Reply To: Delhi flight cancelled

[JDB]

@lhar – you appear to be something of a 261 purist, reading the twenty year old texts literally without taking into account the 70+ binding superior court judgments and practice observed from many lower court cases/ADR adjudications that have changed practice over time. The precedents, while binding, are all still only a framework, each caveated that local courts must apply them according to the specific facts. It’s no good applying generalities based on the texts.

In the instant case, there are two particular considerations – temporality and “availability”, neither of which I believe you have properly taken into account.

If BA had cancelled the 10.05am flight the day before and said you need to get to the airport 8½ hours earlier or wait until 01.35am the next day, the considerations are different to being given nine months notice. There’s no temporality in the words of Article 8 but it’s not difficult to interpret the intent or purpose of the statute nor the difference of impact on the passenger. It does get taken into account and airlines win cases on these grounds. BA are now regularly applying this to longer notice downgrades as well.

The “availability” reference simply doesn’t mean that BA must pay for the last seat on any flight and the reality is exactly as others state – except in the case of disruption when there are specific arrangements in place, airlines will not accept ‘refugees’ except by agreement. This is also why it’s not totally correct to say that Avios bookings are identical to cash ones for 261 purposes as other airlines won’t make space available to them without prior agreement, again save for disruption.

If you, as a passenger, decide to self-reroute and litigate to get reimbursed, the burden of proof will be reversed – it’s on you to prove (on the balance of probabilities) that the cost you incurred was “necessary, appropriate and reasonable”. The court will then decide, on the specific facts of the case, whether you met the three part test.

I’m often accused on HfP of being corporate biased, but unless one actually considers how an airline might challenge your case before acting, you place yourself at unnecessary risk. The other risk is that what you think is unreasonable might feel very different to an impartial third party.