A loss at CEDR

[points_worrier]

@1958, I am assuming CEDR asked BA to refund your ticket?? This would still be owed to you under the conditions of carriage and/or Article 8 as BA didnt fly you!

[JDB]

@points_worrier – I’m not following BA’s alleged sophistry, but I’m also not following the duff advice some have offered on here. Unfortunately, everything turns on the facts of each case. It’s clear that BA can’t just impose its terms unreasonably and also clear you can’t just rebook whenever. The individual facts will determine where, between those two points, a judge or arbitrator will make a determination. MCOL may get a ‘cleaner’ decision but involves high fees on a pair of long haul tickets and requires the ability to construct a legal argument (that CEDR doesn’t) and think on your feet if the judge probes that argument.

• This reply was modified 55 years, 1 month ago by .

[meta]

@JDB CEDR doesn’t have any proper legal validity hence why you can go to court after you lose at CEDR. CEDR is not the court and they can make up their own rules and laws, and I have often seen arbitrators there who have no legal training whatsoever. I am totally against CEDR and that mechanism should be abolished in my opinion. It is way for airlines and CAA to minimise passengers’ rights afforded by law. I wouldn’t be surprised that some arbitrators are corrupt by the airlines themselves.

@points_warrior As soon as your flight is cancelled, your ticket validity should be extended or put on hold. Once you know your new dates, a new ticket should be issued with a validity of 12 months from the date of issuance and again if that is cancelled then you have another go and so in perpetuity if an airline keeps cancelling the flights. However, what BA does is just re-issues the same ticket over and over with original validity which is wrong and against the law and unfair treatment.

[meta]

@JDB You are also forgetting that MCOL procedure is in 90% decided on basis of documents submitted and nothing else. It very rarely goes to full hearing.

I agree with you that each case is different, hence why the advice here is only ever just that.

• This reply was modified 55 years, 1 month ago by .

[JDB]

meta wrote:

@JDB CEDR doesn’t have any proper legal validity hence why you can go to court after you lose at CEDR. CEDR is not the court and they can make up their own rules and laws, and I have often seen arbitrators there who have no legal training whatsoever. I am totally against CEDR and that mechanism should be abolished in my opinion. It is way for airlines and CAA to minimise passengers’ rights afforded by law. I wouldn’t be surprised that some arbitrators are corrupt by the airlines themselves.

@points_warrior As soon as your flight is cancelled, your ticket validity should be extended or put on hold. Once you know your new dates, a new ticket should be issued with a validity of 12 months from the date of issuance and again if that is cancelled then you have another go and so in perpetuity if an airline keeps cancelling the flights. However, what BA does is just re-issues the same ticket over and over with original validity which is wrong and against the law and unfair treatment.

Yes, of course you CAN go to MCOL after CEDR (which is the scheme approved by the regulator and free), but it involves paying significant fees, particularly if it goes to a hearing which BA may seek. Also, when you try for the second bite of the cherry BA will use the argument that the case has already been determined by a specialist aviation arbitration service, so with no new argument is just a frivolous or vexatious attempt at an appeal. I’m not sure what you consider the odds are of winning, but perhaps 60/40 in pax favour? It will take a further 3-4 months (after a similar time already wasted), so perhaps a judgment some time in August, for flights in December… it’s a difficult call.

[meta]

Judges will disregard CEDR ruling all together, especially if BA tries to use that as their defence without basing their counter arguments on law (which I’d love to see them!). I’d say chances are more likely 80/20 in pax favour and you keep forgetting that BA doesn’t want this anywhere near hearing as it will cost them really lawyer time. OP really needs to design the argument around EC/UK261 and nothing else. Vexatious claims – I hope you’re not sating that going to MCOL after CEDR is vexatious. BA would also need to prove how it was vexatious. In any case, this would involve a separate hearing regarding claims to which you can appeal, especially if BA tries to claim thousands of pounds in fees. In most MCOL cases, if you lose the case it’s only the court fee.

[1958]

Thanks to everyone who has given their view. I remain disappointed with the CEDR outcome – and in particular, I cannot understand the arbitrator’s logic that “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 18 December 2021” – when BA did not operate any flights from April 2020 to late March 2022.
– What can I do now?
I am reluctant to go down the MCOL route, as it appears that the outcome will depend on the judge’s interpretation of “a reasonable timeframe” – and of course, there is a fee.
Can I bring a fresh case to CEDR, or appeal the decision, explaining that In effect, BA did not offer an opportunity to travel (as the flights had been cancelled)?

[PeteM]

You seem to be in a similar situation to Amy C (https://www.headforpoints.com/forums/topic/cedr-fail/) – I believe she rejected the CEDR ruling?

[memesweeper]

1958 wrote:

Thanks to everyone who has given their view. I remain disappointed with the CEDR outcome – and in particular, I cannot understand the arbitrator’s logic that “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 18 December 2021” – when BA did not operate any flights from April 2020 to late March 2022.
– What can I do now?
I am reluctant to go down the MCOL route, as it appears that the outcome will depend on the judge’s interpretation of “a reasonable timeframe” – and of course, there is a fee.
Can I bring a fresh case to CEDR, or appeal the decision, explaining that In effect, BA did not offer an opportunity to travel (as the flights had been cancelled)?

What can you do?

MCOL is fairly low risk, yes there is a fee you will loose if the case is not decided in your favour, but you are mainly risking your own time in preparing the case. BA will have to pay a real lawyer and they will have far more to loose. A well drafted letter before action might be sufficient to make BA relent. If not, your well drafted LBA will be the basis of your case to MCOL, you will have done at least half the work required when you have that letter ready.

There have been several reports here of CEDR coming up with what appear to be perverse decisions. I’ve not seen any about judges handing down bad decisions at MCOL.

My experiences with MCOL have been good and Adjudication bad.

[1958]

memesweeper wrote:

What can you do?

MCOL is fairly low risk, yes there is a fee you will loose if the case is not decided in your favour, but you are mainly risking your own time in preparing the case. BA will have to pay a real lawyer and they will have far more to loose. A well drafted letter before action might be sufficient to make BA relent. If not, your well drafted LBA will be the basis of your case to MCOL, you will have done at least half the work required when you have that letter ready.

There have been several reports here of CEDR coming up with what appear to be perverse decisions. I’ve not seen any about judges handing down bad decisions at MCOL.

My experiences with MCOL have been good and Adjudication bad.

Thanks for this. I have followed AmyC’s case – but so far the CEDR have not addressed her complaint. Also, I don’t know what a “successful complaint” against the CEDR would achieve. Per the CEDR website:
We cannot investigate complaints about:
• decisions made by our adjudicators and arbitrators, or any of the decision process
they adopt; (please note that adjudicator/ arbitrator decisions are final and cannot be
appealed and this includes situations where objections have been upheld);

I think that a well-written LBA to BA (referencing Articles 8 and 15, and giving the reason why I sought slightly over a year), being clear that MCOL is the next step is the best way forward.
My reflection is that CEDR appear attractive, as it is free – but the decisions are arbitrary.
Please tell me if you disagree, anyone.

[memesweeper]

One thing you’ll need on your LBA is a cash sum you will be seeking at MCOL. If your tickets were Avios I’d recommend you look at Select fares. https://ndc.ba.com/docs/capability-features/offer-management/branded-fares these are refundable for a fee, similar to Avios tickets, but cheaper than fully flexible ones. Last time I checked you could purchase them through Amex travel. I’m not sure you have to actually buy the ticket before MCOL, but if you don’t there’s a small risk you eventually win, get a cash award, and the ticket price has radically increased.

[meta]

Yes, CEDR is attractive because it’s free and precisely why airlines in cahoots with the regulator CAA have come up with it so it can make perverse decisions pretending to be based on law.

This is why I advise to just do an LBA from the outset and send it to legal department at Waterside. Once it gets into the hands of in-house paralegal, they’ll know the costs involved going to MCOL and will think twice. They are far more legally trained than any CEDR arbitrator. We only hear about unsuccessful cases and not about 99% successful ones. Lawyers in general will try to settle before hearings because that’s how they are taught. If it comes to hearing, one of the first things the judge will ask whether you tried to settle. Then the case also becomes about why BA didn’t want to settle and waste court’s time.

[meta]

@memesweeper Amex Travel still does sell them!

[memesweeper]

meta wrote:

@memesweeper Amex Travel still does sell them!

Thanks @meta — looking at the reported times for MCOL to turn around a decision, I’d be minded to buy the ticket(s) if BA don’t cave in following the LBA. Potentially expensive for @1958 though.

My sister sent BA an LBA autumn 2021 having found herself in similar circumstances to @1958 and got a swift and positive response, and the right tickets quickly issued — no perverse prior CEDR however, and to Italy not Australia!

However a few weeks ago I popped an LBA into BA and have had nothing back (this followed a formal complaint which BA ignored). I wonder if the legal team is a swamped as the call centres are?

[Lula]

I sent a LBA recently and got a response from customer relations acknowledging that I’d written to the legal team and giving me the same line about ticket validity.

Reading through this thread though I’m wondering if I made an error by not specifying an amount I’m seeking for the claim. I said I wanted rerouting.

Other than that the letter was (IMHO) pretty well drafted. But it still appears to have been rejected.

Now weighing up pros and cons of Cedr and Mcol. Have i potentially damaged any small claims case by not including an amount in my LBA? If so, is there any way of remedying that?

Thanks all.

[meta]

LBA does need to include what compensation you are seeking. Something along the lines – ‘I am seeking re-route, but if we are unable to agree, I will be taking a legal action to recover the costs of purchasing a new ticket which has the potential to cost BA the following:
– the cost of a new ticket (specify the amount, don’t need to purchase the ticket yet, work an average based on the current ticket prices
– all legal fees and costs (they know it is just MCOL fees, but it’s a standard phrase and this could also include postal costs, printing, etc., always send everything by recorded delivery as you can add that to the cost in MCOL claim and for the sake of few extra quid there is a potential to avoid MCOL all together)
– statutory interest from the date of starting the proceedings

You can send another LBA or amendment and give them another eight days then start MCOL.

@memesweeper I rarely hear anything from BA before MCOL submissions. It was only on my last one that they responded within a few days and settled everything.

• This reply was modified 55 years, 1 month ago by .

[Lula]

Thank you @meta. Am very grateful for the advice.

[Lady London]

What an exciting discussion I’ve missed!

Part A. Re CEDR vs MCOL, unfortunately CEDR is not obliged to follow the law if they think there is a more reasonable solution. So they can put BA’s Conditions of Carriage, above the law, although they should deal with why they did. And in this judgment, at CEDR level, they did say why and better than in Amy’s judgment, which really failed to prove that arbitrator had at least considered the law.
A judge, on the other hand, must judge according to the law.

NB: If the judge doesn’t like the law, whether it’s the written law, or case law that has refined the written law by other judges’ interpretations in previous judgments, then a judge *can* find a way to make a different judgment. But in doing so he has to say in his judgment why this case is different than pre-existing case law, and what interpretation he is making of the written law, to reach his decision. This takes work, to ensure the judge who wants to go against existing law does not look incompetent. So written law and case law is what a judge will mostly follow.
Not the case with CEDR. CEDR judgments should take the law into account, but CEDR judgment does not have to follow any law. CEDR is cheaper and supposed to be more accessible for resolving disputes. CEDR adjudicators are arbitrators, not judges. Being qualified in law is not required, to be an adjudicator.

If the law is strongly on your side, as it is for quite a number of EU261 cases that come up on HfP, why would you throw away your advantage and go to CEDR where the outcome is relatively unpredictable? The only reason is to save money. MCOL fees are moderate for most things, but with expensive airfares can be high, due to being percentage-based.

CEDR saving time and being more accessible is illusory IMV. Your case may be heard a little earlier but you should be prepared rigorously for either CEDR or MCOL.

Personally my view of CEDR is the same as meta’s, for EU261 claims at least. And my view of FOS, for finance industry claims by consumers, tends in the same direction.

[Lady London]

Part B. I agree with most of the comments of other posters as to issues with the judgment in terms of reasonableness and EU261. In no particular order:

– BA cancelled the flight shortly after it was booked in December 2020, and allowed a rebook to a flight in April 2021. So it looks like BA originally breached their own internal 12 months rule, that they’re now trying to stick to.

– 2 people cancelled off the same flight should not have different outcomes in the window they have to select a replacement flight (reroute). If I booked yesterday, and the other passenger booked 353 days ago, then if BA cancels our flight today, the effect of BA’s CoC is that the other passenger only has 1 more day left of his ticket validity on which BA will let him book his replacement flight. Whereas I, cancelled off that same flight, have another 353 days on which BA will let me book my replacement flight. This is why EU261 exists, as in the text in its preamble (Read it. Some of it could be worth including).

12 months validity of a ticket from issue or reissue (ie change) is the industry standard, for normal tickets without disruptions. IATA, the body which governs air ticketing, lays down a procedure for reticketing when passenger flights are disrupted ie for involuntary changes (such as flight cancellations). The ticket is endorsed (=annotated) “INVOL” and thereby the 12 month validity restriction is removed. BA, however, has apparently chosen not to follow this industry procedure. [Ask a BA agent if they do before the hearing, just to cover this. They won’t have heard of it or will say “our systems don’t do that”]

– We had a report in another CEDR case that BA persuaded the adjudicator that the passenger was asking for an infinite period to rebook rather than just something reasonable. JDB is right :, an explanation of the passenger’s own circumstances and why this date is reasonable/earliest feasible for this particular passenger, is important to make to stop judges falling for this. Season/event dates/other plans blocking earlier dates/other commitments/work/time to travel long enough/availability of family/companions on trip or at destination etc.

It’s also worth mentioning that if the passenger wanted complete freedom if BA is hinting this, there is a type of ticket that can be issued, an Open ticket, and if the passenger had wanted this they would have asked for it (one HfP reader got one from Singapore Airlines). Instead, the passenger wants to exercise their right to a reroute on a later date convenient to him and in the circs, his date is perfectly reasonable.

– BA didn’t fly the route for 2 years[reasons are irrelevant] so how can this period be dealt with? Passenger asked for reroute a reasonable time after flights reopened and in the same season as he had already(re-) made his plans (December, beach parties etc.[possibly with others who are also not available to travel to be with, as soon as practicable for him after BA found it commercially suitable to reopen flights ie April 2022. No doubt there was continuing uncertainty, having been cancelled twice before, until BA did actually reopen flights.

– Could also be worth pointing out that passenger has mitigated BA’s losses as he could under Article x of EU261, have requested BA to reroute him on another airline on his booked dates in December 21 after BA cancelled his flight again. This would have caused BA to have to pay another airline to reroute the passenger. Passenger has saved BA cost by waiting till BA was again offering a flight schedule then rearranging his travel plans.[Guessing could be useful if you can provide the name of a case or two where another airline rerouting was ordered.]

– JDB it’s moot that Oz was closed or that anything was outside BA’s control – passenger is working with BA’s schedule. Any excuses for ‘outside airline’s control’ ie ‘exceptional circumstances’, only matter in EU261 as regards compensation claims. This is not a compensation claim. This is a duty of care claim (rerouting) and there is *no* exemption in EU261 for the airline from duty of care, due to exceptional circs/outside airline’s control.

– Thanks @meta for the link to Select Fares. https://ndc.ba.com/docs/capability-features/offer-management/branded-fares For some time now I’ve suggested claimants present 3-5 varied, comparable quotes to illustrate the cost of replacement tickets, if they are not able to find a friendly travel agent to hold a cancelable reservation without full payment. Thank you Meta this gives us another option. It also, as I think JDB suggested, lets you outline to the judge the much higher costs if you take a refund and are forced to rebook : as JDB says, many judges won’t be aware of the difference. But once it’s pointed out how keen airlines are to refund rather than reroute, I am sure judges will be able to put two and two together once the prices to buy replacement tickets are shown to them with a few examples across different airlines, of comparable tickets… or even, as Meta suggests, BA’s own Select tickets, this much higher pricing being comparable enough to avios tix as regards similar ticket conditions.

– Article 15 – as other posters said, really important to make a point of what it says to ensure BA’s CoC do not supersede EC261 right to reroute noting that in the circs (as in memesweeper’s very good outline) passenger’s request is reasonable.

– JDB’s point and meta’s point that a well structured case is key – highly desirable for CEDR and absolutely essential for MCOL, for this type/value of claim. JDB I absolutely agree with you “constructing/articulating a good case for the desired [convenient date if it’s] a long time ahead is critical to persuade someone to order BA to override its [own]terms [and obey the governing statute]. 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” and I am glad you say this to us.

No one is “gung-ho”. HfP is a great reference. But as you and meta say, each claimant has to structure their own organised reasonable detailed case. JDB, I still say statute does override contract as a rule. To override this in court/MCOL there has to be a very, very good reason. It’s one of the first things they teach you in Contract Law, same as in Finance the first thing is double entry bookkeeping and compound interest. Perverse decisions can also happen in court, but thank goodness are much rarer at MCOL than what we hear of from CEDR and, to a surprising extent, the FOS.

Although the cost would matter to me too, I would probably do MCOL or nothing for this type of claim as if the law is on your side, MCOL should serve you better.

[Lula]

Thank you @ladylondon. Very helpful. I was leaning towards MCOL already and you’ve helped make up my mind.

[memesweeper]

Thanks @meta for the link to Select Fares.

*cough* *cough*

[points_worrier]

Thanks @ladylondon.

I would also emphasise BA’s failure to correctly offer Article 8(1) choice if appropriate. I would include the CAA guidance which states airlines should document ‘how the offer of a re-routed flight was made, and the rerouting options offered.’ The CAA goes on to say that it expects airlines to provide this to an ADR provider (ie CEDR), and those that don’t are ‘likely to result in the complaint or claim being upheld in favour of the consumer.’

https://publicapps.caa.co.uk/docs/33/Re-routing%20Guidance%20(CAP2155).pdf

[meta]

memesweeper wrote:

Thanks @meta for the link to Select Fares.

*cough* *cough*

Yes, it was @memesweeper. I only added that they are available via Amex Travel.

[JDB]

points_worrier wrote:

Thanks @ladylondon.

I would also emphasise BA’s failure to correctly offer Article 8(1) choice if appropriate. I would include the CAA guidance which states airlines should document ‘how the offer of a re-routed flight was made, and the rerouting options offered.’ The CAA goes on to say that it expects airlines to provide this to an ADR provider (ie CEDR), and those that don’t are ‘likely to result in the complaint or claim being upheld in favour of the consumer.’

https://publicapps.caa.co.uk/docs/33/Re-routing%20Guidance%20(CAP2155).pdf

It’s quite annoying that this document which has been around for a while does almost nothing to address longer term cancellations which is the biggest problem that we are seeing. It doesn’t offer guidance on how “at the passenger’s convenience” should be interpreted.

[points_worrier]

Lady London wrote:

12 months validity of a ticket from issue or reissue (ie change) is the industry standard, for normal tickets without disruptions. IATA, the body which governs air ticketing, lays down a procedure for reticketing when passenger flights are disrupted ie for involuntary changes (such as flight cancellations). The ticket is endorsed (=annotated) “INVOL” and thereby the 12 month validity restriction is removed. BA, however, has apparently chosen not to follow this industry procedure. [Ask a BA agent if they do before the hearing, just to cover this. They won’t have heard of it or will say “our systems don’t do that”]

I can’t find the evidence for this. The IATA manual is here:
https://acrobat.adobe.com/link/track?uri=urn:aaid:scds:US:d8562a17-4c10-331b-9752-d8df5a419d5e

I can’t see evidence that the 12 month restriction must be removed, only it can be removed should the carrier wish.

• This reply was modified 55 years, 1 month ago by .