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Just been notified of a CEDR claim fail – was submitted March 2023.
I had flights booked April 2021 for travel LGW to RAK and back in December 2021.
BA changed flights several times, rebooked me into LHR – RAK and then cancelled November 2021 as Morocco closed its borders.
These were not opened until late February 2022, and due to other holidays and the need to link up with family members the first possible date for travel for me was mid May 2022. Issue was the beyond 1 year ticket validity.
I followed the wonderful template set by Still in the Sun ( thank you ) and felt that I had clearly and concisely set out my case for the earliest possible chance to travel which was only 5 weeks after the expiry of the ticket validity and was claiming for the cost differences in the rebooked flights that BA would not action for me.This is BA’s response.
The adjudicator has now issued their final decision. This is summarised as follows:
DECISION: Claim fails.
OUTCOME: £0.00.
NON-MONETARY TERMS: None.
DISCUSSION OF DECISION: 1. I have detailed above the chronology of the customer’s two bookings with the company. There is no dispute that the first booking was cancelled by the company due to measures taken by the Moroccan Government in response to the Covid-19 pandemic. I note that the customer makes no claim for compensation for the cancellation. 2. There is also no dispute that the customer received a full refund of the first booking, totalling £418.06. The customer subsequently made a second booking with the company to travel as detailed above and the customer travelled on these flights. The customer claims the cost difference between the two bookings on the basis that on 22 January 2022, the company declined to rebook the customer for travel in May 2022 stating that travel had to be undertaken within a year of the first booking. 3. The company relies on its General Conditions of Carriage and has included a link to these and the relevant extract within the defence. Condition 3b) refers to the ticket validity period and condition 3b1) details that a ticket is valid for travel for one year from the date it is issued. The company’s evidence supports that the tickets for the first booking were issued on 11 April 2021 and therefore, under the Conditions of Carriage, the customer needed to rebook to travel by 10 April 2022 and the customer submits that they requested to travel on 26 May 2022, well outside the one-year ticket validity period. I am satisfied that the customer would have had to accept the company’s Conditions of Carriage in order to complete each booking and I note that the customer was also advised by the company of the ticket validity period of the first booking, as detailed in the Conditions of Carriage. 4. Article 5 of Regulation 261 states that when a flight is cancelled, passengers should be offered assistance in accordance with Article 8. Article 8 details that passengers must be offered a choice between re-routing under comparable transport conditions to the final destination at the earliest opportunity, or at a later date at the passenger’s convenience, subject to the availability of seats, or reimbursement of the cost of the flight. 5. Bearing in mind the circumstances in which the obligations under Article 8 arise, it is reasonable to conclude that reimbursement or re-routing must be offered to passengers at the time of, or close to, the cancellation of a flight as this allows affected passengers to make informed decisions regarding their travel and specifically, whether they wish to request a refund or re-routing. 6. I accept that Article 8 does not include a timeframe in which a passenger must accept one of the options stated therein and I acknowledge the customer’s submission that rebooking should be at the passenger’s convenience. However, I am not persuaded that the absence of a timeframe means that the options in Article 8(1) are open-ended and remain available to a passenger for an indefinite period of time, notwithstanding the high level of protection afforded to passengers by Regulation 261. I find that where a contract does not stipulate a timeframe in which an action should be taken or a power exercised, such action or power must be taken or exercised within a reasonable time; the Conditions of Carriage stipulate that tickets are valid for travel for one year from the date they were issued. The customer argues that the ticket validity period should run for one year from the date the first booking was changed by the company when the tickets were reissued on 29 May 2021. However, IATA Resolution 735, provided by the company explains the validity of reissued tickets as follows, “the reissued (new) ticket has the same validity as the original ticket i.e. the reissued ticket has a validity of 12 months from the original (ticket) date of issue”. 7. I note that the company’s submission regarding Article 15 of Regulation 261. Under Article 15(1), obligations to passengers under the regulation cannot be limited or waived by a derogation or restrictive clause in the contract of carriage. However, given the duration of the ticket validity period, I am not persuaded, on balance, that this represents a restrictive clause. I am persuaded by the company’s submission that its obligations under Article 8 should be read alongside the General Conditions of Carriage. 8. In order to succeed in a claim, the customer must prove, on a balance of probabilities, that they are owed compensation under the APR Regulations. As a result, the burden of proof is on the customer, and it is for the customer to provide sufficient evidence to support their claim and entitlement to the remedies requested. For the reasons detailed above, I am not persuaded, on balance, that the customer has demonstrated an entitlement to the refund claimed and as a result, the customer’s claim does not succeed. Decision The customer’s claim does not succeed..The customer now has 20 working days from the date of this email in which to either accept or reject the decision.
My question is – do I just accept this a part of lifes experiences or should I follow up / MCOL?
BA has mucked you about and refused your reasonable request.
CEDR are very wrong in their decision here.
BA knows there is a chance they can win with CEDR, it is entirely unreasonable of them to be inflexible with ticket validity and play this game with CEDR.BA has mucked you about and refused your reasonable request.
CEDR are very wrong in their decision here.
BA knows there is a chance they can win with CEDR, it is entirely unreasonable of them to be inflexible with ticket validity and play this game with CEDR.Nobody is in a position to assert “CEDR are very wrong in their decision” without having all the facts before them. The issue of ticket validity remains very subjective and the specific facts of each case need to be analysed. There can be a tension between the Conditions of Carriage and UK261 and the adjudicator or judge has to weigh up the two sides and make a decision. There is simply no right or wrong decision in these sorts of cases and two different people could reach different decisions whilst acting correctly within their powers.
I think BA has pushed it to the limit and its actions are morally wrong, but that doesn’t need to make the CEDR decision wrong.
Anyway, the question was whether to pursue to MCOL or not. Personally I wouldn’t as there is a material risk you will end up with the same decision, having spent money on fees and invested a lot of time in making and pursuing the claim. Although they shouldn’t, BA will also say it’s an abuse of process /res judicata as a specialist aviation ADR procedure has already found against you and BA shouldn’t have to bear the cost of you having a second bite of the cherry.
I’m just expressing an opinion within the context of the information provided.
CEDR have implied by their comments that an open ended ticket validity was sought, this appears not to have been the case.
CEDR seem to be ignoring the unreasonableness of BA, and seems to be acquiring form for this, which is very concerning.
Seems very unfair.
It seems CEDR arbitrators may fall into the trap of going with whatever ‘big company’ says.I’d have thought circumstnces could easily have meant you should have been able to rebook a lot, lot later even than you were trying to.
Remind me again why you went CEDR and not MCOL?
Thank you for the replies.
@ LL – I went to CEDR as BA suggested this as I was not happy about their refusal to rebook. I effectively only had a window of 2 weeks when I had no other work/travel commitments and Morocco was open following its border closures.Hum.
Like probably @Richie, it’s clear BA has a better chance at CEDR than at MCOL in quite a few of the cases we hear about.So BA would suggest cedr, naturally
And despite what JDB seems to infer, cedr arbitration decision is not binding on any court including mcol. In fact even mcol decisions aren’t binding on any other court, and not even on any other mcol case.
I could well understand the stress of not wanting to pursue to mcol after the effort spent on this via cedr with this result, and it’s a pity, as it sounds like your submission was probably just as suitable for mcol, if you had followed @stillinthesun’s outline. But I suppose it might depend how much money you had to pay for your own reroute after BA basically abused you after they mucked you about and then hid behind one of their contract conditions that is not supported by the (higher-ranking) statute.
@LL. BA suggest CEDR because it’s the dispute resolution service they signed up to. You couldn’t really expect them to suggest MCOL. Idiots that then took superfluous cases (not suggest OPs case is one of these) to MCOL and created a potential liability for themselves would then claim BA directed them there.
CEDR is very good at forcing BA to accept the obvious, more complex cases will always have greater nuance and risk you may not get the outcome you’d prefer.
Oh dear I am sorry to read this. I think you’ve been unfairly treated by BA and CEDR.
I would say that 26 May 2022 is not “well outside the one-year ticket validity period.” particularly given the reissue of the ticket on 29 May 2021.
Of course you have to accept BA’s ticket validity rules when you book – we all have to. If we didn’t we wouldn’t be able to buy a ticket on BA.
BA’s own general conditions of carriage state that a ticket is valid 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.”
Given that BA cancelled the first flight because Morocco closed their airspace it was as impossible for you to travel within one year of date of issue as it was for BA to operate tge flight. Therefore I would say that the ticket should be valid for one year from the date Morocco reopened its airspace.
Therefore I would say that the ticket should be valid for one year from the date Morocco reopened its airspace.
@AJA – your commonsensical approach unfortunately isn’t how the law works and one also needs to distinguish between the contractual ticket validity, which is an internationally agreed matter, and the potential extension afforded by UK261; it is not feasible to establish some random date based on border closures which would then also affect residents differently to tourists.@LadyLondon – you can’t infer from what I wrote that any CEDR decision is binding; it clearly isn’t, but that won’t stop BA saying a follow on MCOL claim is an abuse of process and using the adjudication decision in a prejudicial way; it’s what their newbie munchkins are trained to do.
The issue is that we all agree BA has acted unfairly, but sadly that doesn’t help anyone. CEDR or MCOL isn’t like going to the Financial Ombudsman which considers financial contracts which are all governed by eleven Principles (on top of Rules, Guidance and outcomes), one of which is fairness. Air tickets also don’t benefit from the Consumer Rights Act 2015.
CEDR or MCOL, in looking at these ticket validity cases revolving around ticket validity are looking at a contract (the Conditions of Carriage) on one hand and the APR on the other and the interaction of that contract with UK261. It isn’t a consideration of fairness, it’s an interpretation of the two documents.
I’m not sure if I fully understand the situation from the facts provided, but to the extent I can ascertain them, I think the argument I would have pursued in this case is that in exercising their Article 8 rerouting rights, the passenger cannot be put in a worse position by the airline vs a passenger who cancelled and rebooked and that, not withstanding IATA resolution 735, this should not have been treated as a ticket reissue, thereby depriving the passenger of their normal contractual rights and UK261 rights, a deprivation that was entirely within the discretion of the airline to waive in order to comply with UK261. It is that aspect which is where BA has potentially breached Article 15. That would maybe change things at MCOL as it brings a new factor into play.
@LadyLondon – you can’t infer from what I wrote that any CEDR decision is binding; it clearly isn’t, but that won’t stop BA saying a follow on MCOL claim is an abuse of process and using the adjudication decision in a prejudicial way; it’s what their newbie munchkins are trained to do.
The issue is that we all agree BA has acted unfairly, but sadly that doesn’t help anyone. CEDR or MCOL isn’t like going to the Financial Ombudsman which considers financial contracts which are all governed by eleven Principles (on top of Rules, Guidance and outcomes), one of which is fairness. Air tickets also don’t benefit from the Consumer Rights Act 2015.
CEDR or MCOL, in looking at these ticket validity cases revolving around ticket validity are looking at a contract (the Conditions of Carriage) on one hand and the APR on the other and the interaction of that contract with UK261. It isn’t a consideration of fairness, it’s an interpretation of the two documents.
I’m not sure if I fully understand the situation from the facts provided, but to the extent I can ascertain them, I think the argument I would have pursued in this case is that in exercising their Article 8 rerouting rights, the passenger cannot be put in a worse position by the airline vs a passenger who cancelled and rebooked and that, not withstanding IATA resolution 735, this should not have been treated as a ticket reissue, thereby depriving the passenger of their normal contractual rights and UK261 rights, a deprivation that was entirely within the discretion of the airline to waive in order to comply with UK261. It is that aspect which is where BA has potentially breached Article 15. That would maybe change things at MCOL as it brings a new factor into play.
Are you sure that the CRA doesn’t apply to air travel? There was a rail and ferry industry exemption for the first 12 months, but I’m not seeing any equivalent for the airline industry.
@baec_newbie – I don’t believe CRA2015 applies to contracts for air transport as they are not considered ‘consumer contracts’ per The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 Package holidays (and maybe Linked Travel Arrangements) should be covered. There is a similar carve out in Scotland.
In any event I’m not sure the CRA would offer much assistance as a) the provisions of UK261 are vastly more generous than any remedy you might get under ordinary consumer law and b) you would be very pressed to argue that BA’s Conditions of Carriage represent an unfair contract when the terms are derived from international law/convention.
I don’t think one has enough information to give a considered view of this case but while a template kindly offered with the best of intentions was followed, that risks not using the best arguments germane to one’s own case. From reading the decision, it seems that BA has used its fairly standard argument but that, as above, the specific problems of this case weren’t presented to the adjudicator.
….I’m not sure if I fully understand the situation from the facts provided, but to the extent I can ascertain them, I think the argument I would have pursued in this case is that in exercising their Article 8 rerouting rights, the passenger cannot be put in a worse position by the airline vs a passenger who cancelled and rebooked and that, not withstanding IATA resolution 735, this should not have been treated as a ticket reissue, thereby depriving the passenger of their normal contractual rights and UK261 rights, a deprivation that was entirely within the discretion of the airline to waive in order to comply with UK261. It is that aspect which is where BA has potentially breached Article 15. That would maybe change things at MCOL as it brings a new factor into play.
That’s a very interesting point, many thanks.
Many thanks for the additional input. Sorry about the delay in acknowledging – descent of small Grandchildren. I felt I had set out as well as an non legal person could, my case.
This was synopsis of events
BRITISH AIRWAYS BOOKING P82A3P LGW TO RAK 03/12/2021 RETURN RAK TO LGW 07/12/2021
SYNOPSIS
11/04/2021 Flights booked for travel 03/12/2021, return 07/12/2021
26/08/2021 British Airways (BA) emailed changes- now to be LHR not LGW – same dates slight flight time changes
12/10/2021 BA emailed – flights partially cancelled and rearranged – return to LHR now 06/12/2021
10/11/2021 BA emailed – all flights cancelled.
22/01/2022 I ( Jennifer Goddard) called BA – I have a copy of the conversation requesting that the cancelled flights be rescheduled to May. BA Rep said NO. Travel had to be within a year of booking. I said I would check as I did not think that was correct advice from BA – rebooking should be at the passengers convenience.
25/02/2022 I called BA again having taken quite some time to research the position – which I will add as another evidence item, and again the BA rep said NO – specifically stating that BA had to comply by the IATA rules which would not let tickets be reissued beyond the 365 days of issue. Again I have a recording of this conversation.
The BA rep insisted that the only thing on offer was a refund – no replacement tickets, which under protest I accepted.
12/03/2022 Complaint lodged with BA – ref given 22879621
28/04/2022 As no reply from BA – complaint chased
02/05/2022 Further chase to BA – this time to Sean Doyle (CEO for BA) office.
03/05/2022 Final Response letter received from BA – go to CEDR if I remained unhappy.
ADDITIONAL DATE INFORMATION THAT IMPACTS ON THE CLAIM
No travel was possible to Morocco as the country was closed until 07/02/2022.
We were abroad 28/02/2022 to 23/03/2022
We had a booking to Marrakech 07/04/2022 to 12/04/2022
We had a UK family holiday booked 15/04/2022 to 21/04/2022.
The purpose of our December 2021 trip was to visit friends and family.
Given the above travel and time constraints, and the need to tie in with others the first opportunity to travel again to Marrakech was May 2022.and this was my claim
P82A3P – RE-ROUTING DATE CHANGE REQUEST FOLLOWING BA CANCELLATION OF THE BOOKING
REASONS WHY THE REQUEST WAS MADE
1. The EC Flight Regs have been incorporated into UK domestic law by virtue of European Withdrawal Act 2018 and The Air Passenger Rights and Air Travel Organisers’ Licencing (Amendment) (EU Exit) Regulations 2019 (APR Regs).
2. Article 8 of the EC Flight Regs makes clear that where a cancellation has occurred (as set out by Article 5) “passengers shall be offered the choice between:”
a. Reimbursement within seven days… or
b. “Re-routing under comparable transport conditions, to their final destination at the earliest opportunity”; or
c. “Re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.”
3. Paragraph 1 of the recital to the EC Flight Regs reads as follows “Action by the Community in the field of air transport should aim, among other things, at ensuring a high degree of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.” Clearly, in interpreting the EC Flight Regs high regard must be had to this purpose.
4. It is clear that British Airways therefore must offer all three options in the event of cancellation and that the choice is the passengers’ and not the airline’s. We sought a re-route, at a later date, once Morocco was open to travellers..
5. Comparable transport conditions should be interpreted as the same class of cabin. Our original tickets with British Airways were business class tickets and therefore our re-route cabin should also be a business class cabin.
6. Business class tickets on British Airways on our requested dates were available for purchase on the BA website prior to British Airways sending out their deadlock letter.
7. Article 8 expressly states that the re-route is at the passenger’s convenience. British Airways willingness to only provide an alternative flight within a year of the ticketing date (i.e. up to a year from 29 May 2021) is not in compliance with the EC Flight Regs because:
a. The Regulations themselves contain no such limitation.
b. Would run contrary to the aim of providing a high degree of protection for passengers.
8. At the time of the deadlock letter, if British Airways argument had been accepted we would only have had a two month period to take our re-route. However, we had chosen May 2022 dates for travel because:
a. The new 2022 dates were the first slot we had for possible travel.
b. We needed to tie in with others who were also travclling and with the people we were visiting.
9. The unlawfulness of British Airways’ position can be demonstrated when the following scenarios below are considered:
a. If British Airways cancelled passenger’s flight 11 months after they had bought their ticket, that passenger would only have a one-month period in which to re-route if British Airways “ticket validity” argument were accepted.
b. Passengers often travel for yearly anniversaries such as a birthday or wedding anniversary. British Airways’ position would prevent travel for the very celebration that the travel was purchased for.
c. Passengers are often restricted to taking trips during school holidays; for example a ski trip during the February half term. British Airways’ position would prevent the family taking flights at a time when they were able to take the trip.
10. Whilst we can accept that there should be some limit on the passenger’s convenience, for example a re-route five years after the cancellation may well be excessive. However, we were seeking a re-route as soon as we could possibly travel, (Morroco being closed until 7th February 2022, other trips away already booked.). It is submitted that our position is entirely reasonable and therefore British Airways were in breach of their statutory duty imposed by the EC Flight Regs (as incorporated into UK law) when they refused to re-route us on the dates requested.
10. British Airways telephone reps assertion that its duties under the EC Flight Regs should be interpreted by reference to their conditions of carriage must fail by virtue of Article 15 of the said Regulations. Were this a claim in contract British Airways conditions of carriage would be relevant. However, this is not a contractual claim but a claim for breach of statutory duty under the EC Flight Regs.
Article 15(1) reads as follows:
“Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by derogation or restrictive clause in the condition of carriage.”
Remedy Sought
11. In the face of British Airways’ refusal to re-route to our required dates we booked alternative business class flights. We seek this cost to be paid by British Airways given their breach of statutory duty which has arisen due to their refusal to perform their re-routing duty under the EC Flight Regs (as incorporated into UK law), less the accepted under protest refund already issued.If I have made mistakes in what I have submitted then thats a learning curve for me.
@baec_newbie – I don’t believe CRA2015 applies to contracts for air transport as they are not considered ‘consumer contracts’ per The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 Package holidays (and maybe Linked Travel Arrangements) should be covered. There is a similar carve out in Scotland.
In any event I’m not sure the CRA would offer much assistance as a) the provisions of UK261 are vastly more generous than any remedy you might get under ordinary consumer law and b) you would be very pressed to argue that BA’s Conditions of Carriage represent an unfair contract when the terms are derived from international law/convention.
I don’t think one has enough information to give a considered view of this case but while a template kindly offered with the best of intentions was followed, that risks not using the best arguments germane to one’s own case. From reading the decision, it seems that BA has used its fairly standard argument but that, as above, the specific problems of this case weren’t presented to the adjudicator.
Those Regulations seem to me to concern jurisdiction for bringing claims and enforcing judgments, not the application (or otherwise) of the CRA on consumer contracts.
In most cases we hear about on these fora, the CRA won’t help. But ss. 49 & 50 will sometimes be of use.
Therefore I would say that the ticket should be valid for one year from the date Morocco reopened its airspace.
@AJA – your commonsensical approach unfortunately isn’t how the law works and one also needs to distinguish between the contractual ticket validity, which is an internationally agreed matter, and the potential extension afforded by UK261; it is not feasible to establish some random date based on border closures which would then also affect residents differently to tourists.@JDB i know that normally tickets are only valid for 1 year from issue or first flight. But the point is that BA will extend the validity of a ticket beyond one year if you are ill and are unable to travel as long as you provide BA with a doctors certificate explaining why you can’t travel and when you are likely to recover to be able to travel again. That is clause 3b3 of BA’s general conditions of carriage. Therefore BA can extend the validity of a ticket if it wants to. The thing is given the extenuating circumstances of forced airspace closure preventing the passenger from flying BA simply refuses to do anything other than refund. That would be OK if it then offered the same airfare later on. It chose not to. Which is a commercial decision.
I am not saying my argument would be successful but it does seem that BA is hiding behind the accepted one year validity issue when it can and does extend tickets beyond one year when there are extenuating circumstances to do something different.
@AJA everything you say is valid, but the argument wasn’t made and neither CEDR nor MCOL (to an even greater degree) can help make your case for you. BA is hiding behind the ticket validity rule as they always do, so it needs to be addressed directly and tailored to the facts of each case.
Unfortunately, a lot of advice given here is very cookie cutter, and also often outdated, i.e. not based on more recent decisions. On HfP, we have seen many ticket validity cases won, but probably just as many lost. BA virtually always uses the same arguments and from my observations, even different members of the legal team copy and paste rubbish from some central database. Thus, to maximise your chances of winning, and challenge their seriously poor and inexperienced in house lawyers, one needs to be very precise yet creative both with the claim, but equally importantly with one’s actions following cancellation. I have bored on about not letting bookings ‘fester’ vs others who said to wait for as long as possible; that’s really bad to negligent advice. Here the pax waited for over two months to attempt to rebook and over three months for the final showdown by which time the pax has lost all their advantage, in pushing for a rebooking at fairly short notice and can’t appeal before travel. I believe the conversation would have been very different in Nov 2021 and whether the country was open to visitors is a red herring. That, in my view, compromised everything.
I make no criticism of the OP because there is no reason why they should know what to do in these circumstances, but the chronology is a really key part of these claims and it’s quite confused and incomplete – it’s missing key info provided in an earlier post, eg re the refund. The MCOL application forces a properly formatted chronology, but still requires the right input. If it’s hard for a judge/adjudicator to follow the story, it’s harder for them to find in your favour. The text has a number of elements from the template that either aren’t relevant or aren’t properly located or incorporated so it feels rather disorganised and doesn’t look as though it’s written by a passenger.
It does seem a very unfair decision. That said, the thing that immediately struck me in the OP was the line:
“2. There is also no dispute that the customer received a full refund of the first booking, totalling £418.06.”
I was going to ask exactly when the refund was offered and accepted, but I can see from the OP’s subsequent post that it was during their second call to BA, on 25th Feb 22, when the BA rep said that was their only option, and the OP accepted under protest.
I wonder whether there’s a line of attack there, if the OP is inclined to pursue further? Slightly surprised that BA’s defence at CEDR wasn’t simply “Claimant has accepted a refund, thus ending our obligations to them” (or maybe it was?). I wonder whether arguing that BA failed to offer the full range of options as required under regulation 261 etc, and instead forced an unsuitable option on the customer, would make for a stronger claim? (I’m not saying it would in this case – I have no idea – but it struck me that the refund is probably significant; the key learning point for anyone else finding themselves in this situation is to never ever accept a refund unless that is actually the option you want, no matter how much the airline tries to tell you that’s your only option).
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