CEDR loss – BA ticket validity rule

[StillintheSun]

I’m wide awake at four in the morning and so naturally I thought I’d give you my penny’s worth on prospects of success in cases where a consumer seeks a re-route within a year of a cancelled flight. @JDB and myself often come at these cases from different angles, myself from the consumer and @JDB from the airline. Professionally it is less likely that a lawyer (and certainly a barrister) has a purely even split of cases for both sides, many have split favouring one side or another. She’s the defendant’s go to, she’s a claimant hack etc. Happily for us, @LadyLondon is the consumer champion @points_worrier is probably the most balanced, @meta has a personal track history of wins and @mingthemerciless wonderfully skilled in gaming the system (my natural prejudice, not helped by watching Industry on the BBC) presumes he/she works/worked in finance). I have certainly enjoyed regaling commercial lawyers I know as to Creation’s complete incompetence. There are plenty more posters all contributing to the hive mind.

I found @JDB’s view on prospects on another post interesting. Each case will be decided on its own facts but on a situation with tolerably similar facts as this one (although the poster took less time to rebook) @JDB gave prospects of success at 60%. Funnily enough standing back and looking at these cases as a whole rather than each individually I would expect the consumer to win 60 – 70% of the time and therefore really not that dissimilar. Probably at the lower end of that scale before CEDR and towards the higher end of that scale at MCOL because of the ability to make oral submissions during the hearing should the Defendant try to lead him/or her down an unhelpful side street.

In essence were I running a book of cases for the consumer on an industrial scale I’d expect to lose one in three until my database of courts, judges and decisions proved otherwise. My claims company’s would need to be profitable at this strike rate. A 60-70% success rate is good for litigation. I’ll give a practical example. At the weekend I was talking to a friend who is an experienced litigator for financial institutions facing mass consumer claims of relatively low value. A quote: “Counsel gave us prospects of successfully defeating the claim of 90%. We lost. Who gives 90% prospects anyway. Counsel rarely stick their neck out for more than 70%” We then agreed that prospects of around 60% rather than 70% were more likely for litigation where there were clearly arguments going both ways even if one way appeared more attractive.

In essence I believe that these cases are worth fighting because their prospects are in a range of what would be considered good by lawyers. BA are operating having regard to factors other than the law. They know by forcing consumers to fight claims with “good” prospects many will give up at the first hurdle. Their tactic makes financial sense.

There is possibly a rude awakening for BA, or at least the reality will alter requiring a change of approach. There is already in the USA a bot that is capable of appealing parking fines on behalf of drivers enabling people to bring claims for very low cost and effort. It seems to me that within a decade this sort of self-contained, low value litigation will outsourced to AI vastly reducing the cost and effort to both sides. My prediction is that this is likely to lead to a wave of cases such as these against corporations and financial institutions because the effort, emotional commitment and cost will be so much less. We shall see! But for now if you can fight a case, at limited financial risk to yourself with only a one in three chance of losing then in my view that is case you should fight.

[Rui N.]

Just to note that US bot is way overrated. Guides to appeal parking fines, telling you what to write exactly where, have been around for 100 years.

[StillintheSun]

@Rui N.
That’s interesting the senior judiciary keep saying they want to automate the hell out of low value claims! Perhaps that bright future is further away than they hope 🙂

I thought of another thing that can be ripped apart by any sensible mathematician on here but let’s look at all this on a macro level at BA’s case book. We’ll ignore the really good cases (BA will pay them off straight away) and the really bad cases (these will die a death anyway). Let’s assume the vast majority of the cases have prospects of 2 in 3 in the consumers’ favour. Let’s attach an average value to these cases of £1,000 (possibly on the low side). Let’s say losing at Court costs £500 in court fees and for each case they take to court they have to stump up £500 for a cheap barrister. Leaving aside all the other costs (such as administration and cost of formulating legal documents). For each case they lose at court BA will incur a £2,000 loss, even when they win they are out of pocket £500 for Counsel’s brief fee. Therefore, every three cases run to trial costs BA £4,500. To just break even is unattractive as it will result in annoying a lot of customers for no financial gain. However, with a £4,500 loss for running three cases to trial BA must persuade a further 4.5 consumers with the same decent prospects of success not to pursue them. If the total group size is therefore 7.5 then BA will lose at trial 27% of cases, win 13% but needs to persuade 60% of consumers with decent prospects of success not to pursue them to trial even to financially break even.

It doesn’t take much of a percentage switch for consumers with decent cases to move from the give up to the fight category to destroy BA’s strategy 🙂

[yorkieflyer]

I’ve read this thread with interest and some sympathy as I won a ticket validity case with BA through CEDR as I’ve reported before. Rebooked from Xmas 21 to Xmas 22. The circumstances were similar but perhaps crucially not a second or third rebooking. Clearly Adjudicators while referencing the law take a balanced view of the “rebooking at a time and date of the customers choice” clause with BA arguing in my case and seemingly all others two key points. First, the t&cs on ticket validity and then if that fails, stating that the legislation never intended to offer any date in the future. We can argue whether this is right or wrong but the CEDR fails do seem to be in this zone.
I had one paid change at my request within ticket validity before BA cancelled the Dec 21 flights in autumn 21 and I waited till Jan 22 till the booking window was open before requesting Dec 22 flights to be rebooked.
The CEDR process is favourable to the claimant as besides only risking £25 you have 2 bites at the cherry which you must use effectively. After your written claim, BA responds, in my case refencing ticket validity t&cs, my voluntary paid change within validity and saying that they should not be obligated to offer an open ticket.
Once you’ve seen their argument I believe it is crucial that you address each of their points in your opportunity to reply. I said that I was not offered an alternative flight through manage my booking at the point of cancellation and it was extremely difficult to contact BA at the time and they were asking people not to do so, second I stated the exact dates I wanted which were within a year of the original flights and that we had traveled with BA using Avios at Christmas for a number of years previously and merely wished to take the same a year later. You as claimant have the last word.

[Lady London]

StillintheSun wrote:

@Rui N.
That’s interesting the senior judiciary keep saying they want to automate the hell out of low value claims! Perhaps that bright future is further away than they hope 🙂

I thought of another thing that can be ripped apart by any sensible mathematician on here but let’s look at all this on a macro level at BA’s case book. We’ll ignore the really good cases (BA will pay them off straight away) and the really bad cases (these will die a death anyway). Let’s assume the vast majority of the cases have prospects of 2 in 3 in the consumers’ favour. Let’s attach an average value to these cases of £1,000 (possibly on the low side). Let’s say losing at Court costs £500 in court fees and for each case they take to court they have to stump up £500 for a cheap barrister. Leaving aside all the other costs (such as administration and cost of formulating legal documents). For each case they lose at court BA will incur a £2,000 loss, even when they win they are out of pocket £500 for Counsel’s brief fee. Therefore, every three cases run to trial costs BA £4,500. To just break even is unattractive as it will result in annoying a lot of customers for no financial gain. However, with a £4,500 loss for running three cases to trial BA must persuade a further 4.5 consumers with the same decent prospects of success not to pursue them. If the total group size is therefore 7.5 then BA will lose at trial 27% of cases, win 13% but needs to persuade 60% of consumers with decent prospects of success not to pursue them to trial even to financially break even.

It doesn’t take much of a percentage switch for consumers with decent cases to move from the give up to the fight category to destroy BA’s strategy 🙂

That’s very interesting @StillintheSun. Shocking for a lay person like me to see how ruthlessly BA has calculated the net profit to them from refusing to accept their statutory obligations on a mass scale.

Though I suppose it’s similar to companies calculating how many people they will kill or injure because to eliminate health and safety risk completely is just too costly for the last few deaths or injuries.

[StillintheSun]

@Lady London
From what I’ve seen the cover up and/or cold calculation probably spans most industries and most state sectors. It’s just more deadly in some rather than others.

@Yorkieflyer
Apologies if you have already posted this elsewhere but it’s probably helpful for others to know when considering to give CEDR a go (i) the time that the process took (ii) the ease/difficulty/stress you experienced in navigating the process and formulating documents, particularly if you are a non-lawyer.

[yorkieflyer]

Thanks @stillinthesun. I obviously raised a complaint with BA initially which produced the refusal citing ticket validity. I then sent a letter before action and then followed it up with a reminder, neither got a response. I then decided to take the CEDR as whilst fairly sure of my case the expense and likely timescales of the legal route put me off.
The CEDR process is all online with a tracker showing the status of your claim and written submissions only. Claim was submitted start of March 22, state the background clearly and succinctly and state what resolution you want. The form asked for a monetary value, I put £0 but added in the notes that I wanted flights on certain dates which i detailed.
You then wait whilst they consider whether your claim is within scope of the scheme and then advise you. Next an adjudicator is appointed. You then are shown BA’s response which was basically a narrative of the booking history and referencing ticket validity t&c’s plus claiming that agreeing to my request was tantamount to offering to book at any point in the future. It all looked cut and paste and boiler plate stuff to me.
You then have an opportunity to respond to BA’s statement, this I believe is crucial as I said previously. The adjudication then follows and you get an email asking you to login and discover your fate. You see a written adjudication which in my case instructed BA to issue tickets at a time of my choice interestingly! This was mid June so ten weeks in all.
BA then rang me and asked when I wanted to rebook for and wanted to book me on BA code share flights with QR, it was fine, a bit of debate on availability but got more or less what I wanted.
I’m a professional but not a lawyer so used to following process which I found clear and straightforward.
Hope this helps anyone else pondering CEDR

[yorkieflyer]

My lengthy response just vanished!

[JDB]

@StillintheSun BA wins a much bigger proportion of CEDR/MCOL than factored into your calculations. A lot of cases are either meritless or hopelessly muddled/badly presented – some posted on this site seem sufficiently chaotic and angry that they clearly fall into this category. When dealing with time pressed DJs or arbitrators clear presentation of your case – the chronology, the facts and the law as it applies to those facts is vital.

Some websites and the odd poster here also give ‘advice’ that is either inappropriate for the facts presented, simply wrong or misunderstood by the claimant – in particular the idea that ‘at the passenger’s convenience’ means whenever you want because EC/UK261 ‘trumps’ the CoC which isn’t quite how it works. Some ask for totally unreasonable resolutions and ludicrous sums for ‘inconvenience’ which either can’t or won’t be awarded and detracts from the main case. .

Ultimately EC261 rerouting cases are a subjective decision between the two parties’ positions and the factual matrix. There are also lots of cases re delay/cancellation compensation where pax rely on something erroneous they have read on the internet.

Most companies obviously have a point at which they elect to litigate rather than settle partly as a matter of principle but also cost as the marginal cost is usually very small. There is one big insurer often mentioned here that actively pursues costs against customers who take them to MCOL as their solicitors proudly advertise.

[yorkieflyer]

Thanks @stillinthesun. I obviously raised a complaint with BA initially which produced the refusal citing ticket validity. I then sent a letter before action and then followed it up with a reminder, neither got a response. I then decided to take the CEDR as whilst fairly sure of my case the expense and likely timescales of the legal route put me off.
The CEDR process is all online with a tracker showing the status of your claim and written submissions only. Claim was submitted start of March 22, state the background clearly and succinctly and state what resolution you want. The form asked for a monetary value, I put £0 but added in the notes that I wanted flights on certain dates which i detailed.
You then wait whilst they consider whether your claim is within scope of the scheme and then advise you. Next an adjudicator is appointed. You then are shown BA’s response which was basically a narrative of the booking history and referencing ticket validity t&c’s plus claiming that agreeing to my request was tantamount to offering to book at any point in the future. It all looked cut and paste and boiler plate stuff to me.
You then have an opportunity to respond to BA’s statement, this I believe is crucial as I said previously. The adjudication then follows and you get an email asking you to login and discover your fate. You see a written adjudication which in my case instructed BA to issue tickets at a time of my choice interestingly! This was mid June so ten weeks in all.
BA then rang me and asked when I wanted to rebook for and wanted to book me on BA code share flights with QR, it was fine, a bit of debate on availability but got more or less what I wanted.
I’m a professional but not a lawyer so used to following process which I found clear and straightforward.
Hope this helps anyone else pondering CEDR

[Lady London]

There you go again @JDB. Representing the capitalist point of view.

Factually the default position in the law is that statute (such as 261) outranks Contract (such as BA’s Conditions of Carriage). So the starting point must be that 261 rights prevail.

Taking into account your very sound reminders that practically, your case gets very little time to be judged, and the human fact that judges are hard pressed and busy, you are absolutely right to remind everyone that it’s essential to organise your submissions and your arguments so they can be understood easily and that the law or required practice you are relying on to support your claim are referenced upfront. So that a quick read of a page or two, with your further detail also provided if needed, wiil enable a judge who hasn’t prepared, to understand your case.

So you should have to mess up or be unlucky in order for the judge to move away from the starting position of the 261 statute overriding terms which seek to restrict your statutory rights such as in BA’s contracts. In fact the drafters of 261 were so worried about this they specifically included text saying airlines couldn’t restrict these rights in their terms. Which is pretty unusual.

You seem to give undue weight to another principle of English law that remedies should be reasonable. In that, your position is that the limit of reasonableness should be whatever the airline has in its CoC or policies which, as above, has specifically been outlawed by text in the 261 statute, which has greater power. Your “reasonable”, is what the capitalists/ airlines think.

Now you’re also trying to frighten people by threatening the extremely rare position of someone having to pay the other side’s costs at MCOL. The small claims track at MCOL exists in large part, so that claimants of small amounts (currently up to £10k) are protected from this even if they lose. It’s extremely rare and unless your claim is completely without merit/vexatious, at small claims this is simply not a concern and costs won’t be awarded to either side, and people should not be frightened off from pursuing their rights by this.

[JDB]

@LadyLondon I’m not representing any ‘capitalist’ view, but the reality of how this works (and is expected to work). The suggestion which you repeat that EC261 overrides or “outranks” the CoC is just wrong; the two are considered side by side and the specific facts of each case matter. On your analysis, every rerouting case at MCOL/CEDR would automatically win.

The provisions of Article 15 are not remotely unusual. Nobody can, through a contract, deprive you of your statutory rights or eg their own negligence. Most commonly you will see this in everyday guarantees/store return policies on the receipt when it states “this does not affect your statutory rights”. It’s totally standard.

I’m not trying to scare anyone re costs, but encouraging people to make vexatious or meritless claims and giving false hope really doesn’t help anyone and actually does put them at risk. Each case needs to be considered on its merits not just blanket – go to MCOL (as yesterday re delay to SEA) with the added allegation that CEDR is somebody’s poodle, essentially on the basis they must be wrong because they who, unlike us, have all the facts from both sides don’t agree with you. Also, MCOL is a procedure which just isn’t right for everyone.

[Lady London]

@JDB re the Seattle case yesterday, my point was that if the OP was taking it further then there wasn’t much difference in effort and cost between CEDR and MCOL. So migbt as well go MCOL as less chance of a perverse (anti-law) decision with MCOL than with CEDR. Of course BA loves CEDR as more chance of them getting away with it as arbitrators are not required to follow the law.

Whether the OP was going to do that for the £260 at 50% compensation rate that looked to be what they would be fighting for would be the OP’s decision. But they did open by asking about pursuing it.

Of course airlines rely on deterring people from claims and given that the effort required that may be disproportionate foe a layman, objectively, pursuing £260 would not seem to make sense. Multiplying that by hundreds of thousands of valid claims that BA deters by handling so as to deter, of course that’s £millions cost BA avoids. Which is of course, sadly, what capitalists and their lawyers rely on.

[JDB]

@LadyLondon my point re the SEA delay advice (on a different thread) was just one example where if you actually read the initial post there was more to the rescheduling, such that more investigation was needed – a planned rescheduling that added added almost two hours to the flying time (departure planned to be 45mins later but arrival 2h35 later). That’s expensive so BA didn’t do it for fun. Before investing time/money, check it out.

If you don’t like the capitalist world, you should ask an Argentine about their socialist nirvana as you might see it. Wonderful for tourists, but truly terrible for ordinary people. It was great for many years as there were huge subsidies and handouts (ie votes purchased) but now the money has run out, it’s a total disaster for what was once the fifth richest country in the world.

[Lady London]

…a ‘planned rescheduling’ 48 hours before the flight. Would be a dangerous trend if BA could keep doing this. Which they doubtless would exploit. Just as the legions of times their excuse switches to ‘weather delays’ when reasons they were responsible for compensation for, were stated at the time to passengers and/or even in earlier correspondence on the claim.

[StillintheSun]

Here is another simple bit of maths to demonstrate why consumers should take claims to CEDR even if their prospects are relatively poor.

There are a 4,000 consumers who feel badly treated by BA. Their prospects of success at CEDR are a mere 40%. Their claims are worth an average of £1,000, which they will obtain if they win. If they lose the cost to each consumer will be £25.

Consumers’ financial recovery: 4,000 x £1,000 x 40% = £1,600,000.
Consumers’ financial Loss: 4000 x £25 X 60% = £60,000

Consumers net gain at CEDR: £1,600,000 – £60,000 = £1,540,000

Even if @JDB is correct in his view of prospects (which I do not believe he is) he is utterly wrong on a macro scale in advising the cohort of consumers as a whole not to bring claims at CEDR even if their prospects are poor!

[StillintheSun]

Let’s be a little cheeky and give another example.

Each meritorious claimant who does not bring meritorious claim to trial with 2 out of 3 prospects saves BA £2,000 (£1,000 compensation, £500 court fees, £500 cheap trial barrister’s fee).

@JDB is retired and goes out with a senior lawyer at BA for lunch. Said lawyer says to @JDB “You love a bit of geeky EC flight regs law, we’ll pay you £100,000 to hit the internet and put people off suing us.” @JDB says “no problem as long as you are buying lunch.” A deal is done.

[£100,000 / £2,000] = 50 consumers x 1.34 (to allow for the claims BA would have won anyway) = 67

I have not even taken into account BAs administrative costs.

Food for thought 🙂

[points_worrier]

@StillintheSun – Hah did make me chuckle! Why stick with BA? Why not Creation/Virgin/Curve etc. Mr X is still lurking out there…!

Seriously @JDB strikes me as a pragmatist who has seen it all before – both good and bad. I think we need a dose of that given some others talk of MCOL basically as a cash machine, all you have to do is put the form in. Although many cases will go that way, and easily, what we have learnt from @Jon and his experience with Creation is a MCOL claim can escalate pretty quickly…

[StillintheSun]

@points_worrier
I am being a little naughty in respect of @JDB but I hope playfully so. My personal opinion is his views on the law, whilst I do not agree, are extremely helpful. You need to know where the hurdles are to jump over them. My only concern is that the macro analysis demonstrates that most consumers should steam ahead when there is very limited financial risk and I worry that he may dissuade those that should pursue BA from doing so!

[dougzz99]

@StillintheSun I do enjoy some of your posts here. But in essence you’ve piled assumption on assumption and reached a conclusion. Basing any advice on that conclusion is very odd to me.

If assumption is the game I’d offer that from the BA perspective paying claims you believe have little merit would be short term gain at long term loss. Sites like this and many others would report that threat alone would see BA concede and behaviour is changed. You’re then facing further claims simply by having previously conceded claims you believe have little merit. I’d be surprised if BA were not doing some serious number crunching here based on real data rather than assumption.

[JDB]

dougzz99 wrote:

@StillintheSun I do enjoy some of your posts here. But in essence you’ve piled assumption on assumption and reached a conclusion. Basing any advice on that conclusion is very odd to me.

Spot on, but I felt sorry for him as I concluded that he must have had help from Liz or Kwasi to put those numbers together.

[StillintheSun]

@JDB 🙂 @dougzz99

I’m up early so I’ll take the bait. To anyone else thoroughly bored by all this just scroll past and ignore the sun icon in future.

Part 1 – The Question

Most outcomes are determined by large number of variables. However, by picking the significant ones we can at least get an overall view.

Some people work in areas where precision is everything, it is not acceptable to make decisions where information is available that has not been obtained. Often they are not working against someone actively working against them.

I’m a litigator, have been for 20 years. My opposite number is doing everything they can to defeat me. They have absolutely no intention of assisting me in getting a clear picture of all the variables. It is unacceptable for me professionally to say I just can’t help you, I’ve no idea because I just don’t have all the information. I must provide advice both tactical and otherwise with what I have, the good information, the questionable information and the potentially down right misleading. It my professional duty to do just that. One of the biggest complaints from in-house commercial lawyers who utilise outside firms (at least those that speak to me) is that they get several pages of waffle as to all the possible outcomes and pitfalls but no actual advice as to what legally is being positively advised despite the risks identified.

In these cases, I am a mere consumer, unlike BA I cannot possibly know the average value of a claim taken to CEDR, nor how many cases against BA go through CEDR. If someone on behalf of BA wishes to provide it, great I’ll utilise it but there a cat in hell’s chance of them doing so.

All my calculations demonstrate is that when the financial (and indeed personal) risk is so low as compared to the potential gains then generally you should give it a go. In my case under £400 (cancellations charges and CEDR £25) was at risk for the £4,200 I sought. Had I followed @meta’s advice only £25 would have been at risk for £4,200. I like a day out at the Races for my birthday. If there was horse where for a £1 bet I would receive £168 for a win and there were 40% prospects of winning I’d definitely put a bet on, nothing crazy mind you, a sensible fiver on the nose. I’d get £840 if I won or lose a fiver. I’d hopefully have a great time watching the race in any event cheering my horse on.

So before I move on to specific figures I’ll ask a direct question to @JDB and anyone else who cares to answer:

I have a 40% chance of winning my case at CEDR. I’ll have to fill out some documents and there will be some help off the internet should I need it. I’m a professional person, I have no fear of forms and I am sufficiently pissed off (rightly or wrongly) with the way I’ve been treated that I’m minded not just to let it lie. If I win I’ll get £1,000 more than if I just accept the refund offered (I don’t view that as insignificant). If I lose I’ll pay £25 and get a refund in any event. I’ve got a meeting in a couple of mins but I know you are a bit of a geek about this sort of thing, should I stick or twist?

[BA Flyer IHG Stayer]

Where does that £1k come from.

I didn’t realise CEDR could award damages or costs so surely your claim is just for the cost of the flights?

One thing I will agree with you and JDB and some others on is the need to be absolutely clear on what happened, when and what you are trying to achieve.

So many posts on here and other sites are so full of irrelevant waffle (paragraphs on how a special trip was ruined) and partial information (not giving airline, full route, date etc) or downright inaccuracies (saying they had a connection when they didn’t) it’s sometimes very hard to work out what went wrong and make the puzzles on 3-2-1 or the Krypton Factor look like a model of clarity!

And not helped by the tendency of some to jump in offering advice when the full facts aren’t known.

[StillintheSun]

The £1,000 is just for illustrative purposes and I’m simply keeping it consistent. I don’t know what the average claim value is at CEDR because I can’t obtain that information. It seems a reasonable figure when considering whether an action (taking a case to CEDR) is worthwhile, neither too small or too big.

From the posts on here I suspect there is often more than £1,000 at stake, particularly when what seems a long time ago we were discussing BA’s refusal to rebook cancelled points flights onto business class flights. BA wanted £14,000 to put us on the same business class flights that I wanted a year after cancellation. I paid £4,200 for Qatar flights and successfully pursued BA at CEDR.

You could of course use the actual cost of the new flight(s) sought in my example above but my point is this:
If the financial benefit to you of a win is many multiples more than than the financial cost to you if you lose then in something like CEDR the sensible advice is to go for it even if @JDB advised that you are more likely to lose than win. The prospects of success are not the only important factor when determining the action or inaction that you should take.

[StillintheSun]

@BA Flyer IHG Stayer
You are absolutely right about the need for clarity in your claim. @JDB to his credit is very helpful in directing posters about the need for this and especially leaving out extraneous information. Lead the decision maker clearly, logically and quickly to the outcome you are seeking.