CEDR fail

[Amy C]

After 6 months I’ve finally got a decision and CEDR favoured BA regarding my ticket validity issue. The adjudicator seems to make no reference to EU/UK261 whatsoever. So p***ed off. For anyone who might be interested I’ve copy and pasted her judgement below.

Flight: BA59 from Heathrow Airport (LHR) to Cape Town Airport (CPT) on 8 February 2021 (“the
Flight”).
Agreed facts
  The customer purchased a ticket for the Flight.
  The Flight was cancelled due to the Covid-19 pandemic.
  The customer tried to rebook her ticket for a flight that departed after the validity period of her
ticket on the basis that she was told this was permitted, however, the company then told her that
she was not entitled to do this.
  The company accepts that the customer was given the wrong information but states that she was
also given the correct information about the expiry date of her ticket of seven occasions.
  The company has fully refunded the customer’s ticket.
Issues in dispute
  The customer wants the company to pay her  3,116.27 in compensation, which is equal to the
cost quoted by the company for a replacement ticket.
  The company apologises to the customer for giving her incorrect information, but says it has
complied with its terms and conditions by refunding the passenger’s ticket in full.
Decision making principles
  In order to succeed in a claim against the airline, customer must prove on a balance of
probabilities that the company breached its contractual obligations by not extending the validity
period of the ticket, or that they have some other legal entitlement to compensation.
  I have carefully considered all of the issues raised and the documents provided. Both the
customer and the company should be reassured that if I have not referred to a particular issue or
document, this does not mean that I have not considered it in reaching my decision.
Reasons for decision
1. On 8 October 2020, the customer purchased tickets for the Flight and a return sector. The Flight
was cancelled due to the Covid-19 pandemic and the customer decided not to apply for a refund
or a voucher for future travel, but to rebook at a later date. The customer states that the company
changed its policy and extended the validity period of its tickets so she did not rush to rebook,
but then withdrew this change. The customer has provided evidence to show that she was
advised that she could book a replacement ticket for travel up to 7 February 2022, but says that
when she requested to do so, the company refused. The customer claims compensation in the
amount she was quoted for a new flight, but says she would also accept an extension to the
validity of her original ticket, or a new booking.
2. The company explains that a customer’s ticket validity is based on the date of issue of the tickets
and for original issue tickets, this is one year from the original date the flights were booked and
ticketed. In the case of reissued tickets, where the itinerary is wholly unflown, then this is one
year from the date of reissue. The company states that, in this case, as the original ticket was
purchased on 8 October 2020, the original ticket was valid until 8 October 2021, and as the ticket
was never reissued to an alternative date, the ticket validity never altered and, in order to rebook,
travel must have commenced by 8 October 2021. The company also states that the customer
agreed to its terms and conditions when she made her booking.
3. The company acknowledges that the customer was given incorrect information about the validity
of the ticket and apologises for this, however, it states that this was after having been given the
correct information many times, and, after the customer was given the wrong information, it
quickly corrected the mistake.
4. In order for the claim to succeed, the customer must show that the company has breached its
terms and conditions by refusing to extend the validity of the ticket.
5. However, the company refers me to section 3(b)(1) of its General Conditions of Carriage which
states that:
“Unless it says differently on the ticket, in these conditions of carriage, or in any tariffs which
apply, a ticket is valid for travel 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.”
6. In view of the above, while I accept that the customer was given the wrong information about the
validity period of the ticket more than once, the evidence shows the customer was given the
correct information on many occasions and, on balance, I do not find the company’s mistake in
this regard undermines the General Conditions of Carriage and amounts to a renegotiation of the
contractual terms between the parties.
7. I understand that my decision will disappoint the passenger, but, on the balance of probabilities, I
do not find that the company has breached its contractual obligations by telling the customer that
the validity period of her ticket could be extended, then refusing to allow her to book a flight for
travel after the end of the validity period.
8. In view of this, I accept that the company has fulfilled its contractual obligations by providing a full
refund to the customer and, therefore, I cannot direct the company to extend the ticket validity,
provide a replacement flight or pay the customer compensation, and the customer’s claim cannot
succeed.
Decision
  The customer’s claim does not succeed.

[Richie]

Well comment number 4 is wrong.

[Lady London]

I’d MCOL it but I know you did not want to lay out even the lowish % fee for MCOL. As on the amount you needed to claim, it was a chunk of money you preferred not to spend when you felt CEDR should do the job.

It’s “Amateur Hour” at CEDR. This female is giving women a bad name.

I agree this adjudicator does not seem to have heard of EU261 and its UK equivalent. What she says about contract is mostly correct and she has spent a lot of time looking at that. I don’t think you’d even disagree with what she says on that, either.

But EU261 exists because airlines were staying within the terms of their own contract and treating customers unfairly.
Has this adjudicator considered that if BA cancelled your flight with, say a few days left of the ticket validity as you’d booked a year ahead, as is necessary for many award tickets, then BA’s terms would mean the ticket validity would immediately expire and so you’d be left with nothing?

Statute does overrride contract, and yet as you say this adjudicator does not seem to have looked at 261 at all.
So according to 261 *you* had the choice of a refund, or rerouting. Yet this adjudicator is saying because BA fulfilled its own contract terms by handing out a refund, you have no choice. This is incorrect, as the statute 261 overrides anyone’s contract terms and the statute definitely gives you the choice of a refund, or rerouting, not the airline.

I agree with practically everything she says about the contract. But she’s wrong as EU261 gave you better rights.

‘Mistake’ in contract is an excuse they can use, at contract level.
Regarding her point 6, afer BA told you you had until February 2022 to rebook, was that twice? how soon did they start saying something else, after that. In other words, how long a time was left until February 2022, after they withdrew their earlier statement, made twice, that you had until February 2022 to rebook. I am wondering if she feels you should have fallen in with what BA wanted at that point. However in my case, if I’d been given until February 2022 to rebook, reorganising takes time and may involve other people and I wouldn’t just have been able to suddenly accelerate rebooking just because BA changed its mind claiming “mistake”.

Also, how much time have you lost out of the time you could have rebooked in, according to BA, by going through CEDR and waiting for their judgment?

I also wonder why this adjudicator thought she needed to cover her a$$ by saying “if I have not referred to a particular issue or document, this does not mean I have not considered it in reaching my decision”. Sadly, I don’t think she means 261, as she’s not aware 261 exists and outranks BA’s ts and cs apparently.

Easy to say I know, but this is what I fear with CEDR. Out of sheer bloodymindedness I’d MCOL, but then I would anyway.

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

[StillintheSun]

How disappointing. If you cited EU261 in your CEDR claim then the adjudicator has completely failed to deal with that part of your claim. I would put in a complaint to CEDR on the basis that:
i) The decision is procedurally flawed in that the adjudicator had failed to deal the EU261 aspect of your claim;
ii) The arbitrator has come to an irrational decision that no reasonable adjudicator could come to.

I would then state that nowhere within the decision is EU261 considered by the adjudicator and that any specialist adjudicator should be expected to have a working knowledge of the regulations particularly Article 15 which specifically prohibits an airline curtailing a passenger’s EU261 rights by their conditions of carriage and yet this is exactly what the adjudicator has allowed British Airways to do.

I am not saying this is going to get you anywhere but it isn’t going to cost you anything and the stipulated time scales for dealing with complaints are tight so at least you’ll know quickly.

[memesweeper]

I think the reasoning you’ve been given doesn’t do anything to suggest you’d loose at MCOL. Doesn’t mean you’d win, of course, but CEDR appears to have just ignored the relevant law.

Lady London wrote:

This reply was modified 14 minutes ago by Lady London. Reason: to annoy JDB.

🤣 🤣 🤣

[points_worrier]

@AmyC did you mention EC261/2004 in your arguments? Or just argue that they were previously allowing such validity changes, had told you this, and therefore should allow this now?
If the latter, I could understand the CEDR response. If the former, this is shocking!

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

[Amy C]

Lady London, I think it was a few days between being told I could book for Feb this year and me actually trying to, like you say I had to organise a few things.

I made reference a few times to EU 261 and yet it staggers me she hasn’t referenced it once yet HAS referenced the airline drawing to her attention their conditions of carriage re ticket validity as if it is *that* that’s the most important factor.

Then in section 8 she says the reason she can’t direct the airline to extend ticket validity or provide another flight is because they’ve refunded me! Indeed, they only refunded me to prevent doing so! They refunded me without telling me they were doing so and against my wishes.

No wonder BA behave with scant regard to rules when 99% of the time they seem to get away with it. I’m glad someone won a case against them this week at least.
I’m tempted to appeal this decision just to be annoying.

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

[Lady London]

Defo follow StillintheSun’s advice and appeal it, Amy.
Give it a day or two in case other posters can add anything.
The decision binds BA, but does not bind you.

I understand how discouraging this must be for you, and believe me I understand that as JDB pointed out, it’s not always wise to risk MCOL fees.
But maybe try an appeal at CEDR along the lines StillintheSun suggests, and then see.

[Lady London]

PS if you do appeal, mention the name of the UK equivalent of EU261. wondering if there is some loophole if that’s not correctly mentioned.

[TedL]

And also Article 15 as in @stillinthesun’s excellent post last week

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.”

[JDB]

@Amy C – not sure why my name has been mentioned in this thread before any comment, but I am very sorry to hear of this decision which appears poorly worded and partial.

However, for all the reasons set out in the thread “Lost at CEDR with BA – what next?” which concluded with the OP’s brother’s (a lawyer) advice I wouldn’t take this to MCOL. It will cause a lot of stress, cost and time for an uncertain outcome and BA will play the frivolous/vexatious card, that this case has already been decided by a specialist adjudicator etc. They shouldn’t, but they will.

I’m afraid I don’t recall the exact circumstances of your case, but from what I can gather here, BA refunded you without your agreement and you are seeking to undo the refund and invoke your UK261 re-routing ‘at your convenience’ rights. Unfortunately, the fait accompli gives BA the upper hand. What evidence was provided by you or BA in respect of any conversation or correspondence about the refund?

All that said, if you clearly stated you wanted your UK261 re-routing rights (and not a refund) to BA at each stage up to and including LBA and the CEDR claim and in the process that CEDR usually goes through seeking confirmation of the nature/summary/essence of your claim I think you would have strong grounds to complain to CEDR re the decision on the grounds of irrationality and/or negligence. This is not an appeal as suggested above; there is no appeal of CEDR decisions. If you have been consistent in asking for your UK261 rights, does the decision maker not mention them in any single place? I can see it isn’t in the conclusion, but is it mentioned anywhere else? This all matters. The phrase about taking everything into consideration is totally standard boiler plate stuff, but if you can show that it is in fact false and that you systemically raised 261, that this is fundamental and statute that supersedes the CoC yet is not mentioned etc., you will have a good case, but you will need to be extremely precise and analytical. Even if all the stars are aligned, CEDR get to mark their own homework…

If you do decide to go to MCOL, I believe a lot will hinge on the circumstances around the refund – telephone calls etc. so you need to look carefully at the transcripts and get someone independent to read through them to see what they understand from those conversations.

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

[StillintheSun]

@AmyC
For my penny’s worth I very much doubt that a District Judge would take your failure to accept the arbitrator’s decision as justifying a penalty against you or indeed as evidence that the merits of your case are poor. English jurisprudence has developed to create mechanisms whereby a refusal to attempt ADR (alternative dispute resolution) such as arbitration can incur penalties, usually in costs but a refusal to accept an arbitrator’s decision is not the same thing unless the parties have contractually agreed to be bound by the decision of the arbitrator.

Courts apply different evidential and legal tests from arbitrators. The backgrounds and qualifications of judges are often quite different from arbitrators. A District Judge (almost the lowest full time judicial post in non-criminal law) receives £115,000 per annum plus a decent pension. Whilst practitioners enjoy moaning about their competency I am sure that CEDR arbitrators will be on significantly less and there are a few hurdles to jump over before the State hands a person a six figure public salary.

If BA made any mention of the arbitrator’s decision then I would have a copy of it to hand. Failure by the arbitrator to even mention the relevant law in a breach of statutory duty case demonstrates its limited value, any, to any Judge. Claimant’s often win at court or at settlement following arbitration decisions that go against them.

Nothing I have said is meant to detract from @JDB’s sensible warnings as to the stress and potential cost of MCOL which each person has to weight up themselves as to what they are prepared to deal with.

The CEDR rules state that appeals are not possible but complaints are. At Court appeals can be made on the basis that the decision is irrational/without evidence etc. I could not locate the possible grounds for complaint on the CEDR website, someone has posted a link in the past but from memory that a decision was irrational was there as a grounds of complaint. It’s a tomato/tomaRto thing. Incidentally, at CEDR an accepted complaint seems to involve a review of the decision by a senior arbitrator and then possibly an external lawyer.

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

[Amy C]

Yes, I meant I’d reject it not appeal. I have just done so. I can’t face MCOL. Simply don’t have the time or the energy (or the funds to lose). Add the fact CEDR has found in their favour despite EU/UK261 has severely dented my faith in the system. Thank you to every person on here who advised me at one stage or another, you’re all wonderfully helpful. I have the same situation with a RAK flight BA are refusing to even engage with me on. I requested deadlock letter in mid Feb after lodging a complaint and they still haven’t even responded. However, I’ll just rebook under their CoC rather than go through CEDR again. They win.
They win simply by being obstinate, refusing to acknowledge and parroting the same tripe on the occasions that they do.
They are getting away with outrageous breaches of rules and regulations and appalling customer service with impunity.
StillintheSun I am copying and pasting your experience into Word should I ever need guidance in the future. Thanks for taking the time to write it all up.
BA 1 Me 0.

[StillintheSun]

@Amy C
No problem at all regarding the write up. I hope people find it helpful particularly the suggestion that you need to be collecting your evidence (such as availability and cost of requested flights) as you go along. Amy you really should not feel bad about CEDR going against you. All litigators have experience of good cases that have been lost and terrible cases that have been won. There are always factors outside your control. Just using the scheme will have provided you with a more knowledge and experience when the next fight comes your way. Do get back on the horse in the future!

Although there may be reservations about the potential quality of CEDR decisions, for the passenger it offers an good, comparatively efficient, low cost way to get A decision. Additionally, if you do not wish or are unable to purchase alternative flights and claim the cost you can seek a direction from the arbitrator for BA to put you on the requested flight which does enable those not in a position to purchase an alternative a vehicle to enforce their rights. Good luck!

[JDB]

@StillintheSun all you say makes sense, but I think your recent success may be making you over bullish! We are missing quite a few facts here to comment on the validity of the decision (and thus the basis to go to MCOL) and a key difference with your case is the issue of the initial refund and the specific circumstances around that which need to be considered first as it adds another layer of uncertainty. I’m not sure if those who regularly appear before DJs/DDJs in civil/family matters would share your confidence! CJs and up, yes.

If the facts warrant it, a heavy duty complaint is still a simpler safer route, albeit a long shot.

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

[Lady London]

JDB I remember Amy’s original thread well and she completely covered herself with promptly rejecting the refund, IIRC more than once.

This is why BA does such tricks : because there are enough fool adjudicators around and enough passengers who will not have the resources whether money or time or strength of mind, to fight them. Luckily, far far fewer fool judges and unlike arbitrators, judges are obliged to judge according to the law.

To the person that commented I always seem to take the negative view of BA, this kind of bullying and denying obvious customer rights is much of why.

[Lady London]

Please Amy complain or appeal or whatever it’s called – to CEDR on this decision. Make sure you mention the UK name of EU261-derived legislation as well in case there’s a technicality there that the arbitrator took as an opportunity to ignore the statute

There is a short time window in which you can raise the complaint.

[AJA]

I see a lot of references to EU261 in a lot of threads. I don’t know why people keep repeating this because it is technically wrong.

The regulation is actual E C 261, the C either referring to Community or Council, not sure which but the Regulation predates the EU’s formation.

If you want the full name it is actually:

Regulation (EC) No 261/2004 of the European Parliament and of the Council

But reference to Regulation (EC) No 261/2004 works well enough.

As for the post-Brexit UK equivalent it is enshrined into UK law via:

The Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019

There are other older Statutory Instruments that embeds EC261 into UK law but quoting the above is sufficient in any claim.

I would state something like Regulation (EC) No 261/2004 as adopted into UK law via The Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019 in any claim.

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

[Rui N.]

The C is for council, as you note further down in the full name. 🙂
2004 was 12 years after the formation of the EU though.

[JDB]

@AJA you are of course correct, but the shorthand people use here is well understood. What is more important is precisely how the regulations apply to each person’s case; it often isn’t simply a cookie cutter. Even more importantly, the distinction between UK261 and EU261 is going to get more important. While there are many attractions to ex-EU routings you may either lose your rights or not be able to enforce them in the UK.

[Amy C]

Lady London wrote:

Please Amy complain or appeal or whatever it’s called – to CEDR on this decision. Make sure you mention the UK name of EU261-derived legislation as well in case there’s a technicality there that the arbitrator took as an opportunity to ignore the statute

There is a short time window in which you can raise the complaint.

Already done LL. Was never in doubt. Not that it will change a thing but made me feel better.

[StillintheSun]

@Amy C
Well done for getting the complaint in. Let us know how you get on.

[NorthernLass]

Hi Amy – I’m pleased you are pursuing this as well. As far as I can see, the CEDR adjudicator has placed BA’s Ts and Cs above consumer legislation and this will only encourage BA to continue to deny people their rights. 3 years ago I had to go to CEDR for delay compo which BA was refusing to give, and I put in my claim a separate paragraph pointing out that even if BA was claiming to have adhered to their own Ts and Cs, this did not trump the law. Fortunately BA folded immediately so CEDR didn’t have that much to do in my case!