EC261 – Interest on MCOL claims?

[MKB]

I am in the middle of a current MCOL claim with Lufthansa. For various reasons — mainly that LH’s continued refusal to accept liability were driving my blood pressure through the roof and I buried my head in the sand for a long while after each rejection letter — I only issued court proceedings via MCOL just within the six-year time-limit.

As per various bits of advice on here, I included 8% pa interest on the claim. LH have accepted the claim for compensation for the delayed outbound flight but have rejected the interest on the grounds that I benefit from the delay in bringing the claim and with the following:

“In respect of the claim for interest, this is a claim for compensation under the Regulation; it is not
“proceedings…for the recovery of a debt or damages” within the meaning of Section 69 of the County
Courts Act 1984. It is averred that compensation under Article 7 of the Regulation is neither damages
nor a debt. It is a liquidated sum, fixed without reference to any actual damage sustained by the specific
passenger and payable without any need for wrong doing on the part of the carrier [Nelson –v-
Deutsche Lufthansa AG and RV Civil Aviation Authority (C-581/10 and C-629/10)]. Furthermore,
an air carrier cannot be said to owe a debt of compensation under the Regulation until it has conceded
liability, or a Court has made an order entitling a claim to compensation.”

Does anyone with legal experience of bringing these claims know whether these arguments are likely to stand up? Of note is that I brought the claim to LH promptly after the flight, so they had an opportunity to settle at that point and chose not to.

[meta]

It is for national courts to decide the interest as every country has different interest rates.

Indeed you can quote back to them their own reasoning. The judgment in the above case state the following (paragraph 59)

“In that connection, the Court has held, when interpreting Article 12 of Regulation No 261/2004, entitled ‘Further compensation’, that that article is intended to supplement the application of measures provided for by that regulation, so that passengers are compensated for the entirety of the damage that they have suffered due to the failure of the air carrier to fulfil its contractual obligations. That provision thus allows the national court to order the air carrier to compensate damage arising, for passengers, from breach of the contract of carriage by air on a legal basis other than Regulation No 261/2004, that is to say, in particular, in the conditions provided for by the Montreal Convention and national law (Case C‑83/10 Sousa Rodríguez and Others [2011] ECR I‑9469, paragraph 38).”

• This reply was modified 54 years, 4 months ago by .

[meta]

I presume you asked for interest in your initial letter or a few letters after they refused? They have seven days to comply with the legislation after which you can start charging them interest.

• This reply was modified 54 years, 4 months ago by .

[MKB]

Thanks meta. Very useful.

[MKB]

No, I didn’t ask for interest in the initial EC261 claim for compensation and expenses, nor in the letters in the letters in subsequent years rebutting reasons given for refusal to pay. The first time I requested interest was when I issued court proceedings. Does that mean I do not have a case to ask for interest?

[MKB]

* delete one of those “in the letters” !

[JDB]

@MKB the award of statutory interest is, despite its name, discretionary and isn’t necessarily applied at the current 8% rate fixed 30 years ago. The question of pre-claim interest (as opposed to post judgment) is much debated.

I think the most current authority on this topic is Carrasco v Johnson [2018] EWCA Civ 87.

As it appears LH has conceded the main point (and makes fair points re interest), you don’t really want a hearing just about interest which will be highly technical. The quite above re ‘further compensation’ is irrelevant to the question of interest and there is no provision in EC261 for interest if compensation is not paid in seven days which it rarely is.

• This reply was modified 54 years, 4 months ago by .

[meta]

@MKB yes, to stand any chance of getting it, you would have to request it quite early on.

@JDB as per EC261 interest is left for the national courts to decide. And the interest is damage arising from contractual obligation, so yes the above quote is very much relevant.

[JDB]

meta wrote:

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@JDB as per EC261 interest is left for the national courts to decide. And the interest is damage arising from contractual obligation, so yes the above quote is very much relevant.

The fixed sum compensation for delays/cancellation is not a ‘contractual obligation’ as LH correctly avers in more detail.

[MKB]

@JDB Unfortunately, it’s more complicated and will probably need to proceed to court judgement anyway on a separate aspect of the case.

This was a trip with just a one-night stay at the destination. The final sector of the LH outbound flights went technical and we were put on the next LH flight. (The EC261 compensation relating to the outbound has now been accepted by LH.)

On arrival at the destination, we checked in online and obtained boarding passes for the return flights that were due to leave at 06:00 the following day.

We were denied boarding on the return flights having presented ourselves at the gate at the start of boarding, because it seems the clerk processing our rebookings on the outbound did something wrong, LH computer systems decided that we were no-shows on the outbound, our reservation had been cancelled overnight (after the online check-in), and our seats had been given to someone else. The flight was full and gate staff refused to seek volunteers to travel later.

Within the same MCOL case, we sought EC261 compensation for the twelve-hour delay on the return flight, and LH’s response is:

“The Defendant is making further enquiries regarding the Inbound Flights. Therefore, at present the
Defendant neither admits, nor denies the claims for compensation in relation to the delay of the Inbound
1 As amended by the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit)
Regulations 2019 Flights (item 1 (ii) above) or the claim in sum of £15.17 for “subsistence during inbound delay” (item 1
(iii) above). The Claimant is put to strict proof in this regard.”

[JDB]

@MKB from the snippet you have copied, it would appear that LH is holding out on the £15.17 before considering the inbound delay/denied boarding compensation? Are they putting you to proof re the denied boarding /delay or the £15.17? It doesn’t sound as though the case is ready for hearing.

[MKB]

@JDB There is the EC261 compensation for the inbound delay and the £15.17 expenses for the meal during the 12-hour wait for the next flight. It’s the claim for both of these that they wish me to “put to strict proof”.

From what you are saying, I should be uploading strict proof before proceeding to a hearing.

The Particulars of the Claim already included copies of our boarding passes and receipts for food, so my suspicion is that they are wanting us to prove that we presented ourselves at the gate when boarding started. I don’t know how I can prove that. I still have my Google Timeline showing that we arrived at the airport at 04:17 for the 06:00 flight but Timelines can be edited of course so not proof. I told the gate staff that I would take a photograph of us next to the boarding queue as evidence, but they told me that if I did that, they would call the police as I would be breaking Swiss law. (Despite my remaining calm and polite throughout, the staff were quite rude and unhelpful.)

[meta]

Sorry this case seems very complicated and you’re are drip feeding us the information. Therefore we cannot give you the best advice. Either you ask some lawyer to check it for you or post full details of the case and we can see how we can help.

[JDB]

MKB wrote:

@JDB There is the EC261 compensation for the inbound delay and the £15.17 expenses for the meal during the 12-hour wait for the next flight. It’s the claim for both of these that they wish me to “put to strict proof”.

From what you are saying, I should be uploading strict proof before proceeding to a hearing.

The Particulars of the Claim already included copies of our boarding passes and receipts for food, so my suspicion is that they are wanting us to prove that we presented ourselves at the gate when boarding started. I don’t know how I can prove that. I still have my Google Timeline showing that we arrived at the airport at 04:17 for the 06:00 flight but Timelines can be edited of course so not proof. I told the gate staff that I would take a photograph of us next to the boarding queue as evidence, but they told me that if I did that, they would call the police as I would be breaking Swiss law. (Despite my remaining calm and polite throughout, the staff were quite rude and unhelpful.)

As @meta says, it is incredibly difficult to try and help you as you provide a moving set of facts. If you do this at court you will lose. Also, if you have really left matters close to the six year limitation, you have made your life vastly more complicated. It is very odd to have issued a claim at MCOL if you haven’t established the facts. From the most recent post, you suggest that LH is disputing the fact that you were denied boarding, presumably (and I am hazarding a guess here) on the basis that you never actually had a booking on the flight and the boarding card(s) was/were issued erroneously although that was clearly LH error, but that may not assist. If they are disputing the fact that you were denied boarding that is something you should have established in pre action correspondence.

In order to redeem the situation, if I were in your position I would write to LH or their solicitors (and you should only communicate with them if LH is represented) and copy the court to ask them if they are actually disputing the fact that you were denied boarding and give them seven days to respond. Additionally, ask them for all your data under the provisions of DPA 2018 and corresponding German/Swiss legislation including all electronically and paper information, scans of your boarding card at the gate (if applicable) etc. Put them to proof. Unfortunately, if you have really left it six years, much evidence such as staff witnesses, CCTV will have been destroyed from the gate, passport control etc. At worst, you and anyone travelling with you need to write separate witness statements taking considerable care that they are independent of each other and are each of your specific recollections, absolutely no comment, opinion or hearsay and signed as true (look all this up). You may need to make an application for permission to file such a statement at this late stage, but equally don’t expect there will be time at any hearing to dispute the facts.

This is unfortunately a big mess and you need to proceed with considerable caution to avoid being at risk of costs.

The limitation period is a vital tool for protection of rights and/or litigation but in this sort of case you may have hopelessly damaged your case.

• This reply was modified 54 years, 4 months ago by .

[MKB]

Sorry if I appeared to have been drip-feeding information. I was seeking advice on the specific aspect of what interest if any is normally allowed. The point that, if the interest were the only point of dispute, it would not be worth going to a hearing, was well taken, so I wanted to explain that there was another unresolved aspect to the case. I didn’t think I need help with that aspect, but maybe I do, in the light of your advice.

Let me try and set out the full facts of the situation:

Two passengers (myself and my husband) travelled outbound Birmingham-Munich-Frankfurt-Basel one day in May 2016, returning Basel-Munich-Birmingham very early the following day, all flights operated by LH (or their regional subsidiaries) in business class on LH flight numbers. (We were attending the Europa League Final, so many flights were very busy.)

Outbound FRA-BSL: took off and returned to FRA with technical issues, and we were accommodated on the next LH flight, resulting in a 215-minute delay.

Inbound BSL-MUC: checked in online the night before; we thus had printed boarding cards with allocated seats; denied boarding at gate; accommodated on next flight, resulting in an 810-minute delay.

Reason cited by gate staff for denial of boarding was that the system had auto-cancelled our return reservation segments overnight as we had not flown the outbound FRA-BSL sector, when clearly we had. [One other passenger was in a similar situation and also denied boarding. There will have been many other passengers from the aborted outbound flight returning at different times who were similarly affected if there flights were also overbooked. We do not have any contact details of the other affected passengers.]

Letter 1 to LH: Claim for €250 compensation per passenger under EC261/2004 for both outbound and return flights and expenses (£60 approx) for phone calls and a lunch, and one day’s loss of earnings for both passengers.

Response 1: LH denied all claims and offered €100 dinner voucher and reimbursement of the expenses only, saying, without any further detail, that “the reason of irregularity was beyond our scope of influence”.

Letter 2 to LH: Rejected this offer and reiterated the Articles of EC261/2004 that cover compensation for delay and denied boarding.

Response 2 from LH: LH offered €250 per passenger as “a goodwill gesture”.

Letter 3 to LH: Repeated request to address the question as to why LH would not offer compensation for both flights.

Response 3 from LH: LH said that the offer of €250 was in fact the regulatory amount for the outbound flight, and, I quote, “Also, please be inform that no compensation could process regarding the denied boarding on your return flight as this was a result of the 18 May 2017 (sic) flight irregularity.”

The above correspondence took place over the course of the year following the flights. It’s rather pathetic of me, but dealing with this, and the responses I had had from LH, after what had been a quite traumatic trip, was affecting my mental health, and I put off responding time and time again because just thinking about it would set me off. Come April 2021, I was angry at myself for letting this drift for four years, but I knew there was a six-year time limitation on claims, so I wrote that month with a recorded-delivery “Letter Before Action” saying that the offer of €250 and expenses for the outbound flight was acceptable but that we would issue court proceedings if this and the claim for the return flight were not paid. We dropped the claim for consequential loss of income, as we couldn’t see a legal basis for that.

LH did not respond. No money has been paid.

Just before the six-year deadline, we issued two near-identical MCOL claims, one for each passenger, each claiming two lots of €250 (converted to GBP), plus around £30 expenses, plus interest at 8% pa (as per HfP advice), plus court fee.

LH’s solicitors requested a 28-day extension to defence filing, which we agreed. That ended today, and they have filed a partial defence today.

LH have accepted the claims for the outbound flight.
LH neither accept nor deny the claim for the inbound flight, and say they are still making enquiries, but “The Claimant is put to strict proof in this regard.”
LH intend to defend the interest claim.
LH make no mention of paying the court fee.

At no stage have LH suggested that the reason for denied boarding was due to lateness at the gate. In fact, response 3 accepts it was due to an “irregularity” with the outbound flight. But seeing LH’s solicitor ask for “strict proof” (even after seeing our boarding passes) makes me wonder what they are getting at, and whether they now plan to belatedly claim late arrival as a defence. (For clarity, we were at the gate well before the boarding deadline and before boarding had started. The first we knew of any problem was when our self-printed boarding pass failed to scan at the gate during priority boarding.)

Clearly, I have done myself no favours by submitting court proceedings so late, but, as it was within the allowed deadline, I did not expect that it would affect the outcome. I thought we had compelling cases for the claims, so hearing that it is a big mess and we could face costs is quite scary.

[MKB]

* their flights, not there flights. (Sorry, tired.)

[JDB]

@MKB waiting six years should not in itself affect the outcome, but as you are discovering, it is much harder now to prove details of an event that happened in 2016.

I don’t think LH is suggesting you weren’t at the gate on time, so I would not assume anything or focus on that.

Was LH definitely the operating carrier for the denied boarding flight? It’s a technicality, but another basis they could use to deny liability – a reader reported something similar re Swiss/Edelweiss last week.

Anyway, I would write to the solicitors two letters (one for each case) headed with the respective case numbers etc. Say in the opening paragraph you are copying the letter to the Court.

When they clearly hold records of your outbound journey it is improbable and an abuse of process to put the lay passenger to proof when it is the airline that holds the evidence – then ask for all your data under all the legislation of the respective countries.

[read all EC261 and Interpretative Guidelines]

State the simple facts, using and referring to the the terms from the legislation. You held a valid reservation, ticket and boarding pass as documented/evidenced by [X]. You presented yourself at the gate prior to the start of boarding. The gate agents did not seek volunteers per Article 4. If it is LH’s position that their systems or an agent erroneously cancelled your booking, that was entirely within LH control and does not alter the fact you were denied boarding. Also, LH failed to take any mitigating steps eg to notify you of the cancellation of your booking. As such you are due compensation and right to care per Articles…

You consider it it is gratuitous and an abuse of process to allow LH to attempt to deny your statutory rights by hiding information it holds and knows to be true. It is also gratuitously running up wholly disproportionate costs for this small claim.

If, despite all this, their client wishes to put you to proof, they need to be more specific and you will then provide witness statements with supporting evidence but this involves considerable time and cost and potentially application fees which you will seek to recover from them. You trust they will not object to filing of a statement and if you wish say they can make a statement in response so as to appear reasonable.

Give them 7 days to reply as you are now on a tight timetable and they have all the info.

[JDB]

@MKB if you do correspond with the solicitors by email, make sure they have agreed to accept service of documents by email or otherwise use recorded post and put the method in the heading of the letter.

• This reply was modified 54 years, 4 months ago by .

[MKB]

@JDB – Your detailed response is much appreciated. Thank you.

The denied-boarding flight was operated by Lufthansa Cityline, which is a wholly owned subsidiary and I believe legally equivalent to Lufthansa for the purposes of EC261 claims.

The outbound flight that went tech was also Cityline, and that claim has been accepted.

The other three booked flights were mainline Lufthansa.

[meta]

Nothing more to add here, just to go with a fine comb over the EC261, especially Article 5(4), article 14 as well.

• This reply was modified 54 years, 4 months ago by .