Downgrade from First to Business with BA

[JDB]

@sayling , what @lhar and I have both been saying is that your analysis isn’t correct and, more importantly, it’s not how these downgrade or ordinary rerouting claims with a companion voucher are dealt with at CEDR or at MCOL. The voucher, which in itself is not ‘free’ is taken by BA as a form of payment. In the broadest terms, if you buy one seat for 100k BA will sell you a second seat at 100k and accept payment in the form of the voucher. You are required to pay all the TFCs on both seats. Vouchers can’t be ‘traded’ in fractions so BA won’t pay downgrade reimbursement in the form of 75% of half or a whole voucher which you might not want anyway if it’s close to expiry, so in my example they owe you 75% of 100k Avios x 2 plus 75% of the non disbursed charges x 2. This is a well trodden path, much written about on this site for years. BA will often try it on, either offering the difference in Avios between the classes and/or saying there’s no refund on the second seat but they have to back off when pressed.

While it’s not required, it is anyway a good idea to get some underlying facts agreed with BA in advance so as to minimise the number of issues in dispute at the hearing. The calculation would be one of those.

[TGLoyalty]

@sayling what @JDB is saying is bang on and frankly the judge made a mistake if they said the voucher was worthless as that’s nonsense it’s value is clearly equal to the cost of the seat it allowed you to purchase via Avios.

You were due 75% of the Avios x2 chargeable for the downgraded leg(s) (obviously a court can only reward the cash cost of purchasing that many Avios and can’t compel BA to give you the Avios) and 75% of the carrier imposed surcharges paid.

[sayling]

Okay, I should probably have originally said in my first reply on this thread ‘you may face an incompetent judge who believes that the cost incurred by using a Companion Voucher is zero to the Claimant’.

What should one do (and I’m not the only one to have actual experience of such a judgement) if faced with this predicament?

I hope I never have to face the issue again, but it would be nice to have that advice on this thread.

Incidentally, the Judge in my case appeared to make two mistakes: the claim related to the downgraded outbound flight of a First out/Club return, booked during the 50% off Avios sale and using a Companion Voucher. Ignoring the voucher for the moment, I claimed 75% of the non-tax cash element for the whole booking, ie out and back, which – as BA said (incorrectly) it should be completely disregarded, as taxes – was not properly argued by BA and thus not pro-rated in the Judgement.

Or do I have that wrong, too, and I didn’t get as far ahead as I thought I did?

[AJA]

@sayling I havn’t read the entire thread but I think you can only claim downgrade reimbursement for the sector downgraded and NOT the whole booking. If it was a long haul flight then you should be claiming 75% of the Avios for the sector plus 75% of the non-taxable cash elements of the fare usually referred to as the YQ elements of a cash fare. Not sure how it works with a reward fare but I would work out what the actual APD is for a cash fare and deduct that from the cash you paid and claim 75% of that figure (assuming it was the ex-UK sector that was downgraded). And this should be for both passengers if you used a companion voucher for two passengers.

[JDB]

@sayling – I’m afraid that as soon as you start blaming this on an incompetent judge, all credibility goes sayling out of the window. A judge is not expected to know the difference between a companion voucher and a campanula.

It’s up to each party to make its case and for him/her to make a decision based on the evidence before them. Once a case has been decided, there is no time to start arguing anything and it’s inappropriate anyway. The issue of vouchers having value in these cases has been well established for some years.

I’m not sure why you took the case to MCOL rather than CEDR where you would most likely have won. MCOL makes it very simple to issue a claim but the case then needs to be managed throughout its trundle through the system and issues like the value of the voucher established up front. The judge cannot and will not be your nanny.

[sayling]

@AJA No worries, it all relates to a case heard last year. Effectively, despite claiming for the cash equivalent of the Avios value of the companion voucher used, the Judge decided that – because no Avios were actually spent in using the voucher – it had no reimbursable value.

I also claimed, in my original application, for 75% of the total YQ for the whole trip, not just the downgraded leg (a mistake on my part) – which the Judge awarded completely.

@JDB (and I see what you did there…) would it be more palatable if I had said, second time around, ‘you may face a judge who mistakenly believes…’?

I went to MCOL because I wanted cash, not Avios.

With no legal precedent about how the calculation of a companion voucher should be calculated, I’m at a bit of a loss thinking of how I could have persuaded the Judge his decision to deny that element of the case was wrong. I’m open to positive suggestions, that I’m sure others would find useful.

[JDB]

@sayling – CEDR works in cash rather than Avios, so the same as MCOL. I’m not sure whether the issue in your case was that BA was claiming you weren’t due any downgrade reimbursement, didn’t agree on any value being attributed to the second ticket or was generally challenging the quantum of your claim. From the information you have given, the question of the amount to be paid by BA came up after the judgment in your favour. The trouble is that at that point, its all too late to start having further argument. The point needed to have been made in advance, ideally agreed with BA – i.e. the court needs to determine the outcome, but if I’m successfully, please confirm the quantum of my calculation is correct. The argument re value of the second seat being identical to the first should have been in your Statement of Case and if challenged in BA’s Defence, addressed in a Reply. The judge would have understood if correctly apprised of the facts in the written and oral arguments.

[sayling]

@JDB A bit of two, a bit of three. They averred nothing was due for the voucher and that no cash was due, as that element of the fare was all ‘taxes’ – which was disputed in my reply to their defence. Unfortunately(?), BA refused to enter into any dialog over the submissions, so no agreement was possible.

Not having them in attendance probably didn’t help, though in other aspects didn’t hinder either.

[Ihar]

sayling wrote:

Not having them in attendance probably didn’t help, though in other aspects didn’t hinder either.

With BA not in attendance, it should have been a slam-drunk (for the right amount owed). As has already said, MCOL is a court – and works on arguments in law. Whilst it decides on the “balance of probabilities”, it is up to the claimant to convince the judge.

The judge is impartial – not on your side just because you don’t the same legal support as the defence!

[sayling]

@Ihar

Indeed.

So, for the benefit of others and myself (God forbid I face the proposition in future), what argument should have been used to get some reimbursement value applied to the use of the voucher?

[Lady London]

Not seeing why this is complicated.

Tried and tested approach seems to be calculate what’s due for the paid seat. Then claim exactly the same for the Companion seat.

The key question on any challenge to value is Would the Companion passenger have been allowed to board without those amounts of avios, cash and voucher being paid. Answer : no. Plus the Companion couldn’t have boarded on their own – travel of the principal seat person had to.be paid in order for the Companion to be added as a second ticket to travel.

Plus there is the question What would it cost to replace the Companion’s ticket, over and above the cost of the first person’s ticket and that’s surely not nothing.

It sounds like the judge got hung up on cost rather than considering the value of the Companion ticket and I’m not sure how this can be allowed to happen.

[Ihar]

Lady London wrote:

Not seeing why this is complicated.

Couldn’t agree more! You paid for X, you got Y. No idea why EU261 wasn’t just rubber-stamped, but otherwise as Lady London says it’s about the “value” – not the amount paid. If the amount (not) paid was even relevant, then I’m off to the supermarket to buy lots of BOGOF goods and then return the ones I’ve paid for (not the free ones) 😁

If Avios/241 vouchers have no value, please can I have a few million of each in compensation. They have no value after all. Slam dunk.

[sayling]

I did all this. And yet…

The Judge said no.

As for returning paid for items and keeping the BOGOF – that’s a bizarre way of looking at things, isn’t it?

I mean, if you ordered a £100 bottle of expensive champagne and got one free, but were instead supplied with an inferior version, worth £60, if there were legislation that entitled you to be reimbursed 75% of the original cost whilst keeping the inferior plonk, how much do you think you should get?

[Ihar]

Well it’s contract law. If you were offered £100 BOGOF champagne and got less, then the contract isn’t fulfilled. So technically anything up to 100% of the cost (before you consider damages, compensation – note IANAL).

My point was that you need to look at the “value” not the “cost” (to you, or the airline). Is a BOGOF “free” or does it have value to you and a cost to the supermarket/supplier. If it’s really “free” why not BOGAMF (get a million free). If a 241 has no “value”, please just give me some….

EU261 is a broad-brush sticking plaster to try and equalise the imbalance between airlines and customers. Penalise airlines, if you will. MCOL is a different beast.

My best guess, in your case, is that BA were confident they would win and you failed in your argument to convince the judge otherwise. I’ve submitted many claims to MCOL and all have been settled beforehand (usually on advice from their lawyers).

[JDB]

sayling wrote:

I did all this. And yet…

The Judge said no.

@sayling – I think we are going round in circles here. I set out the basic argument at the top of this page on 9 August. If you did as @lhar suggests, it explains why you lost because I’m not sure if I even understand his points, but they don’t add up to a successful defence. He has also fallen into the distraction trap of well, if the voucher isn’t worth anything, why not give me loads. It’s not the issue and while distracted thinking that, your wallet has disappeared.

There are at least three fundamental problems from what you have said:

1) you waited until after the decision to establish the value of your claim. That’s too late and completely the wrong time. You also didn’t get this resolved before the hearing.

2) you allowed BA to get away with the notion that the voucher was ‘free’ when it is not

3) you allowed the BA to get away with the notion that the second seat was for zero Avios which is both incorrect and reinforces 2). The voucher is accepted by BA as a form of payment equivalent to the same Avios paid by the voucher owner – i.e. BA allows you to cash in the voucher in exchange for which they match the Avios. It works the same way for a solo traveller – book a trip costing 100k Avios and they will accept 50k from you and the other 50k in the the form of the voucher.

Result: you received no compensation for the voucher

On the basis of the facts you have given, the judge didn’t make a mistake of law, nor make an irrational decision. He can only work with the facts/evidence provided by the parties. He is unlikely and isn’t expected to know anything about companion vouchers. BA is well versed in using the right words without crossing any lines.

There is a non-probative argument that suggests the companion ticket has full value in that the companion and voucher owner have the identical rerouting and compensation rights which wouldn’t apply to a passenger travelling free of charge. Equally, at Article 3(3) it states that the provisions of EC261 apply to a passenger travelling on a ticket issued under a frequent flyer programme which the companion ticket is – there’s no mention of ‘payment’.

[JDB]

@sayling – by the way, you are right about the BOGOF argument being dodgy! The clue is in the F which is precisely BA’s p*ss poor argument.

[Ihar]

Just for reference, I would not have submitted such arguments in court.It was just to highlight the value/cost.

[sayling]

The trouble I have with the assertions you make, @JDB, is that I did place a value on the voucher in my initial claim submission and pointed out (in my N180 submission) that BA failed to take into account the value of the voucher (and the surcharges, for that matter) in their calculations of the amount due.

In the Defence submitted by BA, they effectively tried to deny the voucher formed any part of the claim, by (in my mind) firstly stating that “The Claimant is the only person named as the Claimant in the Claim Form. The Defendant avers that the Claimant has no locus standi to bring a claim on behalf of another passenger” and then not mentioning the second ticket at all thereafter.

In my Skeleton submission, I rebutted their argument, stating that “The Defendant has failed to recognise in point 5 of the Defence that the amount paid by the Claimant for the Booking, made during a promotional 50% discount on Avios bookings, was 59000 Avios, £532.10 for Government, authority and airport charges (the Taxes), £800.00 for Carrier imposed charges (the Charges) and a Companion Voucher“.

I’m aware that assumptions should never be made, but I did assume that the Judge appointed for the hearing would have at least some exposure and knowledge of what a Companion Voucher was, after the matter was transferred/referred to Uxbridge County Court under the ‘Global Airlines Arrangement’, and after noticing the large number of cases, particularly against BA, being heard there on a regular basis.

All in all, I just don’t understand how I could have better established the value of my claim (except, perhaps, by expanding on that in the rebuttal point above), but I did make it clear that I was seeking a total of £1895 (I had already received 15,000 Avios from BA, trying to discharge their responsibilities) plus court fees, whilst BAs case was I was entitled to nothing more than 30,000 Avios (15k already received, plus 15k as compensation for the protracted dealings with Cust Services).

If we work on the basis that the First fare was 40,000 Avios and non-tax surcharges were £800 (return) for both of us, would you say I should have got 75% of (40,000*2) minus 15,000 already received, plus 75% of (800/2 – as it was only the outbound that was affected), totalling 45,000 Avios and £300? I used the cost of buying Avios from BA as the basis of calculating the cash equivalent, so that comes out to be £809 – total of £1109.

In actuality, the Judgement of “the court not being satisfied there was a quantifiable loss for the fact that the claimant used an Amex voucher allowing a second flight to be purchased without using, in effect, further Avios points” whilst missing the point that the surcharges were for return tickets, meant that I was only awarded £879. I did get full costs and the 15k Customer Services award; I guess I didn’t lose out too badly.

@Ihar The cost to buy something is not the same as cost to sell and the value of something is completely different – the reimbursement of the cost incurred for the original purchase is the basis for downgrade compensation under UK/EU261. Not the value to BA, nor the cost to them of providing something for free.

[Ihar]

@sayling – if you had just stuck to EU261 then the matter is resolved as part of it. You did something different, and then the loss of value is of most importance – to you, of being downgraded. Your loss is only worth a notional 75% as defined by EU261, not in contract law. There it’s up to you to demonstrate the loss.

Whilst EU261 is still applicable law, as soon as you stray from it you are (in most cases) relying on less generous law for your case. Unlike CEDR or similar, a court judge can only apply the law as you represent – they cannot make your case for you. You made a bad case, and probably fell into BA’s trap of being bamboozled with too many documents. Which happens to judges also.

I still don’t know why you didn’t go to CEDR and get your 75%??

[JDB]

@sayling – at least you got something out of your claim. All the relevant arguments to get the full 75% have been posted above. I’m afraid it was an incorrect assumption that the judge would know about companion vouchers; it’s always the case that you need to make your own arguments at MCOL. In your instance the voucher appears to have been treated as a BOGOF which it definitely isn’t. From what you have posted, you attributed a value to the voucher how you calculates that and without explaining why both tickets have the same value. The issues like locus standi are standard from BA and need to be addressed. Unless Uxbridge happens to be your local court, that’s not really where you want to have your case heard. It’s a home game for BA.

[sayling]

@Ihar it was all under EU261, no mentions of contract law or other legislation. I elected to go through MCOL under the belief that CEDR was more effective for Avios reimbursement and Small Claims for cash, which I wanted more. Where do you feel the case was badly made? How would you have done it differently?

@JDB I am fairly happy, as someone who has no real legal experience, that I did at least get something. Indeed, we both had reasonable flights, quite cheap when all things are considered and even got some cash back to make it cheaper. The move to Uxbridge was not something I was particularly enamoured about and did apply for it to be reversed, to no avail.

The only reason I’m flogging this proverbial dead horse (not the one at T5 First Wing, though) is because I thought I had covered the bases regarding the Voucher value and was still denied. There is so little online to refer to, that I was hoping some guidance on wording/action to be used could be offered for people who may face similar issues in future.

That is one of the reasons this forum excels – the expert guidance and help it offers both new and experienced users alike.

[BA Flyer IHG Stayer]

@JDB as you know about these things would it be worth a sentence or two early in a claim about the 2-4-1 on the lines of

‘I used an Amex 2-4-1 voucher which is earned by spending more than £ XXX on the co branded AMEX – BA credit card’

It gets the fact you have to spend money to get it and it’s not a free gift of sort from either AMEX or BA and so does have a value.

[JDB]

BA Flyer IHG Stayer wrote:

@JDB as you know about these things would it be worth a sentence or two early in a claim about the 2-4-1 on the lines of

‘I used an Amex 2-4-1 voucher which is earned by spending more than £ XXX on the co branded AMEX – BA credit card’

It gets the fact you have to spend money to get it and it’s not a free gift of sort from either AMEX or BA and so does have a value.

Yes, it’s definitely worth more than a sentence about a) the value of the voucher and b) the nature of the CV transaction although one needs to be careful how it’s presented to avoid any appearance of there being any novel argument, but more clarifying the position for the avoidance of doubt.

As you say, the voucher isn’t free as one needs to pay a £300 annual fee and currently spend £10,000 to earn a Companion Voucher. That voucher then becomes a form of payment / consideration accepted by BA. [to avoid the risk of confusion, it may be better not to mention that the companion ticket isn’t received on a BOGOF basis because BOGOF deals don’t require any form of consideration.]

Once you have the voucher, BA agrees either to match whatever Avios you have paid for a second ticket, in exchange for the voucher so the voucher is worth whatever Avios amount BA has matched. Equally, if you choose to use the CV as a solo traveller, BA doesn’t just give you a ticket for 50% of the Avios, it requires you to pay half in Avios and allows payment of the other half in the form of the voucher. The tickets are paid for in Avios, the voucher + cash. As far as I can see, neither BA nor Amex use the term ‘free’ for the second ticket and that’s not just because of taxes/fees.

If the second ticket were ‘free’, in theory the pax would have no compensation or rerouting rights which clearly isn’t correct.

[NorthernLass]

Although not strictly case law, it’s useful to know that other people have had recognition that the voucher is worth something when making this kind of claim:

https://www.headforpoints.com/2021/02/15/compensation-for-british-airways-downgrade/

[JDB]

NorthernLass wrote:

Although not strictly case law, it’s useful to know that other people have had recognition that the voucher is worth something when making this kind of claim:

https://www.headforpoints.com/2021/02/15/compensation-for-british-airways-downgrade/

Yes, the fact that others have won similar cases has been mentioned on this thread numerous times and, as you say, that is not case law and is no precedent, so if someone chooses to take this sort of case to MCOL, they need to make careful, precise arguments whilst avoiding giving the impression they are breaking new ground. BA’s argument is very simple and seductive and from reading some of the erroneous comments on this thread and the old one you have linked, it’s not entirely surprising BA chalks up quite a few wins.