Lost at CEDR with BA – what next?

[Jerry]

CEDR has just notified me the adjudicator has ruled for BA in my claim. The adjudicator agrees with the airline that the cancelled flight ticket had a 1 year validity and furthermore agrees with the airline that EU261 does not give passengers the right to pick a travel date at any time in the future.

So the claim fails and I am entitled to a refund or voucher for my cancelled 241 LHR-HND 50% avios sale ticket. The flights were cancelled twice and BA refused to rebook beyond 12 months of ticket issue date. Naturally I’m surprised by the CEDR decision.

There is no right of appeal. The reason I decided to try CEDR rather than MCOL was I understood the court would expect this step to be taken first rather than use valuable court time when arbitration is available. I still have the right to MCOL but having lost at CEDR BA will most likely use the judgement in their defence.

An FTV won’t get me return business class flight to Japan for 75,000 avios, nor will the taxes and charges payable in September 2020 cover the crazy new charges.

Next step – I have to accept or deline the adjudication. If I accept is MCOL closed to me? If I reject can I still claim a refund of the avios and taxes as the avios T&Cs? Advice please.

What is the likely outcome at MCOL?

• This topic was modified 54 years, 11 months ago by .

[meta]

MCOL is entirely different process. It’s based on law, not someone’s feeling. I don’t think they can use it against you, but you present the case again and state that the CEDR misinterpreted EU261. BA will now also have to engage a real lawyer if it goes to hearing, so more cost to them. They might want to settle. I suggest you pursue BA at MCOL.

Refund is always an option under the law no matter what you choose.

[Jerry]

Meta – very helpful and reassuring. Thank you. Some years ago I won an MCOL against TUI airline. There was a hearing. It was a lot of effort. So I have to weigh that up too.

[JDB]

@meta is correct that MCOL is a different process, and it is intended to be simple but it requires more of the claimant in framing the case precisely and providing a legal basis for the claim (and in this case its failure at arbitration) that CEDR does not. You would really need to show that CEDR had made an error in law. You need to read and analyse the decision very carefully if you plan to take legal action.

While the judge will make an entirely separate decision, the failure at CEDR risks having a magnetic importance. If you pursued it at MCOL and lost, I would expect BA to ask for costs and they would quite likely be awarded some as it looks like an attempt at a second bite of the cherry.

I appreciate that it is incredibly disappointing, but while MCOL is an option, it is not a risk free one.

[Boltonsam]

I am in a similar situation and only in last week has it gone to cedr. I thought from flyertalk et al it would be a straightforward win. Main reason I didn’t go for mcol as I believe you have to show a definite loss, and ie in my case tie up £50k+ buying similar refundable tickets. I ll have to wait and see but doesn’t look promising. Jerry, how far in the future were you trying to rebook? In hindsight is there anything you would have done differently to help your case? Thanks

[Jerry]

@Boltonsam Yes I thought after some research (HFP, FT) that it would be a straightforward ‘win’ as EU261 is clear about passenger rights to re-route. But CEDR was more persuaded by BA ticket validity terms of carraige and they felt that if the purpose of EU261 was to get the passenger to their destination without further delay there was no reason for this to be sometime in the future.

I was trying to rebook after the 2nd set of flights were cancelled in Oct 21 for travel this May. I did issue a letter before action (by post) to BA asking to be re-routed in Sept 22. BA didn’t respond. After further research I understood the court would expect me to try arbitration due to significant pressure on the courts. That’s when I filed with CEDR.

@JDB This is very helpful. Yes, I am concerned about losing, and the risk of costs being awarded. I found the TUI claim quite stressful. Tui appointed a lawyer for the hearing who successfully applied for ‘a stay’ pending another case. Fortunately that case was lost and even though it didn’t set a precedent Tui agreed to pay for the 6 hour flight delay. However in the court even keeping up with the lawyer and Judge discusisng the ‘stay’ application was quite technical. So although MCOL is supposed to be user friendly it can be quite daunting.

@Boltonsam Given the whole thing again what would I do? I don’t think there is an easy win with BA. CEDR is a no-risk option but I wouldn’t do it again and it’s probably damaged any option to MCOL.

• This reply was modified 54 years, 11 months ago by .

[Lady London]

@Jerry was your case in an earlier thread?

If so could you please post a link.

If not could you please summarise. In particular which dates were involved. In particular original booking and travel date, any previous changes and for each change whether it was by you or BA, what is your new date convenient to you that you chose to be rerouted on (+ any personal factors in this).

Over time we have had people report here that CEDR lost followed by a win at MCOL. Same case. I think you’ll find the same on flyertalk.

I am sure you were not arguing that EU261 gives you an infinite choice of dates but just one convenient to you as is provided quite specifically in that statute. I am also sure that the general test of reasonableness in the circumstances, of your date, was met.

I’d decline and proceed to MCOL. You’ve not lost anything (other than BA messing you around and yet still wanting it all its own way). BA can still lose.

[Amy C]

Oh God this is worrying. An adjudicator has been appointed in my case to reach a decision by April 11th. I was quietly confident and now I’m not. Really sorry it’s not ruled in your favour.

[Harry T]

I am unsurprised – the point of EC261 legislation is to support the traveller in being given a reasonable rerouting or rebooking in the advent of cancellation, not provide a future trip at any point the passenger finds most desirable.

[Richie]

Why doesn’t the legislation expressly detail a time limit?

[Lady London]

Specifically on the legal front the CEDR outcome is incorrect. Because it has disregarded the right given in Article 8.1(c) to the passenger, to choose a later date to be rerouted *convenient to the passenger*.

Even the original French word “convenant” that the specific word “convenient” in EU261 is probably translated from, has an even stronger meaning “suiting” the passenger. Not just convenient, but suiting the passenger.

Even more worrying as to this likely being a perverse decision, is that the fact that statute outranks contract, an absolutely key thing in law with very few exceptions, (contract being the airline’s own contract or rules and statute being EU261 and its UK equivalent) also seems to have been overlooked by this CEDR adjudicator.

To say anyone thinks “at any point the passenger finds desirable” is what is being sought, is overegging it and sounds a bit snide. The legislation states “convenient to the passenger”. Clearly it was deliberately written that way by the legislator to stop airline abuses. Your wording @Harry T, is going too far.

• This reply was modified 54 years, 11 months ago by .

[Jerry]

@LadyLondon I have’t posted my case before, but have mentioned it in daily comments once but not with details.

Brief summary – booked LHR-HND in October 2020 241 50% avios sale for business class for travel in May 2021. In March 2021 BA cancelled the outbound. I Phoned and rebooked to September 2021. During this call BA informed me all travel must be complete within 12 months of original ticket issue (they reky on this heavily in ther CEDR submission) In September 2021 BA cancelled the return leg from HND. I used this event to attempt to rebook the entire trip for Sept 2022. BA refused in live chat, 2 phone calls and then 2 customer relations responses. I issued a letter before action by post (no response) and then after further research (it costs £455 to lodge a claim worth £5-£10k MCOL) I decided CEDR should be my next step. CEDR requires claimaints to state a cash value for compensation. Flex tickets in Sept 22 were pricing at £16,000. This is outside the CEDR scope so I amended to £9000 using sample ticket purchase dates semi-flex same route in May 22 flying with BA. I argued with CEDR that EU261 recognised that consumers do not have endless flexibility for travel and that a request for the same season a year later was not unreasonable. The cash compensation was ‘in the alternative’ I was very clear in my claim all I expected as an award was for BA to rebook my flights at dates of my choosing in 2022.

The risk of MCOL now is the £455 fee (cases £5-10k or 5% of claim £800) + court allocation fee £40 and possible court hearing fee (max £355) and possible BA application for their costs, unless I’m missing something? This is why I did CEDR first.

after reading you latest post (made while typing this) I argued strongly BA’s T&C could not override EU261 it was lost on the adjudicator.

To answer Harry’s point I wasn’t asking for a date years ahead. I can’t travel any day the airline tells me – I also have commitments, which EU261 recognises.

• This reply was modified 54 years, 11 months ago by .

[Lady London]

Richie wrote:

Why doesn’t the legislation expressly detail a time limit?

Because the legislator didn’t want to @Richie.

Plenty of reasons why the passenger might not be able to do the travel again within, say, 1 year. Family events requiring complete reorganising, not enough annual leave, or other commitments or matters arising, an annual event that doesn’t fall quite at the same time next year, too much other travel also having needed to be rebooked, having planned to visit a location in a particular season due to weather or other natural phenomena (Northern Lights, cherry blossom season, avoid worst humidity seasons or be sure enough ice us there, etc.) Remember the airline has messed the passenger around by cancelling his flights.

[JDB]

Lady London wrote:

Specifically on the legal front the CEDR outcome is incorrect.

This is a matter of judgement, so not right to say it is “incorrect”

To say anyone thinks “at any point the passenger finds desirable” is what is being sought, is overegging it and sounds a bit snide. The legislation states “convenient to the passenger”. Clearly it was deliberately written that way by the legislator to stop airline abuses. Your wording @Harry T, is going too far.

I’m afraid that @HarryT has hit the nail on the head; there are too many people who are rather gung-ho about telling people to rush off to MCOL, CEDR, claim s75 giving them false hope for cases that are far from slam dunks.

• This reply was modified 54 years, 11 months ago by .

[Lady London]

@Jerry on the original cancellation what date were you asking for that BA refused? I know you ended up with Sept 2021 but what date had you been trying for?

On the 2nd cancellation, what was it about your circumstances that made you want Sept 2022? For instance, at first glance I was wondering why, having chosen May 2021 to travel originally, you were not thinking of May 2022 when the September 2021 flight was cancelled.

[Lady London]

@JDB your own words “You would need to show that CEDR had made an error at law”.

I just did. The CEDR adjudicator disregarded Article 8.1(c) of EU261 which gave the claimant the exact right he was seeking to exercise.

[Jerry]

@LadyLondon In March 21 when May 21 travel was cancelled I wanted May 22 (I was trying to travel in that season, and it suits my business at home to travel in May) but had to settle for Sept 21. When Sept 21 was cancelled I didn’t get a full refusal from BA cust relations until mid November and I could see CEDR would take some months (as would MCOL) so I decided May replacement travel was unlikley to be achieved so I aimed for Sept so I could go ahead and plan my business affairs for May at home. CEDR doesn’t ask applicants to get into this detail. I focussed on EU261 and BA refusal to adhere to the law.

[Jerry]

Lady London wrote:

@JDB your own words “You would need to show that CEDR had made an error at law”.

I just did. The CEDR adjudicator disregarded Article 8.1(c) of EU261 which gave the claimant the exact right he was seeking to exercise.

I quoted 8.1 in full in my evidence and so to be fair did BA.

[Jerry]

The adjudicator also referred specifically to 8.1 and was persuaded by the airline’s argument that it did not proide an indefinite right of rebooking and the adjudicator decided that this provision must be read in conjunction with the airline’s Conditions of carriage which provide the ticket is valid for 12 months.

• This reply was modified 54 years, 11 months ago by .

[JDB]

Lady London wrote:

@JDB your own words “You would need to show that CEDR had made an error at law”.

I just did. The CEDR adjudicator disregarded Article 8.1(c) of EU261 which gave the claimant the exact right he was seeking to exercise.

The wording to which you refer in that article is:- “re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats”

The interpretation of what “at the passenger’s convenience” means in the context of a particular case is a subjective decision by an arbitrator or judge. The fact you disagree with a decision does not make it wrong in law or “incorrect”.

[Lady London]

Jerry wrote:

@LadyLondon In March 21 when May 21 travel was cancelled I wanted May 22 (I was trying to travel in that season, and it suits my business at home to travel in May) but had to settle for Sept 21. When Sept 21 was cancelled I didn’t get a full refusal from BA cust relations until mid November and I could see CEDR would take some months (as would MCOL) so I decided May replacement travel was unlikley to be achieved so I aimed for Sept so I could go ahead and plan my business affairs for May at home. CEDR doesn’t ask applicants to get into this detail. I focussed on EU261 and BA refusal to adhere to the law.

OK, I guess May, followed by September, are the 2 particular months which work for you to do leisure? travel, given the particular business you are in.

If you do decide to go for MCOL on this, you can put detail like this into indexed appendices so it’s there if the judge is wondering were you being reasonable as I did, but does not detract from the line of your main argument.

I certainly wouldn’t want to scramble for a May trip if judgment was even last month, let alone now.

@JDB is there anything else @Jerry could have overlooked?

[Jerry]

@LadyLondon – Thank you.

Your judgement about my availability to travel is correct.

And your thoughts about the fees and financial risks of MCOL?

[points_worrier]

There clearly has to be some reasonableness here in the time limits for a rebooking. The flight was cancelled (again) in Sept 2021. Were the dates you were asking for more than 365 days after the cancelled flights? Or more than 365 days after you were informed of the cancellation of the flights?
Clearly there is no indefinite time. But given BA themselves were extending validity of tickets around this time to 2 years, and that FTVs are valid to Sept 2023, shows that timescales involved are not a) as rigid, or b) as small as 12 months.
In my view this reasonableness must reset and kick in again once BA re cancels a new set of replacement flights – otherwise it would just kick can down road until it times out to completely avoid the legislation.

[TedL]

Jerry wrote:

Brief summary – booked LHR-HND in October 2020 241 50% avios sale for business class for travel in May 2021. In March 2021 BA cancelled the outbound. I Phoned and rebooked to September 2021. During this call BA informed me all travel must be complete within 12 months of original ticket issue (they reky on this heavily in ther CEDR submission)

Somewhat puzzled by this, BA’s Conditions of Carriage state

3b1) Unless it says differently on the ticket, in these conditions of carriage, or in any tariffs which apply, a ticket is valid for travel for:

one year from the date it is issued or
one year from the date you first travelled using the ticket, as long as your first flight took place within a year of the ticket being issued.

[TedL]

Any mileage in posting the Adjudication?