CEDR marks its own homework UPDATE

[Jerry]

On March 28th I posted I had lost my CEDR claim against BA when they refused to rebook my Tokyo 241 50% avios flights citing to the 12 months ticket validity rule. My original post and the discussion is here:

https://www.headforpoints.com/forums/topic/lost-at-cedr-with-ba-what-next/

Another forum member suggested complaining to CEDR. There is no right of appeal, but you can complain under para (f) of the complaints procedure if you beleive the adjudicator has reached an ‘irrational interpretation of the law’.

In essence I argued that if the airline’s terms of carriage could over-ride EU/UK 261 then all they the airline had to do was over-write all the legislation with contradictory terms and conditions. Therefore for the adjudicator to accept that the airline’s terms of carriage could override the legislation was irrational.

Today I heard from CEDR that they had investigated my complaint, but not upheld it. I’m reproducing the response here to help others who are also making CEDR claims. BA sees lots of these cases and can defend accordingly, so it seems only reasonable customers should share their outcomes too.

CEDR response from CEDR in-house quality assurance adjudicator (their description not mine). They accepted the complaint was valid under para (f) which is their point 1 (omitted).

2. In considering this matter, my focus will be on the adjudicator’s consideration of the evidence and information provided. Further, it should be noted that it is not my function to conduct a fresh review of the original adjudication. I wish to highlight that CEDR’s complaint policy is not an appeals process for assessing whether an adjudicator has made an irrational interpretation of the law, the question is not whether I agree with the interpretation but whether the interpretation was one that no reasonable adjudicator could have come to.

3. In the letter dated 4 April 2022, the customer states that the adjudicator made an irrational interpretation of the law as they found that British Airways’ Conditions of Carriage override consumers’ rights under EU Regulation 261/2004 or the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019 (referred to in the decision, and hereafter, as “Regulation 261”).

4. In turn, I have reviewed the adjudicator’s decision. Firstly, I can see that the adjudicator found that Article 8(1)(c) of Regulation 261 does not provide an indefinite right to rebook at any time, on the basis that if it did that would mean that a consumer could rebook their flight years into the future. Indeed, the wording of Article 8(1)(c) contains a restriction on the right to rerouting on the basis of it being “subject to the availability of seats”. While I appreciate that Article 8(1)(c) does not set out a time limit for when rebooking can be made, as you have set out, I am nonetheless mindful that a general principle of contract law is that where a party has a right to do something under a contract at any time, they must generally assert that right within a reasonable period of time. Accordingly, I take the view that it was reasonable for the adjudicator to interpret that the right to rerouting under Article 8(1)(c) is subject to some form of time limitation.

5. Given the finding that Article 8(1)(c) does not provide an indefinite right of rebooking, the adjudicator found that it was appropriate to consider the time limit as the ticket validity period as set out in the Airline’s Conditions of Carriage. While I appreciate your position, I do not agree that this equates to overriding Regulation 261, instead, it is a finding that Regulation 261 should be read with and interpreted in light of the Conditions of Carriage. That is because the finding does not eliminate the airline’s obligation under Article 8(1)(c) to provide rebooking at a later date, but rather this interpretation says that rebooking may only be carried out during the ticket validity period under the airline’s Conditions of Carriage. In light of the fact that I believe that it is a reasonable interpretation to conclude that Article 8(1)(c) should reasonably impose a time limit to rebooking, I believe that it is also reasonable – in the absence of any definitive court ruling on the subject – for the adjudicator to have concluded that this time limit should be the ticket validity period as set out in the airline’s Conditions of Carriage. As a result, I take the view that the adjudicator did not reach a decision that no other reasonable adjudicator could have reached.

6. Overall, while I appreciate that you disagree with the decision of the adjudicator and I understand your frustration, it has been my role in this complaint process to assess whether or not the decision was one that no adjudicator could have reasonably made. Having considered this matter myself, I do not believe that the outcome was one that no other adjudicator could have reached. Therefore, I am unable to uphold this complaint.

The adjudicator is named, but I have omitted their full name. The initial are OS.

[yonasl]

In light of the fact that I believe that it is a reasonable interpretation to conclude that Article 8(1)(c) should reasonably impose a time limit to rebooking, I believe that it is also reasonable – in the absence of any definitive court ruling on the subject – for the adjudicator to have concluded that this time limit should be the ticket validity period as set out in the airline’s Conditions of Carriage.

Didn’t somebody just win an MCOL or CEDR case that was the exact opposite (a trip to somewhere in Africa and the logic was that it would be “reasonable” that if you cannot go to a seasonal event you may want the next year option?)

[JDB]

yonasl wrote:

In light of the fact that I believe that it is a reasonable interpretation to conclude that Article 8(1)(c) should reasonably impose a time limit to rebooking, I believe that it is also reasonable – in the absence of any definitive court ruling on the subject – for the adjudicator to have concluded that this time limit should be the ticket validity period as set out in the airline’s Conditions of Carriage.

Didn’t somebody just win an MCOL or CEDR case that was the exact opposite (a trip to somewhere in Africa and the logic was that it would be “reasonable” that if you cannot go to a seasonal event you may want the next year option?)

It depends on the specific circumstances of each case – the facts/chronology of events, how the law fits those facts, how you frame the arguments and the reasonableness/basis for your proposed remedy. We have seen some people here asking for too much and others being very reasonable, so it isn’t surprising to see successes and failures both at CEDR and MCOL although the same legislation is being applied.

[points_worrier]

The level required for the complaint here is whether the adjudicator has been irrational. This is a very high bar, and is not a re-run of a probability of whether they have been correct (on balance of probabilities).

If your requested flight was within 12 months of notice of cancellation of original flight, I would take to MCOL, as these are tickets available at time of cancellation. And so should be far easier to convince a judge. Although > 12 months could be argued on some circumstances, it is far more nuanced, and will be very case specific.

[Lady London]

‘Marks own homework’ is going to account for a lot of these cases where CEDR uses its privilege of being able to choose not to follow the law.

As another poster has said, it doesn’t matter that the original adjudicator ignored supporting law. On any review, the organisation is going to turn back flips and double somersaults to support them. On even really obscure grounds or if there’s a “chink of light” they can find that could possibly allow the original decision to be supported – so the organisation don’t look like idiots.

That is why I’ve only suggested CEDR about twice on here – when the law isn’t quite on your side.

In most cases of 261 on here the law is indeed on the side of the passenger – so why throw that advantage away and waste time and risk CEDR? The only reason can be that Business Class tickets are expensive so even the small % fee applied by MCOL is a lot of money to risk for many – which I get.

If your case is backed by the law then you only have to worry about making clear why your request is reasonable – as if it’s not then in the UK, the judge may get creative and find a way to disregard the law that’s been put there for you to get your rights against wealthy organisations with a history of abusing passengers, ie theairlines. But the chance of a clearly applicable law not being applied is very small in court. Whereas in CEDR…well, we’ve seen.

Not at all unusual for cases lost at CEDR to be won in court. If your case is reasonable then I’d defo consider MCOL same as @points_worrier has said. Though it’s a shame that airlines can rely on finance being difficult for many that would have a very good chance of winning against them.

[Aston100]

If you lose at CEDR, does this need to be declared when moving onto MCOL?

[JDB]

Aston100 wrote:

If you lose at CEDR, does this need to be declared when moving onto MCOL?

If you don’t tell the Court BA will and you also have a duty to disclose all relevant facts.

[JDB]

@Lady London as ever, it isn’t a matter of the OP having a “case backed by the law” as the the law is deliberately vague by using the term ‘at the passenger’s convenience’. It is up to the judge how (s)he interprets it/applies the law to these specific facts so it remains a subjective decision. This case involves a ticket from the 50% sale in Oct 2020 so it’s getting gradually more difficult to get these rebooked as they are going a bit stale.

It’s worth noting also that the judge is unlikely to understand much about Avios, 241, why a refund is so unattractive which makes things complicated as well when the BA submissions would be very simple.

• This reply was modified 54 years, 9 months ago by .

[points_worrier]

JDB wrote:

Aston100 wrote:

If you lose at CEDR, does this need to be declared when moving onto MCOL?

If you don’t tell the Court BA will and you also have a duty to disclose all relevant facts.

I’m really not sure much weight can be put on a mediation service where there is no route of appeal, and the arbitrator never speaks to you.
That is why you have the option to reject it, as a ‘get out’ for CEDR being held responsible. In Ireland, one mediator I used was binding on both parties, but you had the option of appealing to the high court.

[Lady London]

Exactly @JDB. A good reminder of what you must ensure your claim covers in your MCOL submission.

Though it’s the term ‘at the passenger’s convenience’ that is explicitly *not* ambiguous. It was written just like that by the legislators making it very, very clear that it’s the *passenger’s* convenience that the legislation makes pre-eminent, *not* the airline’s convenience. The abuses by airlines this legislation was brought in to correct, having previously been at airline’s convenience, this wording in the legislation “at passenger’s convenience” is perfectly clear.

If a defendant wants to attack the date, they have to find another place to do it as “at passenger’s convenience” is what the legislation was very deliberately drafted to state. And as 261 is statutory so overrides contract (eg airline terms/Conditions of Carriage), if a defendant airline wants to say a date of passenger’s convenience is not acceptable then they have to find an even higher principle of law to use to try to override this clear phrasing in 261. In the UK this might be a reasonableness test.

[meta]

The exact wording is actually ‘at a later date at passenger’s convenience’, not just ‘at passenger’s convenience’. There is not even a comma between date and at! You have to cling onto that and highlight it in your LBA if you go to MCOL.

• This reply was modified 54 years, 9 months ago by .

[meta]

JDB wrote:

@Lady London as ever, it isn’t a matter of the OP having a “case backed by the law” as the the law is deliberately vague by using the term ‘at the passenger’s convenience’. It is up to the judge how (s)he interprets it/applies the law to these specific facts so it remains a subjective decision. This case involves a ticket from the 50% sale in Oct 2020 so it’s getting gradually more difficult to get these rebooked as they are going a bit stale.

It’s worth noting also that the judge is unlikely to understand much about Avios, 241, why a refund is so unattractive which makes things complicated as well when the BA submissions would be very simple.

You’ll need to put monetary value on MCOL claim anyway. You don’t have to buy them actually if you’re comfortable that the prices will stay more or less the same. You can just work out the average. Once you win, you also don’t have to buy the tickets either, you can use the money as you please.

[JDB]

Lady London wrote:

Exactly @JDB. A good reminder of what you must ensure your claim covers in your MCOL submission.

Though it’s the term ‘at the passenger’s convenience’ that is explicitly *not* ambiguous. It was written just like that by the legislators making it very, very clear that it’s the *passenger’s* convenience that the legislation makes pre-eminent, *not* the airline’s convenience. The abuses by airlines this legislation was brought in to correct, having previously been at airline’s convenience, this wording in the legislation “at passenger’s convenience” is perfectly clear.

It isn’t “perfectly clear” nor is it supposed to be. The point of the legislation is to sort out new arrangements for a passenger whose flights have been cancelled via a refund, rerouting or rebooking. It was clearly not envisaged, when drafted, that flights might be cancelled for months/years on end or big countries closed; it was drafted for a passenger’s cancelled journey to be sorted out promptly. The bounds of the law are now being tested, but it is quite clear that it was never intended that the passenger should simply gain an open ticket from a cancellation. That would be too unbalanced.

I believe you are sometimes stretching this concept of the ‘passenger’s convenience’ too far and many judges will not see it as you do, so people risk losing unless their specific circumstances do justify a longer extension. EC261 is powerful, but isn’t a trump card, nor are the conditions of carriage irrelevant; they still form part of the factual matrix. Every case is different, so will have a different answer; good cases will win, bad ones will lose.

[Richie]

It appears CEDR are ignoring the orginal ec reg 261:2004 recitals 1,2 and 12.

[Abdul]

JDB wrote:

The bounds of the law are now being tested, but it is quite clear that it was never intended that the passenger should simply gain an open ticket from a cancellation. That would be too unbalanced.

I believe you are sometimes stretching this concept of the ‘passenger’s convenience’ too far and many judges will not see it as you do, so people risk losing unless their specific circumstances do justify a longer extension. EC261 is powerful, but isn’t a trump card, nor are the conditions of carriage irrelevant; they still form part of the factual matrix. Every case is different, so will have a different answer; good cases will win, bad ones will lose.

What do you think is reasonable?

Lufthansa are doing one year from original outbound date (so longer than ticket validity) it was also longer for 2020 tickets, getting on for nearly two years to decide and three years to fly.
AF/KL seem to be allowing rebooking +/- 30 days only.
LOT Polish are the same (see my thread).

Do you think LH is overly generous, do you find AF/KL/LO to be unreasonably short?

Some routes have been suspended, some are STILL suspended, do you believe it should be a certain period of time from re-commencement for rebooking with the same carrier or perhaps its irrelevant because they must rebook to any carrier. Rebooking to another airline is likely to be at a greater cost than the same airline and I believe a judge would be more obliging to a claimant who sought rebooking with the same contracting carrier.

Most airlines do not permit any rebooking to other carriers for what they term as a schedule change, pretty much everything more than a few days or at the very least beyond the 14 days for 261 compensation.

EU law was always governed by the precepts of a Member States contract law, for example, the limitation of 6 years in England and Wales to raise a claim, would surely be valid for claiming for rebooking- because you would not be able to raise the claim for the costs of new flights (or 261 compensation, duty of care etc) more than 6 years (5 in Scotland) post incident because its surely statute barred by that point?

• This reply was modified 54 years, 9 months ago by .