, plus fuel and motorway fees. I knew I have no chance for EU261 since the cancellation was clearly weather related. However I claimed for the oneway related costs which Wizz Air initially rejected. At the end they offered 200 euros as a goodwill credit. I couldn’t be bothered to take the case further to court so I accepted the 200 euros and accepted to be left out of pocket by about another 200 euros..

  • Roger Jones says:

    Oh the inconvenience, was the colour of the sky not to your liking either.

  • Martin says:

    We had a similar issue with BA sending our car seat onto a different holiday destination to us so I had to rent one from the car rental..
    They said it wasn’t an immediate first need item so rejected the £84 claim.
    I ended up taking them to the small claims court as we were in a country that had a legal requirement for children to be in car seats.
    10 months later I got my money..

  • Jonathan says:

    Does anyone know what is the cost exposure if you lose a small claims case. In my case BA staff at the gate told us information about the delay which was totally denied when the CEDR claim was put in, to me it looked like the adjudicator had no clue or power of discovery

    Any advice

    • Alex M says:

      It depends – if you claim less than £300 and file online then it is £25 to submit claim and then another £25 if it goes all the way to the court (this is according to other people’s comments – I never went that far), so £50 minimum.

    • Charlieface says:

      AFAIK only your own costs unless it’s deemed a completely frivolous claim.

      • Lady London says:

        That;s the point of Small Claims Court – it protects the sue-er against having to pay the costs of the sue-ee – even if the su-er loses.

        As Charlieface says that’s the default rule for small claims court. In fact the original idea of Small Claims Court was that you could sue someone and not need a solicitor if it was a smallish amount. However defendants such as companies, then started bringing legal advisers and so the su-er is more or less forced to try to get some legal help if they can find a way to finance it or get it another way. It’s not quite a level playing field although it was intended to be.

        If your case goes to a higher court due to its nature not being able to be tried in small claims court or if the amount is too high or if the other side appeals the decision and it goes to the High Court, then you do pretty much need legal support. It’s not impossible to be a lititgant in person (i.e. no lawyer) in court, it’s just not that easy unless you really know what you’re doing. Despite the efforts of judges who if the sue-er is not vexatious can apparently be quite kind to litigants in person where they’re allowed to be.

        And yes, technically no such thing as small claims court that’s just shorthand for “the small claims procedure of the… Court” (I forget the rest!)

  • Shoestring says:

    Have a look at EC 261/ 2004 as well!