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Any thoughts, similar experiences and/or tactics I can use against BA (assuming what they are saying is rubbish).following a plane being cancelled moments before boarding fee to Dubai.
Their email reply was:
I’ve looked into what happened, and your particular flight was delayed because of technical issues.
Unfortunately, we had no choice but to delay the aircraft from departing.
As you were unable to travel on this delayed flight, compensation is not due on this occasion.
You are going to have to give us more details before anyone can comment further on any potential claim.
You weren’t able to travel on the delayed / cancelled flight so how did you travel?
On another airline that BA rebooked you on?
How late was your arrival compared to your scheduled one?
May need more precise wording as well – the A380’s are delayed a lot and BA must pay out regularly. We were delayed nearly 4 hours departing on that route due to tech issues and BA paid out in less than a fortnight from me submitting the claim.
Tell us what was on your initial claim.
Sorry it’s was a 10.30pm flight, canceled, qnd the next available flight was circa 10.40am next day, which I could not make it, so accepted a refund and did not fly at at all
Was the flight actually cancelled or merely delayed to the following morning? The reply you received from BA suggests the latter ie only delayed
You were entitled to and took a refund since the flight was delayed more than 5 hours.
But it looks like BA is saying as you took a refund that means you weren’t delayed and therefore not entitled to delay compensation.
That said I am not sure but I think you are entitled to treat a delay greater than 5 hours as a cancellation in which case compensation would potentially be due assuming the cause was not extraordinary.
Details matter (cancellation vs overnight delay for example). You’re probably better off looking on the Flyertalk cancellation reasons and EU261 threads to see if your flight has been mentioned.
Here is a further detailed reply from BA
Your flight, BA0109, was not cancelled and was delayed overnight due to technical issues relating to the traffic collision avoidance system. Unfortunately, it was necessary to delay this flight until it was safe to depart. Flight BA0109 departed on 05 September at 15:16. As you did not travel on your delayed flight, compensation is not due.
I understand you chose to cancel your package holiday and receive a full refund on 05 September 2023. As you cancelled your reservation with us and did not travel, the expenses you have mentioned are not something we are liable for. Please contact your travel insurer as they may be best placed to help you with a claim for this instead.
So although very unfortunate, that seems fairly clear. By opting for a full refund you effectively opted out of any other compensation. It’s unclear what other expenses you were trying to claim. Did you actually travel to Dubai or not, and if so by what means?
@mgmgmgmg – BA’s response is correct. If the flight had been cancelled and you took a refund, you might also have been eligible for cancellation compensation. However, as the flight was instead delayed, you would need to have travelled on the flight to collect any delay compensation.
It looks like BA are right. But as it was over 5 hours, you are entitled to expenses, eg cost of getting to and from airport, as well as refund. But not EU261 cancellation compensation
It looks like BA are right. But as it was over 5 hours, you are entitled to expenses, eg cost of getting to and from airport, as well as refund. But not EU261 cancellation compensation
You aren’t even entitled to the ‘lost’ costs of getting to/from the airport for a delayed or cancelled flight. A passenger is entitled to claim extra transport costs of travelling to/from any Article 9 accommodation.
When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:
(a) for two hours or more in the case of flights of 1 500 kilo-metres or less;
or (b) for three hours or more in the case of all […] 1 flights between 1 500 and 3 500 kilometres;or (c) for four hours or more in the case of all flights not falling under (a) or (b), passengers shall be offered by the operating air carrier: (i) the assistance specified in Article 9(1)(a) and 9(2);
and (ii) when the reasonably expected time of departure is at least the day after the time of departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c);and (iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a).
To me it’s ambiguous, but 8.1.A gives the choice of a refund, it doesn’t exclude the duty of care for lesser delays . The passenger has costs associated with going to from airport, and airline broke th contract, thus would be responsible for these costs.
EU261 is not thought through properly, in not differentiating between cancellation beforehand, and cancellation at airport or once passenger has started journey.
@Garethgerry – in respect of transportation, the rules are quite prescriptive – there is no ambiguity in Article 9.1(c). The airline isn’t responsible for covering the cost of your wasted trip to the airport or leaving the airport unless you are awaiting (overnight) the delayed flight or rerouting flight.
The provision of refreshments works in the ordinary way until you opt for the refund.
It says clearly in 12 and 13 that this does not exclude the passengers right to further redress , which would include costs. BA will and hav3say claim off insurance, insurance will say BA. Once the passenger has letter from insurance saying BA responsibility then claim these off BA.
Lots to think about, albeit somewhat confused
It says clearly in 12 and 13 that this does not exclude the passengers right to further redress , which would include costs. BA will and hav3say claim off insurance, insurance will say BA. Once the passenger has letter from insurance saying BA responsibility then claim these off BA.
So, if it’s actionable at all, what is cause of action and how would you pursue it? How would BA suggesting it’s the insurer’s responsibility and vice versa help any action.
You have suggested that BA was in breach of contract, however BA executed the contract (albeit with a delay) but this passenger elected to sever the contract prior to BA carrying out the contract.
I have to ask – why couldn’t you make the rescheduled flight? Surely if you were due to travel home, you didn’t have existing plans, and in the event of an overnight delay BA ought to have provided accommodation. Did you decline this? Did you leave the airport before BA told you what was happening? It does sound like you didn’t even give them the opportunity to make right/reroute/rebook before you cancelled for a refund.
All I can say I’ve had same situation where another company (cruise) tried to get out by passing buck to insurance, but faced with letter from insurance stating clearly they were responsible they agreed.
Given that BA said there would be at least 5 hour delay, then the passenger is entitled to treat it as a cancellation, in that case BA would have a duty of care as well as a refund. What this duty of care is depends on circumstances.
If for example BA did not tell them it was going to be 5 hours until the 5 hours was up ,and you know this happens an hour becomes 2 , becomes 3 … Then clearly BA has a duty of care during the 5 hours they were waiting at airport.
If BA immediately tells the passenger of a 5 hour delay at check-in then, and then if this defeats the purpose of the flight this is akin to cancellation on BAs part. Then as well as right to refund, reasonable expenses are allowed.
The only get out is BA could argue that 5 hours would not defeat the purpose of this flight and it was unreasonable for the passenger to exercise rights to refund and cancel. We do not know if it was a one day flying visit with something vital in the first day. Or a 2 week holiday, in which case the defeat purpose clause cannot logically apply and cancellation is a bit strange.
@Garethgerry – the problem is that Parliament has explicitly decided/stated what is and what isn’t covered under the Article 9 Right to Care provisions (obviously very different from duty of care) so how/why is a court going to depart from that to give you the (wasted) costs of your travel to the airport for a flight that ends up being cancelled and then returning home? That would seem like judicial overreach. Cruise companies don’t have the same rules that set out passenger rights.
While you correctly state that one can seek further redress (under Article 12, not 13) from the airline, this particular element is so obvious, that if the legislature had wished it to be covered, it would have been stated. The law does cover additional transportation costs to take you to/from accommodation required upon cancellation or overnight delay.
You say that a five hour delay is akin to a cancellation, but again, that’s not the position in law. At five hours the law grants you the option of a refund, in addition to your Article 9 rights but you don’t get the rerouting rights to which you would be entitled after a cancellation.
The sort of thing that might be covered under Article 12 might be say lost wages following a delay or cancellation.
What you are saying is that a delay will never be treated as a cancellation. So an airline can delay a flight by a week or a month and you don’t get rerouting rights because its a delay not a cancellation. The law is not that inflexible.
The law accepts that after a certain time a long delay defeats the purpose of the flight and the passenger can treat this as if it was a cancellation, non fulfillment of contract. The only indication of what this time is , is the right at 5 hours to a refund. So it is as if the airline cancelled the flight.
Fascinating stuff, thanks both. Need a lawyer to help understand.
I decided to cancel as would mean problems with work. I cancelled in the morning, after staying in a hotel. They offered to pay hotels, but the one offered had no.space left.
They also lost my luggage for 3 days and had to send it to my home.
What you are saying is that a delay will never be treated as a cancellation. So an airline can delay a flight by a week or a month and you don’t get rerouting rights because its a delay not a cancellation. The law is not that inflexible.
The law accepts that after a certain time a long delay defeats the purpose of the flight and the passenger can treat this as if it was a cancellation, non fulfillment of contract. The only indication of what this time is , is the right at 5 hours to a refund. So it is as if the airline cancelled the flight.
The above is your wished for law! The law isn’t at all inflexible except where the relevant statute sets the ‘tariff’ and prescribes the circumstances under which compensation or other remedies apply, as in EC261. An overnight delay, which might quite commonly be from 6pm one day to 2pm the next, is expressly covered in the guidelines as a delay not a cancellation which has a specific definition in the legislation and guidelines.
No mention of the Sturgeon Judgement @JDB.
No mention of the Sturgeon Judgement @JDB.
The Sturgeon judgment doesn’t add anything hers as it’s about compensation for delay (which might apply in the instant case absent any ‘extraordinary circumstances’) but the suggestion here is that following an overnight delay, if the passenger decides to exercise the right to claim a refund that an airline becomes liable for the costs of travelling to/from the airport. That’s not the case in this situation or indeed for a cancellation.
All noted thanks
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