Reply To: HND to LHR BA0006 26th Nov 13:15 cancelled

[AJA]

@JDB I appreciate that you consider my last comment on this as seriously unhelpful. However as per those guidelines you say we should all have detailed knowledge of (a point I dispute) it says under 4.1. Right to information that

“In addition, whenever an air carrier gives partial, misleading or wrong information to passengers on their rights, either individually or on a general basis through media advertisements or publications on its website, this should be considered as an infringement of the Regulation in accordance with Article 15(2) read in conjunction with recital 20 and may also constitute an unfair or misleading commercial business-to-consumer practice under Directive 2005/29/EC of the European Parliament and of the Council (32).”

Therefore I suggest that if BA did not offer to book hotel accomodation for free for @Carousel and did not inform them that there was a cost limit if they booked hotel accomodation themselves then that is BA’s fault and not the customer’s.

Indeed if BA did not even make reference to Article 9 and inform the passenger of their right to care then that “this should be considered as an infringement of the Regulation in accordance with Article 15(2)”

Also article 15.2 states that

“2. If, nevertheless, such a derogation or restrictive clause is applied in respect of a passenger, or if the passenger is not correctly informed of his rights and for that reason has accepted compensation which is inferior to that provided for in this Regulation, the passenger shall still be entitled to take the necessary proceedings before the competent courts or bodies in to obtain additional compensation.”

Therefore while it is generally accepted that airlines usually pay between £200 and £300 per passenger per night for accomodation that does not mean the airlines can legitimately only refund £300 when the passenger incurred £2,000 through the failure of the airline to correctly inform them of their rights.

The reference to paragraph 67 of the McDonagh case states that

“However, an air passenger may only obtain, by way of compensation for the failure of the air carrier to comply with its obligation referred to in Articles 5(1)(b) and 9 of Regulation No 261/2004 to provide care, reimbursement of the amounts which, in the light of the specific circumstances of each case, proved necessary, appropriate and reasonable to make up for the shortcomings of the air carrier in the provision of care to that passenger, a matter which is for the national court to assess.”

That does not mean that the airline is limited to pay out £300. Do you have any evidence to suggest that £300 is actually the legally accepted as the upper limit?

I’d suggest that if you were already staying in a hotel it would be appropriate to extend the stay there. It clearly was necessary to stay somewhere. The only issue is whether it was reasonable to spend £1000 per night for 2 passengers.

I’d also argue that paragraph 4.3.2 of the interpretive guidelines specifically states that “This means that passengers should not be left to make arrangements themselves, e.g. finding and paying for accommodation or food. Instead, operating air carriers are obliged to actively offer care.”

This means that BA cannot rely on the passenger to organise their own accommodation at a price point acceptable to BA. If BA did not actively offer care they should be obliged to refund the actual expenses incurred because of BA’s flight cancellation.

With regard to the right to re-routing those interpretive guidelines state under paragraph 4.2 that

“As a general principle, when the passenger is informed about the cancellation of the flight and is correctly informed on the available
choices, the choice offered to passengers under Article 8(1) is to be made once. In such cases, as soon as the passenger has chosen one of the three options under Article 8(1)(a), (b) or (c), the air carrier no longer has any obligation linked to the other two options.”

I think a key phrase in that paragraph is “and is correctly informed on the available choices”. I’d argue that does not mean simply rebooking a passenger on a flight in economy via Chicago. Nor does it mean that offering the passenger a flight three days later on their own metal is sufficient. The actual text on flying later is “(iii) re-routing at a later date at the passenger’s convenience under comparable transport conditions, subject to availability of seats”

I’d argue that a flight the next day on a direct flight on JAL in business class would have been more to the “passenger’s convenience” than one three days later. I’d also argue that if BA did not inform the passenger of that option that fails the interpretive guideline that the passenger was “correctly informed on the available choices”.

I’d further argue that it ahould make no difference to BA which airline the passenger is rerouted on since BA and JAL have a revenue sharing agreement on the Japan-UK route. Therefore the logical thing to do is to reroute the passenger(s) on the next available flight in the same cabin as originally booked and not one three days later.