CEDR loss – BA ticket validity rule

[BA Flyer IHG Stayer]

But your confusing the issue by even mentioning it.

You wrote

“If I win I’ll get £1,000 more than if I just accept the refund offered”

There is no £1k gain is there?

[Jon]

StillintheSun wrote:

To anyone else thoroughly bored by all this just scroll past and ignore the sun icon in future.

Not bored at all – thoroughly enjoying it 🙂

Just to chime in with my 2p. I’m inclined to agree with your assessment, @StillInTheSun. Having taken both BA to CEDR (and won, which cost them £10k’s worth of replacement flight) and Creation to MCOL (settled after hearing), I would absolutely go to CEDR for a risk of £25 and a potential win of £1000 at 40% chance. I’d probably even do it at 20%, hell even 10% just for the heck of it 😉 Assuming of course that I felt confident in having a strong case, and wasn’t just acting out of anger or indignation in the heat of the moment etc, and was prepared to be sanguine about it if I lost.

But I do think an important consideration is how much spare time someone has, and the value they place on that. I was fortunate to have plenty of free time I could devote to both my cases, and was willing to do so for the experience as much as anything else. Plus the principle. And I feel confident in my ability to write a clear well-structured argument. But I imagine many (most?) simply won’t have the spare time and so either won’t pursue it, or would end up putting themselves under extra pressure and stress trying to fit it in around other commitments. We shouldn’t underestimate the amount of time these things take up, not just in actually preparing documents etc but also the mental preoccupation – it does tend to consume you, I found, and one has to compartmentalise to avoid it taking over. I think also that if I had actually put a notional hourly rate on the time I spent on my cases, eg if I was sacrificing billable hours or taking time off work etc, the equation would be very different. Had I been time poor and had my MCOL claim been for a much larger amount, I might have outsourced to a solicitor, but the economics of that wouldn’t stack up in my case.

But all that said, having experienced both CEDR and MCOL first-hand, I think my advice generally to anyone would be Yes to CEDR if you have time, inclination, and a genuine case (and ability to present it clearly), but I would hesitate to rush into MCOL unless you really are willing to go the whole hog – as @points_worrier said above, things can escalate (not so much in terms of money, though there is perhaps some risk, but in terms of the time and effort the case will require of you – but do I regret it? Absolutely not! ;-)).

[StillintheSun]

@Jon
I agree with everything that you say. All potential litigants have to consider the time and emotional cost when pursuing litigation. Frankly, most commercial companies know that by stonewalling, a lot of people will not even begin litigating after complaining. Other companies will fight cases they know that their chances of successfully defending are low to deter others from seeking to take their cases to trial.

My father, not a lawyer and retired thoroughly enjoys meeting up with his local Tory MP (who he did not and never would) vote for and complaining about the NHS. So too whichever small claim he has on the go at any one time. Although sometimes I wish he didn’t call me about his £200 claims when I’m desperate to get something finished at work. he certainly would not have done either when working.

I wish I had as much interest in some of my case load as I do on this subject. However, this feels like a developing area of law and discussing it with others on here even when I disagree with them seems a healthy pastime 🙂

For my part I think its really helpful for others like yourself to describe your own experience in bringing claims. I know that Courts etc can be intimidating even for professional people (especially who have never been before in any capacity). Such information enables posters to make informed decisions as to what they want to do.

I have a bias towards CEDR because its cheap, requires far less work and is less intimidating even though I have far more experience litigating in the Court system and the decision makers are on a whole superior.

[AJA]

I, too, find this thread fascinating.

Perhaps I am cursing myself here, but I am fortunate enough not to have yet needed to go to either CEDR or MCOL for airline disruptions or, indeed, any financial issue. But I have pursued enough EC261 claims to know when I am in the right and when the airline is pulling a fast one. I have thus far had a 100% success rate in getting EC261 compensation. Not just for me but for family and friends too. Perhaps I should set up a business to help those who don’t want to do it themselves?

My attitude would be therefore that if I felt the airline had wrongly denied me my rights per EC261 and refused to negotiate further and that my case was strong, I would definitely pursue them either via CEDR or MCOL. It would depend on the value and the circumstances of the claim as to which route to take. I would not hesitate to do so.

As others have said you have to be concise and clear and avoid any emotional jargon in any claim; stick to the facts and present them logically and if you do then your chances of success are, in my opinion, greater than 40%

[StillintheSun]

Sorry @BA Flyer if I am being unclear.
Say I had used my points to book a business class flight with BA, the taxes/outrageous surcharges being £500 and the points 100,000 to see Santa in Lapland over Christmas. Let’s say those points at a penny each are worth £1,000. So the total value of the flight that I booked is £1,500.

BA cancel my flight for whatever reason and can only offer me a flight in Feb for whatever reason. Santa won’t see me in Feb so I ask for the exact same flights a year later as I believe I have a right under the EC Regs. BA tell me to bog off but offers me my points and cash back.

I really want to see Santa but the flights to buy (rather than use points) cost £2,500 and there is no points availability. I buy them and therefore due to BA’s breach I am £1,000 out of pocket so I successfully claim at CEDR.

When we first started discussing these cases the above was a very common scenario (not Santa) but the need to purchase flights more expensive than they were originally. All the £1,000 is doing is representing that cost due to BA’s EC Regs breach. It is simply demonstrating that for a potential £25 loss, if I win at CEDR I recover £1,000, a multiple of 40 and in my personal opinion worth going to CEDR for, especially if as I also personally believe the prospects of victory are 65% but even if they were 40% I’d take the shot.

Apologies if that is overly verbose and it feels like I’m teaching my grandparent to suck eggs 🙂

[Jon]

StillintheSun wrote:

My father, not a lawyer and retired thoroughly enjoys meeting up with his local Tory MP (who he did not and never would) vote for and complaining about the NHS. So too whichever small claim he has on the go at any one time.

Sounds like my perfect retirement! 😂

StillintheSun wrote:

this feels like a developing area of law and discussing it with others on here even when I disagree with them seems a healthy pastime

Completely agree – I’m sure we’re all learning a lot, or at least being exposed to different angles / points of view can only be a good thing.

StillintheSun wrote:

For my part I think its really helpful for others like yourself to describe your own experience in bringing claims.

Agreed. I was actually quite struck by how little there seems to out there in the way of first-hand accounts (MCOL especially). Plenty of advice articles from law firms trying to get up the Google rankings but almost no accounts that I could find written by actual claimants. Maybe everyone is so exhausted by the case that the last thing they want to do is write it up once it’s all over! Or maybe I was searching in the wrong place 😉 I do vaguely recall one CEDR account (maybe two?) published in the articles here on HfP, perhaps a year or two ago? But yes, more accounts of other readers’ experiences would be really helpful (and just interesting). Mine’s over on the Creation thread, for anyone who hasn’t already seen it 😉

[JDB]

@StillintheSun I’m not sure where you got the idea that I have dissuaded people from CEDR, when actually I have often provided information and ideas to fortify their cases. I have said some cases are weak (and some are complete try-ons) so that people are prepared as there are voices here that systematically say every case will win irrespective of the facts; it’s often even clear from the response they haven’t read or understood the facts. I have often advised against going to MCOL for rerouting cases given the cost of £801 (for a case of £5k – £10k that goes to a hearing) when the outcome in either instance is highly subjective and almost always binary. Fortunately, the number of these cases is greatly reducing.

I think there are two key elements missing from your analysis. One is timing – if your flights are say four months away (ie when you want to travel), you quite likely won’t get a resolution in time so you need actually to buy replacement tickets if you are serious, so that ups the ante considerably. The other point is how and when to approach BA (or any other airline). You need to ask for the right thing, not make concessions etc. While I know you disagree, I think that leaving the booking for eleven weeks was a critical factor in this case being lost – it’s what the arbitrator referred to as the difference between rescheduling the trip vs creating a new trip. The delay in doing anything at least risks giving that impression and a ‘new trip’ quite clearly isn’t what EC261 originally intended even if EC261 has been able to be used effectively during the pandemic.

One post mentioned bringing a case on principle but I think any even half decent lawyer would advise against that.

There is of course the option just to get on with life, avoiding the stress, time taken and uncertainty of arbitration/litigation. We had flights booked to Beijing for Easter 2020 cancelled, rebooked rather over-optimistically to September, obviously cancelled again. While aware of our rights, we didn’t think there was much prospect of China reopening and that even if it did, one wouldn’t want to be among the first tourists, so we cancelled for a refund of cash, Avios and 241. Likewise a trip booked to Buenos Aires for Feb 2021. We got BA to swap the oldest now unused voucher into a previously made booking to Mexico which had never closed. I preferred to have all the elements under my control without needing to contact BA and to book trips that might actually happen so we were able to use all our 241s very effectively at a very small extra cost. Obviously it was different if people had 241 seats in the 50% off sale

[Lady London]

JDB I thought your challenge to StillintheSun’s figures showed you haven’t done finance valuation jobs involving any level of ambiguity. Of which there are quite a lot in some professions these days.

Few things are known absolutely. There’s often a lot of information missing. But professionals in most businesses, and I’m sure this includes litigation and investment banking, will be able to indicate the likelihood and range of outcomes of a case, project or situation just on experience. If detailed information emerges to radically change the range of outcomes a professional first estimated (relatively less likely to happen), or to closer estimate the range of outcomes (far more likely to happen as work continues) the professional adjusts, and keeps identified the dependencies and knowns and not-knowns behind his current view.

For example there are many ways of valuing a company with only partial information. But by the time you’ve used several ways each with different incomplete information, often the same ballpark keeps coming up. And that turns out to be about right, when more is known. Despite ambiguity a range, often surprisingly narrow, of outcomes can be deduced. *Ambiguity is not an excuse to shrink from deciding to proceed.*

Some people self-select into professions requiring the psychological orientation to deal with ambiguity, and some don’t.

And after seeing a relatively low number of data points, often statistically, an outcome can be predicted with a known level of risk, as well.

The internet isn’t the place to exhaust every last piece of detail. If someone appears to have a grasp of their situation then what it looks like can be said. There is a poster or two I won’t reply to – on anything – because their track record is for not being able to take things in and remaining fixed emotionally. Other than that I will say what it looks like. But don’t confuse the way I put things across with what I really think.

[JDB]

@LL what I was referring to was the provision by some people of incorrect, copy and paste, knee jerk advice that ignores the facts provided in the original post. It happens all too often and is beyond unhelpful.

P.S. I have only been valuing companies (and fortunately well remunerated for so doing) for about 40 years but it is your prerogative, which I don’t hold against you, to tell me how ignorant I am on a number of levels.

[Lady London]

My comment JDB, was to say that your challenge to StillintheSun’s broad assessment of the probabilities of the % of cases that would be likely to be won, your challenge being that estimates and assumptions were involved and we didn’t have the complete data British Airways would have about claims on themselves, was unfounded for 2 sorts of reasons

– StillintheSun is a professional litigator with a lot of experience so his ballpark estimate is likely to be accurate
– there are many data points involved and over a certain number then statistically an estimate gets more and more accurate

Not my intention to insult you. I’m happy operating under ambiguity or where things are not fully known but from the beginning you’ve always had a hunger for more certainty.

More people are like you than me, and you are correct that my own blind side of being happy to proceed without the level of certainty many others need to be comfortable, means I might be more ‘gung ho’ than I should be in some cases.

But people are so frightened of challenging authority / a dominant player such as a big airline, my position here is to try to help people and give them courage that this can be done. Thank heavens for your presence here as you add facts to balance this. Though I would still say there’s a balance overall of not enough people pursuing their rights. Some of that is due to practicality and rational choices people make for themselves but too much is still due to fear.

[polly]

Always appreciate the reasoned debates and discussions on here. Well balanced, @Lady London and @JBD and a great source of guidance for those unsure whether to proceed or not with either CEDR or MCOL. Really great reading about peoples experiences whether they win or lose.
It’s especially useful when readers lay out their submissions step by step, emphasising points of relevant law. We are way ahead of the general public on here. Very lucky to have this forum, with so much support and information.

Keep up the great work you take the time to do. Thank you.

[dougzz99]

@Lady London

– there are many data points involved and over a certain number then statistically an estimate gets more and more accurate

The output gets more accurate as the sample size increases.

I’m not sure simply increasing the sample size increases accuracy when your entire input is assumption.

[hugol0ver]

I had a good read of the thread as this topic is really interesting. It’s pretty much accepted now, across the EU, UK (backed by CMA/CAA) that travel at the earliest opportunity covers other carriers. I remember Ryanair being told by the CAA they must rebook to other airlines during their strike. EC261/UK Article 8 “later date” is the most disputed aspect of the Regulation with not too much UK case law or CJEU cases to fall back on.

Firstly, the most surprising aspect is how BA glaringly violate the basic principles of Article 8c

(c)re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.

BA’s Standard Customer Guidelines states rebooking due to UN is -3/+14 days. https://www.britishairways.com/en-gb/traveltrade/bookings-policies/policies/standard-customer-guidelines

Is this lawful? Is it in the spirit of Article 8c) and if the answer to those is no, as it is my opinion. BA need to be pulled up.

The CEDR arbiter takes a view on BA’s Conditions of Carriage and the Passenger Rights Regulation, and it’s interesting that in all posts I’ve found here tonight, it doesn’t seem that CEDR have found BA’s -3/+14 days to be acceptable. Disputes seem to concern pax wanting to book beyond a year from ticket issuance. So why does it exist? Who would like to defend the -3/+14?

The only way that UK/EC261 has any relevance is if there is an irregularity, if the flights are as scheduled, you’re tied to the General Conditions of Carriage, any rebooking is per the fare rules. The Regulation creates direct obligations on the part of the carrier that only come into force if there is an irregularity. In all these cases the flights were cancelled, therefore, the fare rules and conditions are in the bin. The carrier broke the contract because it’s cancelled the flight and can no longer transport the pax on that time or date. Ticket validity is a key component in the fare rules, fare rules which only apply when there is no irregularity. I can’t see why ticket validity would therefore be enforceable. To me it’s irrelevant, only technically limited by the statute of limitations that govern all contracts.

Also ticket validity is a really stupid way of doing things for when it constrains when the ticket should be flown. Consider a pax that today 10FEB books a flight for 10JAN next year. The flight is cancelled on 09JAN. The pax has one month left to fly the ticket. This is unfair. It’s very similar to the OP’s situation. On 08JUL21 the OP’s ticket was reissued for travel on 09JUN22. There was one month left on the validity of the ticket to delay the trip. Plus, we know from the guidelines, the OP would only be permitted to change their dates by -3/+14 days.

I much prefer the Lufthansa interpretation of Article 8c. They ignore ticket validity itself, and base it on one year from departure where the decision of new flights must be made. The pax in my example would have until 10JAN23 to give the new dates and they can choose whatever dates are available for sale, as far as the system has loaded. If the flights kept getting cancelled, the time is added on. I know someone who last week flew a ticket issued in 2019 for travel in 2020 that kept getting cancelled over and over.

If BA had the rule like Lufthansa, it looks like the OP would not have any problems. When the cancellation dropped in APR22 the OP would have had until 09JUN22 to give the new dates, and travel would be granted for APR23 because those dates would be on sale. The rebooking would be free of charge and a new ticket issued, with new validity.

I mention Lufthansa because BA’s policy seems incredibly tight and LH’s seems very generous, so generous that it would make BA balk as well as the CEDR arbiter. BA believe the ticket validity defines when the ticket must be FLOWN and Lufthansa interpret it to mean when the ticket must be REBOOKED. Though weirdly, in the decision it seems BA use the Lufthansa language, when they really mean FLOWN. The flown interpretation completely shafts the pax. Nevertheless, Lufthansa have a one year ticket validly in their GCC, however its not enforced for irregularity….because there is…irregularity and EC261 kicks in. The ticket validity would only be relevant when rebooking a ticket with regards to the fare rules.

I can’t understand how they can both have such wildly varying understanding of EC261. They both can’t be right…

By the way, except for the most awful of Covid cancellations, would anyone here take issue with an interpretation that the rebooking (decision) needed to be done within a year from the original departure date, or maybe ticket validity. It would clear-up 95% of cases like this and would satisfy most pax. By either interpretation, the OP would be fine and got their April 2023 dates.