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CEDR loss – BA ticket validity rule

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  • bobcharlton

    Unfortunately, I just received a CEDR loss against BA regarding cancelled flights to Tokyo and request for re-routing outside BA’s ticket validity window. My claim related to flights originally re-booked in July 2021 for June 2022 which were cancelled by BA in April 2022.

    I prepared my claim mainly using the template/arguments kindly shared by @stillinthesun + posts shared by @beardysuhz. Throughout, my claim I attempted to demonstrate that the dates chosen for my re-routing were reasonable and were not an open ended request (as per one of BA’s argument). The new dates chosen were at our earliest convenience which were subject to family commitments some of which had changed since the original booking ie an older son commencing full time employment and a younger son starting university + a preference to travel during Spring / Summer rather than Autumn/Winter (with the obvious requirement (not argued) of Japan being open to tourists!).

    I knew that seeking CEDR arbitration was a “crap shoot” rather than a “slam dunk”. Ultimately my decision came down to the specific arbitrator reviewing my case. They appear to have ignored most of my arguments and focused mainly on BA’s arguments about ticket validity and “immediacy”. I am somewhat perplexed by the arbitrator’s reference to 22 months and not a “rescheduling of the same trip”; especially as my requested re-routing was broadly within 12 months of BA cancelling my June 2022 flights. Even if Japan had been open to tourists between April – June 2022, it is unlikely that I would have requested re-routing before April 2023 due to family commitments / annual leave, etc. However, others may want to draw their own conclusions re: the timeline(s) for requesting re-routing if they face similar BA cancellations.

    I’m sharing the main points of the decision below to assist any others who may be preparing similar CEDR claims + to act as another warning that proceeding to CEDR doesn’t guarantee an automatic win (despite the strength of the legal arguments).

    Agreed facts
    • The customer and three others on the same booking were booked on the Flight.
    • On 16 December 2020, BA20 was cancelled.
    • On 31 March 2021, BA5 was cancelled, and the customer was notified by email the same day.
    • The passengers were rebooked onto BA5 on 11 June 2021.
    • On 7 May 2021, BA5 on 11 June 2021 was cancelled.
    • On 18 May 2021, the customer requested a Book with Confidence voucher.
    • On 8 July 2021, the passengers were rebooked onto BA5 from LHR to HND on 9 June 2022 and BA6 from HND to LHR on 27 June 2022.
    • BA5 on 9 June 2022 and BA6 on 27 June 2022 were cancelled and the customer was notified by email on 4 April 2022.

    Dispute
    • The customer claims re-routing return flights from LHR to HND in April 2023.
    • The company submits that it cannot allow a rebooking outside of the ticket validity such that it has no obligation to pay compensation.

    Reasons for decision

    1. The customer details that following the cancellation of BA5, scheduled to depart on 9 June 2022 and BA6, scheduled to depart on 27 June 2022, they attempted to contact the company by telephone to rebook and after an hour waiting, the line was disconnected, and they contacted the company on Twitter. The customer says that on 23 June 2022, an agent responded to them on Twitter to advise that they could look at rebooking options, but as the passengers’ tickets were only valid for travel for 12 months from the date they were originally issued, the company could not rebook them to travel in April 2023 as this was outside the ticket validity period. The customer details that they responded asking the company to reconsider on the basis of Regulation 261/The APR Regulations and did not receive a reply. I acknowledge the customer’s evidence of availability of flights for four passengers from London to Tokyo departing on 6 April 2023 and returning on 23 April 2023 and that this includes the company and two alternative carriers.

    2. The customer says that they raised a complaint on 23 July 2022 and received what they assume is an automated response on 5 September 2022 and following this, the customer says that they submitted a ‘Letter Before Action’ to the company’s legal department on 5 September 2022. In the claim, the customer confirms that they have not issued legal proceedings against the company. I note that the company has not raised an eligibly objection under the Scheme Rules on this basis.

    3. Regulation 261 provides common rules on compensation and assistance to passengers in the event of denied boarding, flight delays and cancellations. The APR Regulations ensure that the rights of air passengers set out in Regulation 261 remain the same following exit from the EU.

    4. The APR Regulations provide that in the event of a flight cancellation, the passenger has the right to compensation unless they are informed of the cancellation at least two weeks before the scheduled departure of the flight. While I note that the customer has not claimed Article 7 compensation for the cancellations, I am persuaded, on balance, that the customer’s evidence demonstrates that the company informed the customer of the cancellations at least two weeks in advance of each scheduled departure and as a result, I find, on balance, no basis to direct the company to compensate them for the cancellation of the flights under the APR Regulations.

    5. Article 5(1) of Regulation 261 says, “In case of cancellation of a flight, the passengers concerned shall: (a) be offered assistance by the operating air carrier in accordance with Article 8”. Article 8 deals with the right to reimbursement or re-routing and Article 8(1) details that passengers shall be offered a choice between reimbursement within seven days of the cost of the ticket, 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.

    6. Having carefully considered the evidence provided, I am not persuaded, on balance, that there is a basis to direct the company to offer the customer re-routing return flights from LHR to HND in April 2023 for the following reasons.

    7. The company relies on its General Conditions of Carriage and has included a link to these online, 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 says that while the tickets were initially issued on 7 October 2020, as supported by the ticket evidence titled ‘Prime issue tickets’, it has used the date of 24 July 2021 as this is the latest date that tickets were reissued to the customer in respect of the booking. This is also supported by the company’s evidence of the tickets issued to the customer on 24 July 2021. Therefore, under the Conditions of Carriage, the customer needed to rebook by 24 July 2022.

    8. I note that the customer’s submission regarding Article 15 and that 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. In addition, I am persuaded by the company’s submission that its obligations under Article 8 should be read alongside the General Conditions of Carriage.

    9. I acknowledge the company’s assertion that Article 8(1)(a), Article 9, and Recitals 12 and 13 infer an immediacy of action on an airline’s part in order to mitigate inconvenience to passengers. 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 would allow affected passengers to make informed decisions regarding their travel and specifically, whether they wished to request a refund or re-routing.

    10. I accept that Article 8 does not include a specific timeframe in which a passenger must accept one of the options stated therein. 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.

    11. I note that in its email of 4 April 2022 informing the customer of the cancellation, the company advised the customer to rebook onto the next available flight or claim a refund by logging into ‘Manage My Booking’. I am mindful that the option of re-routing at a later date is subject to the availability of seats and while I have received no evidence of the booking window available to the company at the time, I note that the customer did not contact the company to discuss re-routing until 23 June 2022, more than 11 weeks after they were notified of the cancellation on 4 April 2022. On 23 June 2022, the customer requested re-routing to travel on an outbound flight on 6 April 2023 and return on 23 April 2023, approximately 22 months after they were originally scheduled to travel (in June 2021) and as a result, I am not persuaded, on balance, that this amounts to a rescheduling of the same trip, but rather a new trip.

    12. Finally, I note the customer’s comments regarding the company’s handling of their complaint. The APR Regulations do not cover claims for poor customer service, and I am mindful that the customer is not claiming that the company has breached its contract resulting in monetary loss. I have not been provided with any other basis under which a passenger may be able to recover compensation for poor customer service, inconvenience, or distress and as a result, this aspect of the claim is unable to succeed.

    13. As noted above, 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. For the reasons detailed above, I am not persuaded, on balance, that the customer has demonstrated an entitlement to the remedy claimed and as a result, the customer’s claim does not succeed.

    For reference, BA’s arguments were:

    I note that Article 8(1)(c) of the Regulation (The Air Passenger Rights and Air Travel Organisers’ Licencing (Amendment) (EU Exit) Regulations 2019) states that following a flight cancellation, passengers should be offered: re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats

    However, it would be unreasonable for this to be open-ended, which would potentially allow the Passengers to claim for rebooking many years after the contractual relationship had ended. It should therefore be read alongside our General Conditions of Carriage.

    There are other parts of the Regulation that do have time limits, such as Article 8(1)(a), Article 9 and Recitals 12 and 13. It must be the case that the effect of Recital 13 and Article 9 is the “immediacy” of the options being offered Furthermore, Article 9 and Recitals 12 and 13 of the Regulation both suggest a level of immediacy and reasonableness which are relevant to claims under the Regulation.
    Therefore, a passenger could not be rerouted at a time of their choosing and rebooking must be done during the time of ticket validity.

    Similarly, where Article 9 provides passengers with a right to care without any mention of time limits, it simply can’t be the case that if a passenger’s return flight is cancelled that an airline can then be held indefinitely responsible for meals and hotel accommodation until the point the passenger decides to exercise their rights under Article 8(1)(c).

    In conclusion: I appreciate that I could take the MCOL option but as I do not want to spend £20k+ on business class flights; lodge x4 separate MCOL claims; incur court costs; wait for the case to be heard, etc; I have decided to move on & wait for BA to refund my AVIOS / cash paid for surcharges/taxes; albeit losing out on two (now expired) 241 vouchers. I expect I shall be chasing BA for another 3 months for the refund! At least, I will have the option of trying to book flights to Japan in 2024 (& most likely via another airline!!).

    Despite the “loss” – thanks for all the helpful advice provided on this site with special thanks to: @stillinthesun, @beardysuhz; @JDB, @meta, @LadyLondon, @points_warrior and @memesweeper and many others that I may have missed out.

    Richie

    I didn’t know that there are Arbitrators as bad as this.

    StillintheSun

    @bobcharlton
    Thank you so much for providing a detailed account. Information on losses is as useful as information on a win, so thank you for your great post. When I have a moment I’ll read it in full and see if there is anyway round the decision which may assist future posters. Noting @JDB’s more cautious approach it emphasises that those who can’t afford to lose the money upfront / or do not think that the cost represents value for money there are two options before CEDR to seek to enforce their rights at minimum risk:
    (i) If it is an avios ticket then buy a flexible ticket that can be cancelled free of charge or at an acceptable cost;
    (ii) Ask the arbiter to direct BA to put you on requested flights (This will not be done by MCOL. Specific Performance is a contractual remedy (infrequently granted) and this is not a contractual claim.

    Finally, three questions:
    (i) How long did the CEDR process take;
    (ii) If you are non-lawyer (lucky you) how difficult did you find the process?
    (iii) Did you get charged the £25 losing fee?

    Despite the loss I hope you are satisfied that you gave it a go!

    JDB

    I didn’t know that there are Arbitrators as bad as this.

    What is bad about this arbitrator? While we will all be disappointed for the outcome the OP has received, I think the arbitrator has provided a very accurate summary of the legal position. Obviously we don’t know all the facts, but where do you say the arbitrator has erred within the information provided above? Criticising the ‘judge’ is what Rebekah Vardy did, and look where that got her!

    He is right to note the 11 weeks between cancellation and attempting to rebook, something I have repeatedly suggested people shouldn’t do, although many say it is fine, but in my view it looks as though a pax is opportunistically trying to obtain more than the APR intend.

    meta

    You don’t have to pay for new tickets to go to MCOL, you can just work out an average. Once you win at MCOL then you can do with the money as you see fit. At MCOL they don’t ask you for ticket, just to demonstrate the value. Get three quotes.

    There are also agents which can book the ticket for the nominal fee and you pay later.

    You also have the option of invoking S75 with Amex (if paid on BA card)

    I wouldn’t have even mentioned the first cancellation and book with confidence voucher. When you booked for 2022, you were issued with new tickets. In my opinion this has weakened the case as it added irrelevant information that the Arbitrator had interpreted it as another rebooking of the original ticket issued in 2020.

    JDB

    @StillintheSun I will be interested to read your further reflections. EC261 came into force in 2004 when it wasn’t probably envisaged that countries might be effectively closed for months or years and flights to some destinations repeatedly cancelled. Judges and arbitrators have been able to use the flexibility of the regulation to interpret phrases such “at the passenger’s convenience” very generously and almost certainly to a greater extent than legislators originally intended. That’s good and shows the strengths of the law, but I think it is wrong (as many here suggest) to expect the regulation to provide (in BA’s parlance) an indefinitely open ticket so any decision maker always has to weigh the ticket validity vs passenger convenience, notwithstanding the fairly standard provisions of Article 15. Thus, the specific facts of each case – history of bookings/cancellations, how the passenger addressed those cancellations, arguments for rebooking a further year away, how the case is presented etc. are all critically important in any ‘balance of probabilities’ decision where judges/arbitrators effectively have a very wide margin of discretion before they could be rightly criticised.

    JDB

    You don’t have to pay for new tickets to go to MCOL, you can just work out an average. Once you win at MCOL then you can do with the money as you see fit. At MCOL they don’t ask you for ticket, just to demonstrate the value. Get three quotes.

    There are also agents which can book the ticket for the nominal fee and you pay later.

    You also have the option of invoking S75 with Amex (if paid on BA card)

    I wouldn’t have even mentioned the first cancellation and book with confidence voucher. When you booked for 2022, you were issued with new tickets. In my opinion this has weakened the case as it added irrelevant information that the Arbitrator had interpreted it as another rebooking of the original ticket issued in 2020.

    Do you have any evidence of Amex paying for refused EC261 rights under s75 as they do not form part of the contract between the parties, so Amex should have no liability? In those circumstances, I don’t think any card provider is going to rush to pay up. I think this recourse is a red herring.

    I don’t think the OP could have avoided disclosing the original flights, partly because you are obliged to give full disclosure, but also it would all have been on his FTV so it’s an unavoidable part of the story.

    meta

    The flights were cancelled, so S75 claim is valid if you ask for on or around the original dates. Of course rebooking for a year later would not be entertained, but you have to be smart and play BA at their own game and ask to be rebooked around the original date. Would they rebook the OP on JAL? Maybe, but I’d ask them.

    I have experience of claiming S75 with Amex on cancelled flights on non-EU airlines departing EU and getting a new ticket for a month later. Amex will just say to purchase a new ticket and remove the transaction once it hits the account.

    Regarding book with confidence voucher, I have been saying this for a while now, but it’s against IATA rules not to re-issue a new ticket and keep the old ticket number and PNR. Each time a flight is cancelled a new ticket number and PNR should be issued and you get fresh EU261 rights. Therefore, the old booking becomes irrelevant. What BA was doing with BWC and FTVs was perhaps on purpose in order to deny EU261/APR rights to passengers.

    JDB

    @meta you know best… what s75(1) actually says is:-

    “1)If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.”

    The APR are separate statutory rights so they don’t fall under the terms of s75. I say this only to avoid the impression you give that s75 is some silver bullet that can resolve EC261 issues, but card providers are smarter than that.

    There is no breach of IATA rules and, to be fair to BA, their BWC policies (+ status/voucher extensions) were not only very generous and simple but also compare very favourably to covid provisions put in place by other airlines. In any event, whatever conspiracies you want to theorise, if you are relying on the concealment of facts to boost your case, you have already lost.

    Paul

    @StillintheSun I will be interested to read your further reflections. EC261 came into force in 2004 when it wasn’t probably envisaged that countries might be effectively closed for months or years and flights to some destinations repeatedly cancelled. Judges and arbitrators have been able to use the flexibility of the regulation to interpret phrases such “at the passenger’s convenience” very generously and almost certainly to a greater extent than legislators originally intended. That’s good and shows the strengths of the law, but I think it is wrong (as many here suggest) to expect the regulation to provide (in BA’s parlance) an indefinitely open ticket so any decision maker always has to weigh the ticket validity vs passenger convenience, notwithstanding the fairly standard provisions of Article 15. Thus, the specific facts of each case – history of bookings/cancellations, how the passenger addressed those cancellations, arguments for rebooking a further year away, how the case is presented etc. are all critically important in any ‘balance of probabilities’ decision where judges/arbitrators effectively have a very wide margin of discretion before they could be rightly criticised.

    I don’t think anyone is asking for an indefinite validity but when the carrier cancels then rebooking within the available window of rebooking (ie 355 days in most cases) In my view the conditions of carriage cannot trump the law and this is clear, “at the passengers convenience” I’d certainly take this further.There are a great many examples of BA rebooking people more than a year after ticket validity.They did for me! My ticket was originally purchased in November 2020 and I travelled July / August 2022. At the time of rebooking the requirement was to fly the last sector within 1 year of the first sectors original date.So BA ignored their own CofC

    And of course what makes this a complete nonsense isif you are one of the many who books at -355, this decision means in principle, that should BA cancels 340 days later you have just 10-14 days to rebook within the validity of ticket. They could have many thousands of £s for almost a year and simply dump you. This is clearly nonsense.

    JDB

    @Paul I think you have misunderstood the position; it isn’t black and white as you present it. BA doesn’t state its CoC are definitive (and we know and they acknowledge they can and do extend ticket validity). Instead it argues, correctly, that EC261 isn’t a trump card that can extend validity indefinitely but needs to be considered alongside the CoC so the circumstances of each case are the deciding factor. MCOL would conduct the identical analysis. Yes, you can disagree with the decision, but the arguments are sound, so I’m not sure how you suggest the OP can “take this further”. Yes, he can go to MCOL but in the face of a cogent decision from a specialist aviation arbitrator (as BA will present it) there is a risk of it being considered an abuse of process. Seeking a second bite of the cherry because you don’t like a decision (rather than an error) is rather risky and will cost a fair bit of money in court fees – maybe close to £800.

    RTS

    was there no availibility to be rerouted for your “booked” dates or thereabouts i.e. 9.6.22 – 27.6.22? Or were you effectively chancing for a rerouting for 2023 as JP wasn’t opened to tourists during your original dates in June 2022?

    bobcharlton

    Finally, three questions:
    (i) How long did the CEDR process take;
    (ii) If you are non-lawyer (lucky you) how difficult did you find the process?
    (iii) Did you get charged the £25 losing fee?

    Thanks @StillintheSun for your feedback. To answer your questions:
    (i) Oct 17 to Jan 24 (additional 2 week delay requested by BA & granted)
    (ii) Non lawyer but work in the Tax world so used to tax regs, court cases, etc. I found your template / guidance very helpful to provide numbered statement with supporting docs. I was expecting a decision quicker than the extended 90 day deadline (Jan 25)
    (iii) haven’t been charged yet but presumably once I click “reject”, I may be charged for the “fun”

    I’m glad I gave it a go but obviously disappointed by the decision and focus of the arbitrator on BA’s arguments rather than my own.

    was there no availability to be rerouted for your “booked” dates or thereabouts i.e. 9.6.22 – 27.6.22? Or were you effectively chancing for a rerouting for 2023 as JP wasn’t opened to tourists during your original dates in June 2022?

    Japan didn’t re-open to escorted tours until June 10(?) / not sure when BA re-started flights to Tokyo(?) – as this was an aspirational family trip, the request for re-routing was “chancing” Japan would be fully open to independent travel by April 23. However, April was chosen as being the first practical date for my family’s availability/travelling circumstances. Yes: it was partly “opportunistic”, betting on Japan being fully open to tourists (without visa / package tour requirements) but also trying to utilise the two additional UK public holidays around Easter to add to a maximum 2 week annual leave availability. An earlier option could have been Xmas 22 but that wasn’t workable/convenient for other family reasons.

    In terms of 11 week window between BA cancelling my flights (Apr 4 22) and requesting re-routing (June 16 22), the main factor in play was Japan wasn’t open to packaged tours until June 10 so no point trying to request a “chance” re-route before then. I was also concerned that they could have been a further potential covid lockdown in Japan during the winter months.

    Based on BA’s arguments, I had a re-routing window from Apr 4 to July 23 22, none of which was workable/”convenient” for the passenger due to prior annual leave booked for June 22 (taken in the UK); ignoring the specific Japan “open to tourists” point. I chose the earliest dates at my convenience trying to work within a 12 month window from the date the flights were cancelled / although trying to juggle with the full re-opening of Japan to tourists.

    I understand the “greyness” to at the “at a later date at the passenger’s convenience” & my CEDR decision highlights the “downside” of requesting a later date of 12 months from cancellation under APR; ignoring any mitigating circumstances to my particular case re: Japan re-opening (not argued in my claim); family availability/convenience, etc. Having followed similar threads over the past 18 months, it’s frustrating BA have “won” based on their ticket validity / “immediacy” arguments and I don’t have the funds/inclination to pursue at MCOL (I agree with @JDB’s points).

    points_worrier

    A few observations from me. This does highlight that these cases are not open-and-shut, and that there is always risk involved.

    “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 would allow affected passengers to make informed decisions regarding their travel and specifically, whether they wished to request a refund or re-routing”

    I agree. The ECJ have made it clear that the onus to offer this choice lies solely on the airline, and there is no obligation whatsoever for the customer to seek it out. Given they later note ‘the company advised the customer to rebook onto the next available flight or claim a refund by logging into ‘Manage My Booking’, it seems to me the Article 8 (1) choice of rerouting was never offered. Given it was not proactively offered as required, you could argue the 11 week delay should be to the detriment of the airline, rather than the consumer. Do note in point 10. that CEDR are saying that you did not act reasonably by waiting 11 weeks. If there genuinely was a choice offered on 4th April 2022, then I agree. I am not convinced there was however. This is the crux of the case it seems.

    ‘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 agree. I am not convinced the passenger was asking for an ‘indefinite period of time’ however. But… I do believe there is a theoretically indefinite nature to this – if the airline continuously cancels your replacement flight, you are due new flights pursuant to the most recent replacement flight. If you kept on getting rebooked on to a flight in 6 months time, and that new flight was cancelled again, this procedure could continue theoretically indefinitely. I do not feel this is unfair on the airline, as it requires ongoing cancellations for this scenario to arise.

    ‘I note that in its email of 4 April 2022 informing the customer of the cancellation… I note that the customer did not contact the company to discuss re-routing until 23 June 2022…requested re-routing to travel on an outbound flight on 6 April 2023 and return on 23 April 2023.

    This is where the claim fails for me. The flights of 6th – 23rd April 2023 were unavailable on 4th April 2022, when you were made aware of the cancellation, and therefore would not fall under the ‘subject to availability of seats’ proviso of rerouting at your convenience. You could try and argue, as per above, you were not pro-actively offered the Article 8 rerouting, and therefore you should be offered the flights available when you contacted the airline. But this has suddenly become a rather tenuous case, rather than open and shut.

    ‘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.’

    The CAA have made it clear that following a cancellation, the airline should clearly document their Article 8(1) choice, detailing ‘how the offer of a re-routed flight was made, and the rerouting options offered’, and the absence of this is ‘likely to result in the complaint or claim being upheld in favour of the consumer’. In a cancellation scenario, I would argue the burden of proof is on the airline.

    Overall because of the timings involved, and the fact the flights were not available at the time of cancellation, I probably just would come down on the CEDR side on this one. But only just. And not for the reason they said – which is that you did not act reasonably by not requesting rebooking for 11 weeks. But because the tickets weren’t available at this time.

    points_worrier

    Right, A few observations from me. This does highlight that these cases are not open-and-shut, and that there is always risk involved.

    “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 would allow affected passengers to make informed decisions regarding their travel and specifically, whether they wished to request a refund or re-routing”

    I agree. The ECJ have made it clear that the onus to offer this choice lies solely on the airline, and there is no obligation whatsoever for the customer to seek it out. Given they later note ‘the company advised the customer to rebook onto the next available flight or claim a refund by logging into ‘Manage My Booking’, it seems to me the Article 8 (1) choice of rerouting was never offered. Given it was not proactively offered as required, you could argue the 11 week delay should be to the detriment of the airline, rather than the consumer. Do note in point 10. that CEDR are saying that you did not act reasonably by waiting 11 weeks. If there genuinely was a choice offered on 4th April 2022, then I agree. I am not convinced there was however. This is the crux of the case it seems.

    ‘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 agree. I am not convinced the passenger was asking for an ‘indefinite period of time’ however. But… I do believe there is a theoretically indefinite nature to this – if the airline continuously cancels your replacement flight, you are due new flights pursuant to the most recent replacement flight. If you kept on getting rebooked on to a flight in 6 months time, and that new flight was cancelled again, this procedure could continue theoretically indefinitely. I do not feel this is unfair on the airline, as it requires ongoing cancellations for this scenario to arise.

    ‘I note that in its email of 4 April 2022 informing the customer of the cancellation… I note that the customer did not contact the company to discuss re-routing until 23 June 2022…requested re-routing to travel on an outbound flight on 6 April 2023 and return on 23 April 2023.

    This is where the claim fails for me. The flights of 6th – 23rd April 2023 were unavailable on 4th April 2022, when you were made aware of the cancellation, and therefore would not fall under the ‘subject to availability of seats’ proviso of rerouting at your convenience. You could try and argue, as per above, you were not pro-actively offered the Article 8 rerouting, and therefore you should be offered the flights available when you contacted the airline. But this has suddenly become a rather tenuous case, rather than open and shut.

    ‘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.’

    The CAA have made it clear that following a cancellation, the airline should clearly document their Article 8(1) choice, detailing ‘how the offer of a re-routed flight was made, and the rerouting options offered’, and the absence of this is ‘likely to result in the complaint or claim being upheld in favour of the consumer’. In a cancellation scenario, I would argue the burden of proof is on the airline once the customer is claiming they were not offered their Article 8 rights, as per CAA guidance.

    Overall because of the timings involved, and the fact the flights were not available at the time of cancellation, I probably just would come down on the CEDR side on this one. But only just. And not for the reason they said – which is that you did not act reasonably by not requesting rebooking for 11 weeks. But because the tickets weren’t available at this time. It is not clear whether CEDR would have offered you the flights if you had chosen March 2023 for example – I do feel that forcing you to take your flights by July 2022 as BA argue would have been restrictive, imposing the ToC over their EC261 obligations. Otherwise flights booked 364 days before, and cancelled by the airline 1 day before departure would **never** have an Article 8(1)c) right, which must be perverse.

    points_worrier

    (this was following my tussle with BA over ticket validity issues, ultimately leading to all my costs for replacement ticket awarded)

    StillintheSun

    I have now read the arbitrator’s decision in full. For my part overall I think it is well reasoned and well written. If I were to receive this whilst I would be disappointed I would be pleased with the overall standard of decision making and certainly the written reasons for the decisions, superb value for £25. There is no appeal from CEDR (not to say I wouldn’t make a complaint if I saw a basis for it such as a terribly reasoned decision that went against me).

    At MCOL the test for appeal is either procedural error or coming to a decision that no reasonable judge could come to (such as an error of law or failure to consider evidence). This is a high hurdle for someone wishing to appeal to overcome. My primary attack on this judgment would be the line “On 23 June 2022 the customer requested re-routing to travel on an outbound flight on 6 April 2023 and return on 23 April 2023, approximately 22 months after they were originally scheduled to travel (in June 2021) and as a result, I am not persuaded on balance that this amounts to a rescheduling of the same trip but rather a new trip.” I think @Meta draws attention to this.

    I would assert that the arbitrator has fallen into error by inappropriately taking into account the cancelled flight of 11 June 2021. It is clear that the Regulations are concerned with the individual flight cancelled and not previously cancelled flights. Therefore the arbitrator should have considered the last flight to be cancelled (June 2022) vis-a-vis the new dates sought, namely April 2023. Those new dates are within 10 months of the cancelled flight that is relevant. The arbitrator noted that BA’s conditions of carriage had resulted in the ticket being issued on 24 July 2021 with ‘rebooking” acceptable to BA by 24 July 2022, a period of 12 months. Therefore, if the arbitrator had utilised the relevant cancelled flight under the Regs (June 2022) then he would and should have found that a failure to re-book the requested flights for April 2023, being only 10 months from the last and relevant cancelled flight was a breach of the Regs and found for the Claimant. It is clear that a request 10 months after the last cancelled flight is not an open-ended request to re-book and any reliance on this notion by the arbitrator was clearly erroneous.


    @jdb
    with regards to the fact that the Claimant waited 11 weeks to re-book I would assert that this time period is irrelevant. Even had the Claimant tried to re-book for April 2023 on the same day as BA’s notification of cancellation on 4 April 2022 by BA’s own evidence they would have refused this new date as BA were only prepared to rebook to 24 July 2022, just over three months from the date of cancellation notification. The arbiter has fallen into error by taking into account action or rather inaction by the Claimant that is of no causative effect.

    I’ve put the Claimants appeal case at its highest. I would clearly if this was a DJ decision not appeal (not worth it and every possibility I might lose given the very high hurdle to overcome). However, were I a claims farmer with hundreds of these complaints in the wings for consumers and this a High Court decision capable of shutting out many of my Claimants I would be very tempted to appeal on the basis that the decision maker had simply picked the wrong flight to consider.

    Were this a contested hearing under MCOL I would expect the judge to hear submissions as to which flight is relevant for time purposes. Frankly, I think my logic is better than that of the arbitrator’s. However, there certainly would be no guarantee!

    As you can tell I find this area of law interesting, partly because it is so self-contained and relatively untrodden. I know I have missed stuff above and will take a look later including @JDB query. @Meta’s assertion that there is no need to buy new flights before pursing BA is very sounds and I’m sure he is bored of continually correcting me on this. I’m erroneously importing my claim into the generality.

    points_worrier

    The arbiter has fallen into error by taking into account action or rather inaction by the Claimant that is of no causative effect.


    @StillintheSun
    , I am not convinced it was of no causative effect: @bobcharlton would not have been able to book the requested tickets for at least 5 weeks – had they tried on 4th April, BA would simply have been able to say the seats were outside the booking horizon (and therefore unavailable). By waiting without any timeframe, it is potentially saying there is no limit on rebooking. What if they had waited 20 weeks? 40? 500? I think it adds to the argument that it could place a potentially unlimited time liability on the airline if there are delays in requesting a reroute, no?

    I do agree the relevant flight for Article 8(1)c) choice is the most recently cancelled one. And the arbitrator seems to have chosen the original flight. The CAA makes it clear a fresh choice for Article 8 should be made should a rerouted flight get cancelled. However from BA’s point of view, and possibly their ToC, it is the first/original flight, if the subsequent reroute does not result in a reticket. This is where there is conflict arises and where Article 15 comes in to play, if you are severely limited in your choice of rebooking because your original flight was booked far in advance.

    points_worrier

    I would also add @bobcharlton, you are definitely due a refund of your flight (without any cancellation fees etc.). If you choose not to take this further, do make sure you ask for it. I am sure BA wont give it to you without asking!

    MingTheMerciless

    I won a very similar case at MCOL

    Flight booked Apr 20 for Apr 21. Cancelled March 21 and refused rebooking in April 22. I purchased a flexible flight in June 21 for Feb 22. Unfortunately I couldn’t fly my Feb 22 ticket so moved it to June 22 which was after hearing in May 22 where I recovered my costs.
    I’m unsure as to why people would go to CEDR over MCOL however I’m sure someone could give me an answer.

    Key point was the annual nature of travel requirements (Birthdays, conferences etc)

    StillintheSun

    @points_worrier
    The points you raise are entirely reasonable, however this is how I would deal with it:
    “The defendant seeks to erect straw men to shoot down. What matters are the facts that apply to this (emphasis) case.The flight that matters (emphasis) is the last flight that was cancelled in June 2022. The Claimant seeks an alternative flight less than a year from their cancelled flight. This is not a request for an open ended date. A rescheduled flight less than a year from the cancelled flight is utterly reasonable for the following reasons [insert as appropriate, I gave a few in my template]. These grounds are reasonable even before you consider the fact that this legislation is clearly drafted for the benefit of the consumer (see high protection of the consumer in the recital / at their convenience). BA seeks to assert that the Claimant’s tardiness in seeking to rebook his flight should be held against him. However the causal effect of any asserted failure by an individual is a fundamental consideration in English law. Had the Claimant sought to re-book on his selected dates he would have been refused in any event. Frankly, BA’s attempt to attach blame to the Claimant in this regard is ill founded.”

    Now, there are many arguments that may be made against me but (i) BA’s barrister in a small claim is likely to be instructed the night before the hearing (ii) the barrister for BA will have far less interest in this case than a sophisticated claimant (iii) whilst there are certainly corporate minded judges the majority at DJ level are relatively normal people often spending their professional lives acting for the man in the street (iv) there is a decent chance that BA (or another airline) have screwed the judge (or a family member/friend) over in the past (baggage/seating/cancellation etc).

    In this scenario a corporation such as BA / a bank / amazon have a greater hill to climb. Litigation for the consumer is not about a balanced academic discussion but about driving litigation home by providing a simple path through whilst diverting the judge away from theoretical side tracks.


    @mingthemerciless
    I’m happy to be shot down but I suspect you are in at least the top 5% of earners, or at least were should you be retired. The vast majority of the population could not afford to lose £500 at MCOL pursuing BA for their economy points flight worth no more than £1,000. CEDR enables that pursuit for no more than a £25 loss. Personally if I lost at CEDR. I’d go for BA at MCOL but I realise this is not an option for a lot of people for a variety of reasons.

    Lady London

    @StillintheSun I will be interested to read your further reflections. EC261 came into force in 2004 when it wasn’t probably envisaged that countries might be effectively closed for months or years and flights to some destinations repeatedly cancelled. Judges and arbitrators have been able to use the flexibility of the regulation to interpret phrases such “at the passenger’s convenience” very generously and almost certainly to a greater extent than legislators originally intended. That’s good and shows the strengths of the law, but I think it is wrong (as many here suggest) to expect the regulation to provide (in BA’s parlance) an indefinitely open ticket so any decision maker always has to weigh the ticket validity vs passenger convenience, notwithstanding the fairly standard provisions of Article 15. Thus, the specific facts of each case – history of bookings/cancellations, how the passenger addressed those cancellations, arguments for rebooking a further year away, how the case is presented etc. are all critically important in any ‘balance of probabilities’ decision where judges/arbitrators effectively have a very wide margin of discretion before they could be rightly criticised.

    @JDB you keep saying this but as we both know the 261 lwgislation states it is there deliberately to support [weak] consumers against [much more powerful] airlines and over time, the use and interpretations of the same law will evolve. Particularly in the UK where cases develop law rather than always being constrained by static law which may become out of date, as in some other countries. 261 has been remarkably resilient across years and circumstances now including covid. Your beef seems to be that consumers get any rights at all 🙂 .

    JDB

    @MingTheMerciless there are quite a few reasons why someone might prefer to go to CEDR (or FOS for financial claims) rather than MCOL. The first is obviously cost – for the claim in this post, you would have an issue fee of £455 and it will almost certainly go to a hearing, so that’s a further £346, total £801. Most people don’t want to roll the dice on what is a subjective judgement call that really could go either way, so max £25 risk at CEDR is quite attractive. CEDR doesn’t require you to have any knowledge, nor to make proper legal arguments as required for MCOL + CEDR is a much simpler and less intimidating process. MCOL requires tenacity, strong nerves and the ability to think quickly/clearly on your feet if the case goes to a hearing. It is clear from some posts asking what to do following cancellations that CEDR is a more appropriate route for them.

    Sometimes of course it’s best just to cancel, take the refund and rebook rather than leave things hanging plus all the inevitable stress.

    Lady London

    @bobcharlton this looks like yet another case where a CEDR arbitrator has used the right they have to literally ignore the law rather than “step out of line” against a big corporation. A judge must follow the law but an arbitrator doesn’t have to if they believe it will give a fairer solution if they don’t.

    Your flights were cancelled again and again. After the last cancellation BA was only prepared to rebook you at its convenience and within only a short period, not to your convenience which is your right that they ride roughshod over and ignored.

    Balancing your and your family’s commitments and the times of the year your party could travel, that could fit with what you planned to do on this longhaul trip, you worked out after having had to redo everything after BA cancelled your travel arrangements for the 4th time, that your convenient date was about 9 months after the last booking you had which had been cancelled. I don’t think it at all unreasonable that it could have taken you many months to replan not just weeks. And I don’t even really see why a rerouting even a bit longer than 12 months after wouldn’t have been acceptable either depending on your situation.

    The arbitrator just decided to completely ignore the statutory rights 261 gave you which do outrank BA’s terms and I don’t think there’s any grounds for throwing out those rights aa you were not being unreasonable. I think BA were lucky to win this one.

    The scary thing is that relatively, for CEDR, this arbitrator was quite good. She put together something that made sense within its own composition and as an interpretation of BA’s contract – but completely ignored the elephant in the room of the 261 obligations that overrode BA’s contract, that BA failed to provide.

    So you were a bit unlucky, this lack of required firm legal base to their decisions is why I’ll hardly ever recommend CEDR.

    polly

    Am sure l read on here that one of our readers actually challenged the CEDR decision, asking for a further review of facts. And won. Is this not possible for this case? Surely the challenge would be BA using the 1st cancelled flight instead of the 2nd later one. This is actually the flight in question. Surely this could be deemed incompetent on the part of the arbitrator. The judgement seems unfair ro me. Is there an appeal route for CEDR? Definitely worth it, l would think.
    Agree, there is the argument for taking a refund etc, but then you need to be prepared to pay far more for the new flights or cancel the trip. Unfair choice, in my opinion.

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