A loss at CEDR

[points_worrier]

JDB wrote:

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.

Yes. A simple ’12 months from date of original flight’ would sort this out immediately.

[1958]

Lady London wrote:

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.

Again, thanks for everyone’s input. I have bought replacement flights (and screensaved alternative quotes), so I am interested in a MCOL against BA.
Can someone please advise me on the costs of MCOL?
As the claim is for approx £8,000 then I expect a Court Fee of £455.
Are there other fees to expect (such as trial fees)?
And in the event that I lose, would I be liable to pay BA’s costs?

[JDB]

@1958 many cases are decided on the papers alone, but if it goes to a hearing, there is an additional hearing fee of £346. Although it costs BA more, they may seek a hearing, partly as a scare tactic. If you win, BA will have to pay all your fees. It is relatively unlikely that you will be asked to pay BA’s costs if you lose, but as I mentioned in an earlier post, I think BA will quite likely apply for them in this case.

[Jon]

@1958 (and to anyone else thinking of MCOLing) I’ve just been through MCOL with Creation (I’ll post a detailed update in the other thread soon, but for now let’s just say the words judgement and default are relevant… ;-)) my advice would be to take the time to thoroughly read the MCOL user guide and also Practice Direction 7E.

(Seems I can’t post links – or maybe I included too many and my previous attempt went into moderation. Or just disappeared. I’ll try adding them as separate replies to this.)

The latter can seem a bit daunting at first, and it can be a bit fiddly trying to follow up the various other Directions cross-referenced in there, but I found it very useful to take the time to read it carefully (and I found myself regularly referring back to it to check details). Parts 15 and 16 (and the Practice Directions that follow each) may also be useful.

Also don’t be afraid to call the MCOL helpline if you have any queries or concerns about the process, or about any shenanigans the defendant comes up with – I found them very helpful.

Hope that helps, and good luck!

[Jon]

MCOL user guide: https://www.gov.uk/government/publications/money-claim-online-user-guide/money-claim-online-mcol-user-guide

[Jon]

Practice Directions: https://www.justice.gov.uk/courts/procedure-rules/civil/rules

[Jon]

@1958 (and to anyone else thinking of MCOLing) I’ve just been through MCOL with Creation (I’ll post a detailed update in the other thread soon, but for now let’s just say the words judgement and default are relevant… ;-)) my advice would be to take the time to thoroughly read the MCOL user guide and also Practice Direction 7E:

https://www.gov.uk/government/publications/money-claim-online-user-guide/money-claim-online-mcol-user-guide

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07e

The latter can seem a bit daunting at first, and it can be a bit fiddly trying to follow up the various other Directions cross-referenced in there, but I found it very useful to take the time to read it carefully (and I found myself regularly referring back to it to check details). Parts 15 and 16 (and the Practice Directions that follow each) may also be useful – they can be linked from here:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules

Also don’t be afraid to call the MCOL helpline if you have any queries or concerns about the process, or about any shenanigans the defendant comes up with – I found them very helpful.

Hope that helps, and good luck!

[Lady London]

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

That’s really good stuff @pointsworrier.

[Lady London]

@Jon…can you say anything about outcome?
Did you feel you needed to cover having gone to MCOL and not done FOS?

[Lady London]

memesweeper wrote:

Thanks @meta for the link to Select Fares.

*cough* *cough*

Oops sorry @memesweeper.Yup Select Fares was you that mentioned it, and you are such an influencer meta has also mentioned it as a way to get one example of a comparable fare cost for reroute. Remind me I owe you a drink at the next but one HfP party 🙂

[Lady London]

memesweeper wrote:

Thanks @meta for the link to Select Fares.

*cough* *cough*

Oops sorry @memesweeper.Yup Select Fares was you that mentioned it, and you are such an influencer meta has also mentioned it as a way to get one example of a comparable fare cost for reroute. Remind me I owe you a drink at the next but one HfP party!

[Lady London]

points_worrier wrote:

JDB wrote:

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.

Yes. A simple ’12 months from date of original flight’ would sort this out immediately.

points_worrier wrote:

JDB wrote:

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.

Yes. A simple ’12 months from date of original flight’ would sort this out immediately.

Not for Covid, though. Some airlines have only relatively recently started flying routes they cancelled early in 2020.

[Lady London]

Lula wrote:

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

@Lula take very seriously JDB’s advice about MCOL. The court fees are at your personal risk. You are rolling the dice always to some extent even with MCOL as JDB points out.

Also as JDB and other helpful posters have kindly taken the time to advise in detail, you need to prepare your case and that’s a lot of work (and stress) for even a competent professional layman like you or me. As others have said, orgsnise it well, and as JDB has stressed keep it clear why in your circs what you ask is reasonable. Statute is a wonderful foundation but as JDB says reasonableness and interpretation do matter in English legal practice too.

If you didn’t post details of your case and get help from posters here please do when you’ve got the logic sorted. Also if you take a look at the Creation bashing thread there is a lot of rhetoric , several of us are guilty as charged, but start at the end, the last I saw on there was jj, and work back for ideas.

• This reply was modified 54 years, 4 months ago by .

[Jon]

Lady London wrote:

@Jon…can you say anything about outcome?
Did you feel you needed to cover having gone to MCOL and not done FOS?

For now, just that it went my way 🙂 I’ll post some observations and lessons learned etc once it’s definitely all done-and-dusted…

I did address the not-using-FOS issue in my additional particulars of claim – reports of extended FOS timescales, need resolution soonest due to travel plans, matter more appropriate for MCOL as it’s (I submitted) a clear-cut breach of law (Consumer Rights Act 2015).

That said, it was all moot – Creation didn’t defend. I’m not sure their solicitor even read my claim particulars as it appears Creation didn’t bother passing it on to them…

[Lady London]

Tx Jon, I can’t wait for details 🙂 . Please post on Creation Bashing? thread when you’re ready.

Are you waiting for a time limit to expire in case Creation comes up with “We were asleep and le chien ate our legal preparation so can we appeal please?”. There’s been a couple of reports on here that their strategy is to lie doggo then wake up, appeal and finally put a competent lawyer with a big microscope on the case when they lose. Please can you also let us know if this happens?

[Jon]

Lady London wrote:

Tx Jon, I can’t wait for details 🙂 . Please post on Creation Bashing? thread when you’re ready.

Are you waiting for a time limit to expire in case Creation comes up with “We were asleep and le chien ate our legal preparation so can we appeal please?”

Will do 🙂 And yes 😉

It will be interesting to see whether they do try to appeal. I’m not sure they will (their own solicitor’s costs are already over a third of the total claim), and even if they do, I’m not sure the court would look kindly on it given some of their previous tactics so far. But we’ll see…

[Lula]

Thank you. I am very mindful of @JDB’s helpful advice, but as he pointed out to me in one of his replies I’ve left it a bit late so not sure I have the time for 2 processes. I feel more stressed about this than I should, partly because of other complications at the moment (unrelated to travel/points collection!)

[JDB]

Lady London wrote:

Tx Jon, I can’t wait for details 🙂 . Please post on Creation Bashing? thread when you’re ready.

Are you waiting for a time limit to expire in case Creation comes up with “We were asleep and le chien ate our legal preparation so can we appeal please?”. There’s been a couple of reports on here that their strategy is to lie doggo then wake up, appeal and finally put a competent lawyer with a big microscope on the case when they lose. Please can you also let us know if this happens?

Creation can’t appeal a default judgment, but they can apply to have it set aside. It is wise to wait until the time period (usually 14 days) has elapsed plus the time for the court to notify the claimant before saying anything. There is no certainty their application would be successful, and it wouldn’t give them a ‘win’ but would mean the original case would actually be heard.

[points_worrier]

JDB wrote:

Creation can’t appeal a default judgment, but they can apply to have it set aside. It is wise to wait until the time period (usually 14 days) has elapsed plus the time for the court to notify the claimant before saying anything. There is no certainty their application would be successful, and it wouldn’t give them a ‘win’ but would mean the original case would actually be heard.

Indeed. If they didn’t engage with the previous case, an application to set aside may actually be successful. But it’ll cost them £250+solicitors fees to do. And they will have to defend the case. So is only really worth doing if they think they have a chance.

@Jon you mention their solicitors costs – this sounds like they engaged at least a bit with the case, which would make it more difficult to argue to put it aside!

If they are just ignoring, you will also need to apply to enforce the judgement. Something which can be quite fun if there is an office for bailiffs to go around and raid!

[Jon]

points_worrier wrote:

@Jon you mention their solicitors costs – this sounds like they engaged at least a bit with the case, which would make it more difficult to argue to put it aside!

They appointed solicitors who filed an acknowledgement of service and stated their intention to defend in full, but then didn’t actually file a defence (there’s more to it than that, but I’ll leave that for when I post a full report in the other thread 😉

points_worrier wrote:

If they are just ignoring, you will also need to apply to enforce the judgement. Something which can be quite fun if there is an office for bailiffs to go around and raid!

😉

I will enforce if necessary. Although given Creation’s behaviour, a winding up order might be more fitting 😉 I wonder what the FCA would make of a regulated financial services company failing to comply with a court order and having an undischarged CCJ on record? I imagine they’ll pay – maybe by crediting it back to the credit card they cancelled 😂

[NorthernLass]

“I will enforce if necessary. Although given Creation’s behaviour, a winding up order might be more fitting 😉 I wonder what the FCA would make of a regulated financial services company failing to comply with a court order and having an undischarged CCJ on record? I imagine they’ll pay – maybe by crediting it back to the credit card they cancelled 😂”

Oh dear, I hope not – haven’t people been finding it nigh on impossible to get refunds from Creation since the debacle?!

[Jon]

@NorthernLass That wouldn’t surprise me. I suppose on the plus side, statutory interest would continue to rack up until the money gets sent on to my bank account… 😉

[Lady London]

I wonder if there’s a guarantee trail back to BNP, for Creation’s debts. i suspect not.

More and more this is looking like they’re planning to exit the UK. Is there any knowledge in the market that they’re selling up?

[Rui N.]

Didn’t people here say that the new Amazon credit card coming next year will be issued by Creation?

[memesweeper]

Lady London wrote:

I wonder if there’s a guarantee trail back to BNP, for Creation’s debts. i suspect not.

More and more this is looking like they’re planning to exit the UK. Is there any knowledge in the market that they’re selling up?

They are not issuing suplementary cards on non-closed IHG accounts. They certainly want to limit spending on existing cards. Whilst this isn’t a clear indication they are heading for a UK exit, it is consistent with that.