A loss at CEDR

[1958]

I have recently received the disappointing news that I have lost a CEDR dispute with BA.
In this case, I had two Avios J flights to Sydney: originally booked in December 2020 for travel in April 2021.
BA cancelled the flights shortly after booking – so I moved the flights to December 2021.
In August 2021, BA cancelled the December 2021 flight, so I tried to move to December 2022. (BA did not operate any flights to Sydney between April 2020 and March 2022).
BA refused, so I went to CEDR, basing my argument on my rights under Article 8 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 (“Regulation 261”) as incorporated into domestic law by the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019 (which entitles passengers to rebook their tickets at their convenience at a later date.)

The adjudicator sided with BA, based on:
a. the company refers me to section 3(b)(1) of its General Conditions of Carriage which states that:
“Unless it says differently on the ticket, in these conditions of carriage, or in any tariffs which apply, a ticket is valid for travel for:
• one year from the date it is issued or
• one year from the date you first travelled using the ticket, as long as your first flight took place within a year of the ticket being issued.”
b. In view of the above, under the company’s terms and conditions I accept that the customers were given the correct information about the expiry of their tickets and the need to rebook for travel no later than December 2021; therefore, I do not find that the company has breached its contractual obligations towards the passenger in this regard.
c. With regard to Article 8 of the APR Regulations, I accept that under Article 8 passengers are entitled to “re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats”. However, on balance, I accept the company’s argument that it would not be reasonable to find that Article 8 provides a right for customers whose flights have been cancelled to rebook at any date in the future without a time limit, and, instead, in line with the principle of reasonableness that underlies the interpretation of the statutory provisions, and considering the purpose of the APR Regulations, I find that Article 8 entitles the customer to rebook within a reasonable timeframe.
d. In this case, I find that the flights requested by the customers, departing approximately two years after the date of the initial booking, would not be considered to be within a reasonable timeframe under Article 8.

– So I would welcome everyone’s view on this. I feel let down by the CEDR, but I am not sure of (1) what I did wrong; and (2) what I should do now.
Thanks in advance.

[NorthernLass]

I think @AmyC had a similar outcome with CEDR – have you looked at the other threads on here relating to BA/CEDR/ECUK261 etc?

IMO CEDR is putting BA’s Ts and Cs above consumer legislation. As I understand it, you can’t appeal, but you CAN complain about the way in which CEDR has handled the case, which is what I think Amy C has done.

[Lula]

Very disappointing. Am about to go to CEDR myself requesting booking a year ahead of original departure.

I agree with @NorthernLass that the adjudicator has given too much weight to the conditions of carriage, especially in light of Article 15, which expressly excludes the limitation of passengers rights via conditions of carriage.

I also believe there’s a question of reasonableness/fairness when it comes to the potentially very different time frames for booking that two passengers booked on the same flight might have. For example 2 people who booked on the same day (let’s say T-355), one of whom them upgraded a leg much later and had the ticket reissued, might have vastly different periods during which to rebook. This must surely be against the spirit of the regulations, which, the courts have repeatedly stated, is to offer a high degree of protection to passengers.

[Rhys]

I lost CEDR too. Then I took them to the Small Claims Court and they settled. https://www.headforpoints.com/2019/06/10/how-to-sue-british-airways/

[JDB]

NorthernLass wrote:

I think @AmyC had a similar outcome with CEDR – have you looked at the other threads on here relating to BA/CEDR/ECUK261 etc?

IMO CEDR is putting BA’s Ts and Cs above consumer legislation. As I understand it, you can’t appeal, but you CAN complain about the way in which CEDR has handled the case, which is what I think Amy C has done.

This is why I am concerned that some are rather gung-ho about MCOL/CEDR and giving false hope. The whole issue is much more nuanced. The UK/EC261 legislation doesn’t exactly override the T&Cs as some have said. Although in principle legislation will ‘outrank’ the T&Cs, it doesn’t ‘trump’ them as some have suggested. The interpretation of ‘at the passenger’s convenience’ is unfortunately very subjective, so constructing/articulating a good case for the desired ‘convenience’ a long time ahead is critical to persuade someone to order BA to override its terms. Each case is different and will be decided on its specific facts and context and is inevitably influenced by the presentation thereof. The passenger is further disadvantaged by BA’s experience in fighting these cases.

[Amy C]

Wow this looks like a copy and paste of the judgment in my case. Wonder if it was the same adjudicator. I know how you feel, I’m sorry if went the same way for you too. Maddening.

[meta]

@JDB ECJ has ruled on passenger’s convenience way before Brexit. Will dig up the exact ruling. It means just that. Your choice, any time in the future. UK courts have ruled on it numerous times as well.

[NorthernLass]

CEDR is an arbitration service and its staff are not lawyers. As Rhys has shown, its judgements can be flawed and should not be considered to be the end of the road.

That said, I had a seamless experience with them 3 years ago when BA refused to pay delay compensation so it does seem to be a case of YMMV (literally!)

[memesweeper]

Sorry to hear things went against you. Critically, it seems to me, this is where you’ve fallen down

However, on balance, I accept the company’s argument that it would not be reasonable to find that Article 8 provides a right for customers whose flights have been cancelled to rebook at any date in the future without a time limit, and, instead, in line with the principle of reasonableness that underlies the interpretation of the statutory provisions, and considering the purpose of the APR Regulations, I find that Article 8 entitles the customer to rebook within a reasonable timeframe.

I’m afraid I’d take the straightforward view the adjudicator is wrong in law on this point. There are legal terms which are subject to reasonableness tests, and EC261 is not AFAIK one of them, and without conceding that point, under the circumstances of a pandemic and global mass flight cancellations, I don’t think a two year delay is unreasonable either.

I think you’d win on a well presented case to MCOL, and the case law seems to me to be on your side. IANAL.

Having said that I lost an adjudication on a compensation point against EasyJet and delays to an incoming flight which made my flight late. I have not been bothered to take it to MCOL. You may decide this isn’t worth fighting. MCOL is more work that CEDR.

• This reply was modified 54 years, 11 months ago by .

[JDB]

meta wrote:

@JDB ECJ has ruled on passenger’s convenience way before Brexit. Will dig up the exact ruling. It means just that. Your choice, any time in the future. UK courts have ruled on it numerous times as well.

The error here is that there is no ‘one size fits all’ judgment; that is the whole issue. BA is winning many cases at MCOL and CEDR and settling or losing quite a few as well. It all depends on the precise facts and context of each case and to an extent how compellingly they are presented. ‘Convenience’ means different things to different passengers and can equally be interpreted differently by different judges or arbitrators.

[JDB]

@memesweeper the test is effectively one of reasonableness because “at the passenger’s convenience” is subject to interpretation and on the balance of probabilities. It unfortunately just isn’t black and white. The difficulty with the argument about two years being reasonable is that although obviously travel in particular to Australia was closed, the cancellations were really outside the airline’s control.

Also, most readers understand the all the ins and outs of a re-routing vs refunding and re-booking Avios flights but I think they may escape a judge or arbitrator unless it is spelt out why a refund is so unattractive and also to those independent parties the two year open ticket might look a bit rich.

[memesweeper]

JDB wrote:

@memesweeper the test is effectively one of reasonableness because “at the passenger’s convenience” is subject to interpretation and on the balance of probabilities. It unfortunately just isn’t black and white. The difficulty with the argument about two years being reasonable is that although obviously travel in particular to Australia was closed, the cancellations were really outside the airline’s control.

I’d agree that “at the passenger’s convenience” is subject to interpretation. However, the adjudicator’s view that was a long delay was, in effect, the same as an indefinite delay, and an indefinite delay was not what was requested as a re-route. I think the adjudicator is wrong. It was simply a re-route request for a period after travel reopened. In practice, a reasonable period, IMHO.

The reason for multiple cancellations because Australia was closed to almost all inbound travel is irrelevant. Some parts of EC261 were suspended during the pandemic, lots of other laws in the UK were radically modified (and post Brexit this could have been modified or suspended) and no change was made by parliament to the rerouting provisions.

JDB wrote:

Also, most readers understand the all the ins and outs of a re-routing vs refunding and re-booking Avios flights but I think they may escape a judge or arbitrator unless it is spelt out why a refund is so unattractive and also to those independent parties the two year open ticket might look a bit rich.

Absolutely no harm in pointing out the substantial loss the complainant might suffer if they get a refund and have to rebook at commercial rates.

[points_worrier]

Ah no. Sorry to hear this.

I have a very similar case submitted to CEDR at the moment.

I did touch upon the ‘reasonableness’ of timing of replacement flights. I did say that for a directive that is designed to a give ‘high level of protection for passengers’ it must surely be a reasonable interpretation of ‘at the passengers convenience’ to include flights that were available for sale to new passengers on the date they told you your flight was cancelled. My ‘convenience’ does not change based on when I originally booked the flight, and must be orientated around the cancellation timing.

I am now a bit worried given the spate of refusals on validity grounds, but we shall wait and see.

[NorthernLass]

I can’t see any circumstances under which a court would give a company’s terms and conditions precedent over the law, as this would completely undermine the justice system. However, this is probably the first time that multiple flights have been cancelled in a situation where travel genuinely can’t be undertaken for a year or more after the original date, so it would be interesting to see how judges interpret the legislation in the light of a 2-year travel hiatus due to the pandemic. I very much hope that BA isn’t given the green light to just give out refunds for cancellations as they don’t need any more encouragement to trample all over passengers’ rights!

[JDB]

NorthernLass wrote:

I can’t see any circumstances under which a court would give a company’s terms and conditions precedent over the law, as this would completely undermine the justice system. However, this is probably the first time that multiple flights have been cancelled in a situation where travel genuinely can’t be undertaken for a year or more after the original date, so it would be interesting to see how judges interpret the legislation in the light of a 2-year travel hiatus due to the pandemic. I very much hope that BA isn’t given the green light to just give out refunds for cancellations as they don’t need any more encouragement to trample all over passengers’ rights!

It isn’t a question of a court/arbitration giving precedent to the T&Cs over the law or vice versa. Their role is to balance the two, so they first look at the T&Cs and then see if, in applying those T&Cs (or sometimes offering to go beyond or outside them) BA has also, in the opinion of the court/arbitrator, complied with UK261. The facts and context of each case are different so sometimes, if properly argued, two (or even more years) extension of the ticket may be considered reasonable and in other circumstances, going beyond a year might be deemed unreasonable. I think we have all seen some cases on here that appear strong and others that are very flaky and fall apart as soon as you ask any question.

[meta]

You are forgetting that Article 15 of the EC261 strictly says that the T&C are void and null when it comes to passenger’s rights.

Putting this again here:

1. Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.

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 order to obtain additional compensation.

I had dozen of cases both my own and from friends and family at MCOL over the last two years and never lost on this point.

The fact is that ticket validity issue is in BA’s T&C. This will be disregarded entirely in court because of article 15 of EC261 and UK equivalent. Second, you are also forgetting the second part of the sentence – at passenger’s convenience, subject to availability of seats. These two parts should be regarded as a whole, so if there are seats available on the desired flight, they are yours.

The problem we are seeing here is that people go to MCOL or CEDR without thorough thinking and use the forum ideas to construct their cases indiscriminately.

• This reply was modified 54 years, 11 months ago by .

[JDB]

@meta I haven’t forgotten Article 15; however, your interpretation that it renders the T&Cs “void and null” is not what the Article says and is simply wrong. This is why giving blanket advice to people without being in possession of all the facts of their case is so dangerous. For the passenger above, it would cost them over £800+ in court application and hearing fees to have a second go at this via MCOL. On what grounds would you suggest that is a good investment of money and time?

Yesterday you said were going to provide some precedents that would be applicable in an English court and effectively make these cases a certainty??

[JDB]

@meta it’s a bit disappointing that with your dozens of wins (presumably in cases very similar to this poster) you haven’t shared the magic formula!

[meta]

The magic formula is simple – base your case on facts and law only plus provide a clear timeline of events. I’ve been saying this for ages and on the old daily chat thread I even posted a breakdown of all the steps. I can’t help people here write it. It would involve too much time (am spending too much posting here anyway). If anyone wants to post here their submissions before sending them, I am happy to comment and guide.

[meta]

JDB wrote:

@meta I haven’t forgotten Article 15; however, your interpretation that it renders the T&Cs “void and null” is not what the Article says and is simply wrong. This is why giving blanket advice to people without being in possession of all the facts of their case is so dangerous. For the passenger above, it would cost them over £800+ in court application and hearing fees to have a second go at this via MCOL. On what grounds would you suggest that is a good investment of money and time?

Yesterday you said were going to provide some precedents that would be applicable in an English court and effectively make these cases a certainty??

“may not be limited or waived”

[JDB]

@meta thanks, I can read. Your quote changes nothing.

[meta]

I will also put in the following from BA’s own conditions of carriage:

2c) Differences between these conditions of carriage and tariffs and laws

If these conditions of carriage are inconsistent with any tariffs or laws which apply to your contract of carriage with us, the tariffs or laws will apply.

[JDB]

meta wrote:

I will also put in the following from BA’s own conditions of carriage:

2c) Differences between these conditions of carriage and tariffs and laws

If these conditions of carriage are inconsistent with any tariffs or laws which apply to your contract of carriage with us, the tariffs or laws will apply.

Yes, that too changes nothing. The T&Cs, as with those of every other company work in conjunction with/alongside statutory requirements, as in shops saying their refund terms don’t affect your statutory rights. The point is that one doesn’t nullify the other. Neither the T&Cs nor UK261 give you an unlimited open ticket as you keep suggesting; that is not how “at the passenger’s convenience” is being interpreted by judges or arbitrators. What is reasonable will turn on the facts of each case, not on some generalisation or indeed your dozen wins.

[points_worrier]

JDB wrote:

Yes, that too changes nothing. The T&Cs, as with those of every other company work in conjunction with/alongside statutory requirements, as in shops saying their refund terms don’t affect your statutory rights. The point is that one doesn’t nullify the other. Neither the T&Cs nor UK261 give you an unlimited open ticket as you keep suggesting; that is not how “at the passenger’s convenience” is being interpreted by judges or arbitrators. What is reasonable will turn on the facts of each case, not on some generalisation or indeed your dozen wins.

@JDB You seem to be following BA’s sophistry. I am sure @meta nor @1958 are arguing for an ‘unlimited open ticket’. They are asking for a ticket within 12 months of their cancelled flight, no? This is therefore a flight that is available for new customers to purchase at the same time they themselves are being told their flight is cancelled. Surely it must be reasonable to define their ‘convenience’ as this? The decision regarding ‘at the passenger’s convenience’ only comes in to it at the point of cancellation. It only exists because BA cancels their flight. At that point. At that time, under EC261/2004 Article 8(1)(c) rights, to treat someone differently who booked their ticket yesterday, and someone who booked it 11 1/2 months ago is imposing BA’s T&Cs over the directive’s stated aim. In both cases it is subject to the ‘availability of seats’, not subject to a restrictive term in BA’s condition of carriage.

• This reply was modified 54 years, 11 months ago by .

[JDB]

meta wrote:

JDB wrote:

@meta I haven’t forgotten Article 15; however, your interpretation that it renders the T&Cs “void and null” is not what the Article says and is simply wrong. This is why giving blanket advice to people without being in possession of all the facts of their case is so dangerous. For the passenger above, it would cost them over £800+ in court application and hearing fees to have a second go at this via MCOL. On what grounds would you suggest that is a good investment of money and time?

Yesterday you said were going to provide some precedents that would be applicable in an English court and effectively make these cases a certainty??

“may not be limited or waived”

Thank you; I can read. It is your “void and null” that is the problem. The wording that in essence terms can’t override the law (like old cloakroom disclaimers) is totally standard but doesn’t automatically nullify the contract, but extends the passenger’s rights. It does require balancing the two elements. In some cases, full application of the T&Cs will be determined also to be compliant with UK261. We have had four recent CEDR losses reported here and one win. There is a risk that 2020 tickets are now going a bit stale and passengers, by delaying are now facing even less buying power with their refunds and the risk of losing needed to be factored in. Some have even gone so far as to encourage people to buy expensive replacement tickets (albeit refundable ones) tying up a lot of funds for a potentially uncertain outcome. That was really poor advice based on very little fact and the reality is that in many cases a far away cancellation doesn’t buy you a long term open ticket and people’s expectations have been wrongly raised.