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Forums Other Flight changes and cancellations help HND to LHR BA0006 26th Nov 13:15 cancelled

  • JDB 4,124 posts

    Personally, if I were in this position I would be addressing the matter with BA in a conciliatory manner. The suggestion above to tell BA they have done x, y and z wrong and that the APR sets no limit, thus BA has got to wear all the costs is barmy. It will just persuade them to dig in their heels and clarify that the pax can easily be fobbed off.

    I’m afraid that any independent assessment of the hotel costs would deem them obviously unreasonable absent any objective evidence that £1k/ night was the going price, not forgetting that BA will have ample evidence to the contrary.

    I would make a without prejudice offer to BA, trying to bridge the gap between the £300 offered and the £1000 spent, probably in the range £550 to £750 plus your food expenses [you can note that your previous waiver of some of those costs was also without prejudice to any eventual claim]. You can provide an explanation of why you think that’s a reasonable proposal, in your own words and based on the information you had at the time you had to make a quick decision.

    Some will say that this shows weakness, but pushing for an unrealistic sum is equally weak. If the pax is pragmatic, in my experience, BA can also be pragmatic. It will depend on how you frame it and who you fall upon; unfortunately there’s an element of chance.

    Anyway, that’s my personal point of view. Good luck with whatever route you choose to take.

    AJA 1,027 posts

    @JDB I appreciate that you consider my last comment on this as seriously unhelpful. However as per those guidelines you say we should all have detailed knowledge of (a point I dispute) it says under 4.1. Right to information that

    “In addition, whenever an air carrier gives partial, misleading or wrong information to passengers on their rights, either individually or on a general basis through media advertisements or publications on its website, this should be considered as an infringement of the Regulation in accordance with Article 15(2) read in conjunction with recital 20 and may also constitute an unfair or misleading commercial business-to-consumer practice under Directive 2005/29/EC of the European Parliament and of the Council (32).”

    Therefore I suggest that if BA did not offer to book hotel accomodation for free for @Carousel and did not inform them that there was a cost limit if they booked hotel accomodation themselves then that is BA’s fault and not the customer’s.

    Indeed if BA did not even make reference to Article 9 and inform the passenger of their right to care then that “this should be considered as an infringement of the Regulation in accordance with Article 15(2)”

    Also article 15.2 states that

    “2. If, nevertheless, such a derogation or restrictive clause is applied in respect of a passenger, or if the passenger is not correctly informed of his rights and for that reason has accepted compensation which is inferior to that provided for in this Regulation, the passenger shall still be entitled to take the necessary proceedings before the competent courts or bodies in to obtain additional compensation.”

    Therefore while it is generally accepted that airlines usually pay between £200 and £300 per passenger per night for accomodation that does not mean the airlines can legitimately only refund £300 when the passenger incurred £2,000 through the failure of the airline to correctly inform them of their rights.

    The reference to paragraph 67 of the McDonagh case states that

    “However, an air passenger may only obtain, by way of compensation for the failure of the air carrier to comply with its obligation referred to in Articles 5(1)(b) and 9 of Regulation No 261/2004 to provide care, reimbursement of the amounts which, in the light of the specific circumstances of each case, proved necessary, appropriate and reasonable to make up for the shortcomings of the air carrier in the provision of care to that passenger, a matter which is for the national court to assess.”

    That does not mean that the airline is limited to pay out £300. Do you have any evidence to suggest that £300 is actually the legally accepted as the upper limit?

    I’d suggest that if you were already staying in a hotel it would be appropriate to extend the stay there. It clearly was necessary to stay somewhere. The only issue is whether it was reasonable to spend £1000 per night for 2 passengers.

    I’d also argue that paragraph 4.3.2 of the interpretive guidelines specifically states that “This means that passengers should not be left to make arrangements themselves, e.g. finding and paying for accommodation or food. Instead, operating air carriers are obliged to actively offer care.”

    This means that BA cannot rely on the passenger to organise their own accommodation at a price point acceptable to BA. If BA did not actively offer care they should be obliged to refund the actual expenses incurred because of BA’s flight cancellation.

    With regard to the right to re-routing those interpretive guidelines state under paragraph 4.2 that

    “As a general principle, when the passenger is informed about the cancellation of the flight and is correctly informed on the available
    choices, the choice offered to passengers under Article 8(1) is to be made once. In such cases, as soon as the passenger has chosen one of the three options under Article 8(1)(a), (b) or (c), the air carrier no longer has any obligation linked to the other two options.”

    I think a key phrase in that paragraph is “and is correctly informed on the available choices”. I’d argue that does not mean simply rebooking a passenger on a flight in economy via Chicago. Nor does it mean that offering the passenger a flight three days later on their own metal is sufficient. The actual text on flying later is “(iii) re-routing at a later date at the passenger’s convenience under comparable transport conditions, subject to availability of seats”

    I’d argue that a flight the next day on a direct flight on JAL in business class would have been more to the “passenger’s convenience” than one three days later. I’d also argue that if BA did not inform the passenger of that option that fails the interpretive guideline that the passenger was “correctly informed on the available choices”.

    I’d further argue that it ahould make no difference to BA which airline the passenger is rerouted on since BA and JAL have a revenue sharing agreement on the Japan-UK route. Therefore the logical thing to do is to reroute the passenger(s) on the next available flight in the same cabin as originally booked and not one three days later.

    AJA 1,027 posts

    @JDB I just read your latest post and you do offer a sensible approach. However regarding the £1k per night that sounds like it was the walk-up rate at the hotel. That is not unreasonable given the hotel class. The rate paid by the passenger for their existing reservation should be lower given it was booked in advance.

    As I said above the interpretive guidelines state that the airline has to actively offer care and it specifically states that “passengers should not be left to make arrangements themselves, e.g. finding and paying for accommodation or food.”

    Therefore even if “BA will have ample evidence to the contrary” that the passenger could have found somewhere cheaper that is objectively not the responsibility of the passenger but actually BA’s responsibility to make a booking on behalf of the passenger. If BA didn’t even bother then it shouldn’t be able to argue that they aren’t liable to refund the actual expenses incurred.

    JDB 4,124 posts

    @AJA

    1) you cite 4.1 and (later also 4.2) of the Interpretative Guidelines but BA actually does correctly advise passengers of their rights in a link (and often some text) plus on its website and, even if they failed, there is no sanction, so you can’t say that because BA failed to do x, I’m entitled to do y. That is a concept you have invented. The three part test is not overridden – in fact it is explicitly restated to apply if a passenger has to make their own arrangements (at 4.3.2, fourth paragraph) something the Commission clearly envisages might happen.

    2) you then cite 15(2) and McDonagh but again there is no sanction and the CAA, as the UK NEB, explicitly states that if the airline doesn’t do what it is supposed to, the passenger should make the arrangements themselves and seek reimbursement. It again states the three part test and suggests that airlines are unlikely to pay for luxury hotels or alcohol. It doesn’t say that since BA didn’t book your hotel you have won the lottery, so go crazy.

    It is clear that even if the passenger was not correctly informed it doesn’t change the fundamental situation; you are trying to extrapolate meanings that aren’t there.

    I have not said, as you imply, that there is a limit of £300/night because there isn’t any limit. However, there is a guideline limit to be interpreted in the context of each case and it’s clear that £1000 is easily twice what was reasonable in this case for a hotel in Tokyo. Common sense and the sniff test also result in the same answer. If this had been during the Olympics or some similar event and the pax could demonstrate/evidence that £1000 was the going rate, then that might be considered reasonable but it is not the case here.

    As stated in an earlier post, staying at one’s existing hotel might pass the first two legs of the test, but at £1000 it fails the last leg and no amount of alleged failures or misconduct by BA can alter that fact or change the test. That is where your argument falls down. BA knows the rules so trying to persuade them that they don’t understand them won’t get you very far.

    AJA 1,027 posts

    @JDB You agree, I think, extending a stay in the same hotel you are already staying in is appropriate. You also agree that the 2 nights were necessary. And you also confirm that there is no limit to how much the hotel should cost. So we are just arguing whether £1k for 2 passengers or some lower figure per night is reasonable.

    Therefore objectively if the passenger can prove that they thought the amount they spent was reasonable, which sounds like a walk-up rate at the hotel they were already in, clearly was, based on that individual case, it might be argued that it ought to be reimbursed.

    It is not reasonable however to have been staying in a HIX then to find a Four Seasons and expect BA to pay. That is what is meant by as you say ” that airlines are unlikely to pay for luxury hotels or alcohol. It doesn’t say that since BA didn’t book your hotel you have won the lottery, so go crazy.”

    But that is not what the OP did. They did not go seeking the most expensive hotel (even though it clearly was an expensive hotel). They just asked the hotel where they were already staying to extend their stay a further 2 nights. They even downgraded the room they were staying in. That is not unreasonable.

    And that is similar to what Angela also originally did except the Hilton where she was staying was full so she found another similarly priced hotel. She didn’t go finding an even cheaper hotel in Tokyo and BA also initially refused to pay even the amount she incurred.

    I think we can all agree that had the OP told us earlier that they were going to be charged £1k per night that we would have advised them not to do that and to find a cheaper hotel. BA certainly would have done so had they actually cared to resolve the issue of accomodation they were obliged but failed to arrange.

    I think in reality BA should up its offer. I doubt it will actually just cave and reimburse the £2k but there is a case to be made for that to happen. You clearly disagree. I am by no means certain that my approach is likely to win but I do think that there is a case to be argued unless further information comes to light such as BA did offer accomodation and @Carousel rejected it.

    It is up to @Carousel to choose what they want to do.

    Lady London 1,952 posts

    I’m with AJA on this although it is finely shaded.

    I don’t consider £500 for a passenger to be excessive for a booking which has to be made right away, to be excessive for a Tokyo hotel. The passenger wasn’t flying in Economy and they weren’t previously staying Economy as to hotel either.

    There is no evidence that the passenger, each of them, sought to profit from the situation British Airways put them in, at short notice and far from home. It was quite natural for them to carry on staying where they were already staying and BA certainly did not advise them that this quite natural thing to do had any limits or would be unreasonable. They simply did quite reasonable things and stayed on having been denied what BA should have provided (though BA also failed to inform them about the rerouting right pertaining to this also) : i.e. the much sooner flight on JAL.

    If they’d moved to the Park Hyatt for the extra days BA made them stay on, then that’s what would have been unreasonable. Instead they stayed where they were. £500 per night is not unreasonable for 1 person in this situation and location.

    If BA had wanted to avoid this cost then all they had to do was correctly provide the earlier transportation that was available on Japan Airlines which each of.these 2 passengers had a right to and requested but had neen denied by BA.

    I am sick and tired of hearing on here that British Airways is causing great inconvenience to passengers and then denying them their legal rights to rerouting. And now especially with their Tokyo flight cancellations, chiselling on the out of pocket – ie actual cash paid – for expenses BA is responsible for after BA put them in this situation and then had failed to provide several of the passenger’s legal rights.

    BA cancelled those flights for its own commercial reasons (ie to make a profit) or because their operations failed, and it is time BA stepped up to their legal respnsibilities instead of making passengers whose flights they cancelled, victims a 2nd time (denied rerouting on earlier JAL) and a 3rd time (being so cheap as to try not to pay the full reasonable expensee they left the passenger in the position of having to pay out).

    I would most definitely not be offering to BA to settle for less – I’d CEDR it and let an objective view be taken of BA’s various failures to provide my rights.

    JDB 4,124 posts

    @Lady London – I think that in mentioning £500, you are trying to justify that per person so that the £1,000 pill will be swallowed!

    Article 9 is supposed to provide indemnification so you can’t really use the idea that if they had booked two rooms at £500 then it might have been OK because they in fact only booked one. You make the same erroneous link as @AJA that there is somehow a connection between any alleged failures by BA to provide the passenger with their rights and the test for reimbursement of expenses.

    It feels a little unseemly to use the post as another diatribe about BA with elements that don’t accord with the facts previously posted, particularly when the OP has had the honesty and good grace to shoulder some of the blame…

    It’s quite difficult to see CEDR requiring much more than BA’s offer and at MCOL I think you would be at serious risk of costs for unreasonable conduct.

    meta 1,406 posts

    @JDB I do not think that you’d risk of costs at MCOL paradoxically because of Article 15 (you’d have to use that argument), so if OP is unhappy with final BA offer they could try and get more there and also be prepared to lose BA offer as well. The key then is to argue that they weren’t informed.

    Going via CEDR for me is pointless, but I have already stated my views on that mechanism. It’s there for shall I say less-versed.

    However, none of this is helpful to @carousel. He needs now a resolution, which is grounded somewhere in between his own mistakes and BA’s usual uncooperative way of dealing with claims.

    JDB 4,124 posts

    @JDB I do not think that you’d risk of costs at MCOL paradoxically because of Article 15 (you’d have to use that argument), so if OP is unhappy with final BA offer they could try and get more there and also be prepared to lose BA offer as well. The key then is to argue that they weren’t informed.

    Going via CEDR for me is pointless, but I have already stated my views on that mechanism. It’s there for shall I say less-versed.

    However, none of this is helpful to @carousel. He needs now a resolution, which is grounded somewhere in between his own mistakes and BA’s usual uncooperative way of dealing with claims.

    I agree re CEDR – apart from anything else, they will fall off their chairs laughing before they even receive BA’s defence.

    I’m not convinced that the protection of Article 15 re costs is sufficient as BA’s cancellation notices, associated links and website are generally considered by the courts as sufficient to inform passenger and Rusu v Blue might be added as a stronger defence. I were to take this to MCOL I would claim for breach of contract as well as UK261 to fortify a poor case.

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