Can I claim EC261 compensation?

[gavman99]

3 weeks ago, my family of 4 travelled Edinburgh to Sao Paulo via LHR. 6 days before the flight, we received an email saying our 17:30 flight was cancelled. Following many hours trying to talk to someone, We eventually got moved to the only available flight they had to get us to LHR on time. This was the 11:00 flight from Edinburgh. So our overall travel time increased by 6 and a half hours.

BA website at https://www.britishairways.com/en-gb/information/legal/flight-cancellation-compensation states :

2) Informed of a cancellation less than fourteen days before the planned departure date that arises from causes within the carrier’s control (rather than extraordinary circumstances which could not have been avoided by all reasonable measures), unless you are offered a re-route which allows departure and arrival at your final destination within the following times:
– If you are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing you to depart no more than one hour before the scheduled time of departure and to reach your final destination less than two hours after the scheduled time of arrival.

So my interpretation of this is that compensation applies unless the conditions in the 2nd clause are met i.e.

– allowing you to depart no more than one hour before the scheduled time of departure
AND
– reach your final destination less than two hours after the scheduled time of arrival.”

Whilst we arrived at the final destination on time, we didn’t depart “no more than one hour before the scheduled time of departure”. We actually departed 6 and a half hours before the scheduled time of departure.

So as both these points were not met (only one was), I believe our claim for EC261 compensation is valid.

Can anyone confirmed if my interpretation is correct or am I looking at this through a biased lens ?

Thanks,
Gav.

[AJA]

I agree. I think you’re entitled to claim.

[JDB]

I hope you will be OK, but it isn’t clear cut, with your highlighted ‘and’ being one issue, as you arrived on schedule for the whole journey, although you left early for the first leg. The EU case law that would need to be applied to your benefit is post Brexit.

[Lady London]

I am not sure why it’s considered case law here. The text is clear in EU261 similar to what @gavman99 says. The EU text has stayed the same as it was before Brexit and that text is now in UK law and seems to have what you need.

In EC261/2004 Article 5.1(c)(iii) deals with eligibility for compensation. There’s definitely an AND in the text of the law requiring 2 conditions to be met to exclude compensation. As gavman99 says one of these tests is failed so compensation is not excluded ie airline has to pay. Rate for the journey EDI-South America is 600 euros per seat (£520) as this is the journey that was disrupted.

Aeticle 7.2(c) of the same says if delay at arrival point was less than 4 hours for this distance then airline may opt to reduce compo by 50% ie £260 per seat.

0 or less is less than 4 hours delay following the cancellation for which you qualified for compensation and you already proved disruption due cancellation by having to take a flight over 1 hour earlier under the other Article’s condition so it would seem to fit there is still a cancellation to compensate.

So you claim £520 per seat,say nothing, up to airline to take that option yo reduce your compo by 50%. Regardless, your claim throughout is for £520 per seat. If they quote this option and clam it and say they’ll pay £260 per seat you’ll have to accept it but I wouldn’t prompt them.

By all means claim under what you’ve found in their Conditions of Carriage. If they refuse or ignore or no satisfaction after 8 weeks or 3 requests then mention the following in your LBA that you will send.(search on this Forum in tbis category to see the many times the procedure snd your options are described).

If you have to do LBA/CEDR/MCOL then statute (law) to quote is the above articles under “EC261/2004 as adopted in UK law via The Air Passenger Rights and Air Travel Organisers Licensing (Amendment)(EU Exit) Regulations 2019”. This, courtesy of poster @AJA

Let us know how it turns out

[JDB]

@Lady London your advice is not the way the courts interpreted this until 21 December 2021 (ie 15+ years after the law was enacted) so there is clearly more than one way to read the Article. That case was decided post Brexit, so in order to succeed under UK261 you need to persuade a district judge to apply an EU decision; that is not a given. I say this because you are telling this family it is a racing certainty they will get £2080 compensation, when it is not as clear cut as that.

• This reply was modified 55 years, 4 months ago by .

[Lady London]

@JDB I would have thought £260 for each of the 4 seats so £1040. Plus cost of lunch during the extra travel time under duty of care.

Are you saying there is case law in the UK which ignored the AND in Article 5 and interpreted it as OR instead? I’ve always understood that OR could mean OR or could also mean AND, but that AND meant AND and not OR.

As I don’t have access to cases and details as I’m at home(and hadn’t heard of any such cases) what is the specific point in UK case law that is a problem here. As if it’s a problem, a close look at any decisions that might be a problem in UK case law looks to be a good idea, so as to distinguish one’s case from whichever case in UK law might have gone the ‘wrong’ way. But if the case law you are thinking of did turn on that AND in Article 5 being interpreted as an OR and nothing else, then harder work might be needed in making a claim to distinguish from any key case that went the wrong way even though that other case would look to me like it had a literal error of judgment.

[JDB]

@Lady London what I am saying is that for 15+ years judges read the article to mean as long as you arrived no more than two hours late, the airline didn’t have to pay. However, in December 2021 the Court of Justice in the EU made a determination in a couple of cases referred to it stating essentially that bringing forward a flight was as bad as a delayed flight. However that case post dates Brexit so it has only possible/theoretical application in the UK at CEDR or MCOL. The Article you cite can unfortunately be read in more than one way, such that as long as they get you to your final destination in a two leg journey without the long haul delay requirement, the airline is off the hook.

The bottom line is that I think many of these cases are simply not as black and white as you suggest so that while I hope the passengers win, one shouldn’t get their hopes up too much. I don’t think that BA will pay up willingly and any pleadings need to be very carefully drafted indeed to persuade an arbitrator/judge.

• This reply was modified 55 years, 4 months ago by .

[JDB]

@Lady London one issue is that often these EU cases are pursued by consumer organisations that take them to appeal which is difficult in the UK. We have a very good and flexible first instance system (ie MCOL) but in England, appeals are fraught with difficulty (and cost) so we have and probably will continue to have very little, if any, English case law for UK261, the real title of which is too long to cite. The problem is that getting District Judge X in Northampton, say, to apply a recent EU decision is quite a tall order.

[ed_fly]

Looking at the dec 21 ECJ case law, my reading is the airlines in those instances were challenging whether bringing departure forward by more than one hour constituted a cancellation, or just a change in flight time. They were seeking to claim that the flights were not cancelled, just brought forward, and therefore article 5 was not relevant. The original poster has an email from the airline stating their original flight was cancelled. I suspect the schedules will confirm that the flight was cancelled as per article 2 definitions, so not sure whether that defence is open to the airline is this instance. Therefore article 5(1)(c) is surely triggered?

Extract from the ECJ ruling press release –
“A flight must be regarded as having been ‘cancelled’ in the case where the operating air
carrier brings that flight forward by more than one hour.

In such a case, the flight must be regarded as having been brought forward by a significant amount of time since it may result in serious inconvenience for passengers, in the same way as a delay. Where a flight has been brought forward in this way, passengers are unable to use their time as they wish and to organise their trip or holiday in line with their expectations. Accordingly, passengers may, inter alia, be forced to adapt significantly to the new departure time in order to be able to take their flight, or may even be unable, despite having taken the necessary precautions, to board the aircraft.

In addition, where a flight has been brought forward by a significant amount of time, giving rise to a right to compensation (which implies, inter alia, late communication that the flight has been brought forward), the operating air carrier is still required to pay the total amount (which is, depending on the distance, € 250, 400 or 600). It does not have the possibility to reduce any compensation to be paid by 50% on the ground that it has offered the passenger re-routing, allowing him or her to arrive without delay at his or her final destination.”

I suspect the last para of the above extract of the ECJ ruling, that the original poster would be entitled to 100% of compo despite arriving on time, would be a fight to get agreed in UK courts.

• This reply was modified 55 years, 4 months ago by .

[Lady London]

@ed_fly thankyou for the above detail. There is no relation of this case to @gavman99’s situation so I wouldn’t even try to apply it. Gavman99’s flight was cancelled. He has comunication from the airline calling it a cancellation which means the airline isn’t trying to fudge a cancellation as a reschedule.

(Easyjet I’m looking at your massive flight consolidations im 2020 that were cancellaton and rebook to different flights,that you called “reschedules”. Even where a shift to a different flight 11 hours later was what you were saying was just a timing change. But I digress.. )

Lastly in case of any doubt, the flight number gavman99 travelled on was a different flight number which firmly makes this a cancellation.

So I agree with you this December 2021 case is not relevant as this one is a clear cancellation and reroute.

@JDB I’m struggling with the fact that it sounds like you’ve advised that for 17 years (2004-2021) the UK judiciary has consistently read AND in Article 5 as OR. Which indeed would create an interesting body of UK case law. And I take it, with all years except 1 in that period still being in the EU, no one spotted any difference with EU judgments? I know case law can cascade causing more bad judgments after an incorrect first one due to a failure to distinguish later cases, but surely there must be some other basis than a failure to recognise AND as AND and not OR?

I do think the OP should persist. But given the inconvenience suffered of being rerouted so much earlier, then should passengers stop being so accommodating and only accept a reroute departing later than their original flight, as most of these will arrive notably later, and never agree to a reroute departing any more than exactly 60 minutes and no more, earlier? Otherwise you seem to be saying compensation for what could be massive inconvenience, could go down the plughole.

[gavman99]

Thanks all for your contributions. I hadn’t quite appreciated the level of in-depth knowledge some people had on this forum so your input is very much appreciated.

I have no idea how long BA take to respond to these complaints but it’s only been a few days and with all the recent flight cancellations, I imagine they are being inundated at the moment. Regardless, I’ll keep you posted on how things progress.