Lack of final response from BA

[1005dyer]

Some of you will be aware, under this less than clear heading, that I was going to take BA to Court — this I did nearly three weeks ago.
I was turned down, with the Judge saying he was sympathetic to my case but he had to refuse it, but I could appeal

Today I received his written judgement in four words — ‘The claim is dismissed’ Surprisingly are no other notes available to me from the Court.

I was anticipating a written reasoning from the Judge saying that because I had not read the EC law or my BA rights noted at the bottom of the BA flight cancellation email, this would leave the Judge no choice but to turn me down.
He specifically asked me if this were true — to which I said I had not read these documents until I decided to claim from BA. I believe in his eyes this was my mistake, I should have read them, my argument however would be that I should be informed by BA in a more detailed way.

I believe BA must see that my claim (£3500) is a point of priciple because they sent a lawyer down from London to the Court at Cheltenham

EC law and BA rights are quite clear and require BA to offer me alternative flight arrangements when cancelling a flight — they did not, so I intend to appeal.

Sorry this is so short, but all the details are too extensive for this Forum.

[JDB]

@1005dyer – I’m sorry to hear this. I was worried about your case as I indicated to you previously. I would be rather careful about appealing – an appeal is not a rehearing of your case and puts you at risk of costs. You also need permission to appeal from either the hearing judge or the appeal court and there are strict time limits. You cannot appeal on the basis you don’t agree with the decision, you need to have grounds such as the judge having made an error or law, a mistake or that they reached a perverse decision no reasonable properly instructed person could have reached. The test is:-

(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason for the appeal to be heard.

This is a high bar.

You say BA sent a lawyer on the day, although I thought you had previously said they had indicated they wouldn’t attend? The one thing that surprises me is that there is no reasoned judgment – was there a verbal judgment on the day, or was the judgment reserved. If there was one on the day, you may need to get a transcript for permission to appeal.

BA and most big companies will pursue cases what you refer to as ‘on principle’ simply because that’s a sensible approach rather than just paying bad claims because it costs money to defend them. Imagine where that would lead.

[Richie]

What sort of “…more detailed way…” were you expecting to have been informed by BA?

[BA Flyer IHG Stayer]

Can you please link in the previous thread so people can see the history?

[1005dyer]

As you say JDB there is a high bar, but consider the following —

The hearing judge gave me verbal permission to appeal. I was not allowed to present my case — he just asked questions of me and BA lawyer.

He would not allow my plea to go through ECLaw and the BA ‘my rights saying he knows all about EC law

Regarding the BA defence, he did not pick up that I was not informed of my rights and he did not ask the BA lawyer why not.
As you know EC law is clear on the Right to Information see 4.1.1 and recital 20. Also BA did not offer me under 4.2 article 8(1) the triple choices they were obliged to do.

By denying me the opportunity to present these points the judge is in error I believe.

How I deal with BA I am not sure, as they were at fault in not adhering to their own rules apart from their obligations under EU law

[1005dyer]

You are right Richie ‘more detailed way’ is not clear — this should be clearer now in my reply to JDB ie the details that BA are required to make me aware of

[JDB]

For those interested, this was the original thread

https://www.headforpoints.com/forums/topic/taking-ba-to-mcol/

@1005dyer – I’m afraid, the additional information provided isn’t good news for your case. I thought the idea of appealing seemed unwise but it now seems completely bonkers. You really should take proper advice. Appeals are not straightforward and you are always liable for the other side’s costs in addition to your own if you are unsuccessful.

You said in your original post (of this thread) that the judgment was just four words – “the claim is dismissed” but your next post at 19.19 says you were given permission to appeal. I think the four words are the Order that naturally follows a hearing/judgment. I take it that you were given permission to appeal at the hearing a couple of weeks ago rather than on a subsequent application, so if the judge gave permission, he will only have done so after giving an ex tempore verbal judgment after which he should have asked if you wished to appeal and the basis on which such appeal could be considered.

While you will be told it’s the Order you are appealing rather than the judgment, you can’t contemplate an appeal without analysing the judgment and you haven’t told us what it was. If you didn’t make a detailed note of it at the time, BA or their counsel should give you their note if you ask.

It’s difficult to say much without the judgment, but based on such information as you have provided, there’s a material risk of a pyrrhic victory. You aren’t in a position from the information here to say the judge erred in law, but you suggest he erred procedurally. The appeal could therefore decide that yes, there was procedural error, but even if the procedure had been correct, that wouldn’t have changed the outcome. Appeal dismissed, costs awarded to BA.

I’m afraid there are no formal sanctions for BA not providing you with the correct information so the only way to make that failure assist your case is make a very clear and specific link with that failure and your actions in ignorance of your rights. I’m not sure what distinction you were trying to make to the judge re EU law vs English law. He sounds quite grumpy (not unusual) and when you meet obvious resistance, rather than testing an argument, it’s code to back off and try another argument.

My initial view was that your case was muddled and that it needed fixing before a hearing and I’m afraid the situation is no better now.

[Mouse]

@1005dyer Sometimes you just gotta take the L, or, as the older folks would put it, recognise that discretion is the better part of valour.

[1005dyer]

I note what you say JDB, but please consider this — as I have previously said the judge in reaching his verdict said he has sympathy with me but has to find against me and gave me permission to appeal He was grumpy!

He gave no verbal reasons for his refusal and the written decision received yesterday also did not give reasons.

Surely I have a right to know the reasons — I cannot make an appeal decision until I see those reasons.

[Richie]

Are there any records in the public domain regarding this Judge’s previous decisions and if appeals have been successful?

[memesweeper]

JDB wrote:

You really should take proper advice. Appeals are not straightforward and you are always liable for the other side’s costs in addition to your own if you are unsuccessful.

^^^ this ^^^

Please take legal advice before going further, the risk of a costs award is real and you cannot control them. If getting a lawyer involved to advise and conduct your appeal seems “too expensive” then I would strongly suggest you stop now — if you can’t afford a lawyer, you can’t afford to loose.

Having said that, free advice may be available: https://www.advicenow.org.uk/know-hows/how-get-free-legal-advice-about-your-civil-case

IANAL

[Ihar]

Well I’ve probably spent more time than the Judge reading these threads, and I’m non the wiser. You should have asked the Judge on what grounds he was dismissing the case – presumably on a point of law. You can get the court transcript (not cheap) or better ask BA to share their notes.

But I think the simple point of BA sending a lawyer means you probably have no case. Given that it sets no precedent, they obviously think it’s cost effective to flight it.

As @JDB says, an appeal is a very risky and costly option – and one that you will definitely need legal representation for. And then you still have to win (or risk an expensive legal bill from BA).

[JDB]

@1005dyer – I’m a bit lost for words here. You have said again that you didn’t get a reasoned decision/judgment but somehow you got verbal leave to appeal. This all sounds as inherently unlikely as the judge turning up wearing no clothes.

You referred to the four word decision but that’s the end of the judgment/decision for the benefit of the tape and what will be stated on the resulting Order which confirms the outcome of the case. It’s the comments before that you need.

There will have been a verbal judgment. BA or its counsel at the hearing will have noted that judgment and it would be normal for them to provide to you on request.

You say that the judge was sympathetic to your case but said he had no choice but to find against you. That sounds like part of a decision.

You say that the judge didn’t give you the opportunity to present your case but that suggests he had read the papers so didn’t want to hear the content again (and you shouldn’t be introducing new facts or legal points at the hearing) so he just asked questions to probe or clarify your case. I take it he also didn’t allow BA to present its case which is implied by your earlier post.

The difficulty of an appeal is that in this sort of case, the judge has a huge measure of discretion. He really has to decide something rather extraordinary for it to be overturned on appeal.

From the little information provided here, the original case wasn’t at all strong and it was muddled – really quite difficult to understand, which is why I suggested testing it on someone totally independent to see if they could understand the issues. If they can’t, nor will the judge. Unfortunately the report of the hearing is somewhat confused as well, so an appeal seems a bit fanciful.

[1005dyer]

Your advice is helpful so thank you all. However I return to my point that I cannot contemplate an appeal, until I know the Judge’s reasons. So I will write to ask the Court whether they are available — this appears to be the best way to find out.

[Ihar]

I think if the OP wants any more guidance from us “non-lawyers” he should post a link to his court submission. Regardless of BA’s submission, there was obviously a flaw that meant it had no merit.

[strickers]

As a layman with regards to the law I can see two possibilities, either it was dismissed on a procedural error/technicality or there was no case to answer. Either way I wouldn’t entertain pursuing this further without legal advice. This becomes a risk and reward situation where the former outweighs the latter, by all means try to understand why by obtaining all information that’s available. However, there are times to chalk things down to experience and move on.

[JDB]

1005dyer wrote:

Your advice is helpful so thank you all. However I return to my point that I cannot contemplate an appeal, until I know the Judge’s reasons. So I will write to ask the Court whether they are available — this appears to be the best way to find out.

The first port of call is to ask BA or the counsel who attended on the day for their note of the judgment. I think the court will tell you to fill in form EX107 and you need to choose one of the third party firms for a transcript. As what you are seeking includes a judgment, they will need to get it approved by the judge. That will take time and they charge per folio (= 72 words) and quite probably won’t let you just pick a small part of the hearing. BA won’t charge and while it won’t be a verbatim record, it will be an accurate summary; that’s a counsel’s basic job.