Lost at CEDR with BA – what next?

[points_worrier]

TedL wrote:

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.

My interpretation of that would be, for a cancelled ticket, validity would be within one year of the date of (the cancelled) travel.

[Jerry]

points_worrier wrote:

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.

Exactly this. BA was happy to offer an FTV valid until 2023 because they could keep my money and didn’t have to honour the 50% avios rate they offered when they were desperate to take my cash back in Oct 2020. They don’t want to rebook me now because seat availability is poor, the fees and charges are much higher and they want to charge all the avios not half. I have been reasonable in my requests to rebook and as you say definitely well within the FTV validity window.

[TedL]

points_worrier wrote:

TedL wrote:

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.

My interpretation of that would be, for a cancelled ticket, validity would be within one year of the date of (the cancelled) travel.

So if you have booked -355 days out and they cancel shortly before your trip your ticket validity is almost nil.

[Lady London]

@Jerry since you ask, I thought @meta’s post summed it up. Whatever happens you will still be able to get a refund.

Which in a funny way, as you know a refund isn’t going to go anywhere near the cost of replacing the same travel, means I would do my research and probably take the risk of MCOL. As if I don’t win that travel is gone now.

On costs it’s pretty rare for a claimant to be stuck with costs at MCOL even if they lose. Protecting ordinary people from having costs awarded against them is one of the reasons the small claims track exists.

I feel you’ve got a perverse decision which is a much greater risk at CEDR. CEDR can disregard the law if they think a different outcome is more reasonable. MCOL decision must be based on the law so it’s not impossible that a judge will ‘find’ legal reasons to fit their particular judgment but it’s less likely.

I think I would read around case law, follow @JDB’s advice to read and analyse the detail of this CEDR decision, then if I submitted to MCOL I would put in the detail about the business months, I would produce at least 3-5 quotes across 3 other airlines showing similar costs, I would also in any hearing present my case humbly and request the help of the court to let me still have the travel I dreamed of (having explained the many attempts, and my business and any other constraints in appendix part(s) of the written submission). I’d lay out the case but not quote law as.such in the actual hearing, just explain and request.

[Jerry]

TedL wrote:

Any mileage in posting the Adjudication?

@TedL I’m considering posting the full adjudication here.

As I see it the adjudication doesn’t help me, it’s not binding and I can reject it.

Posting it will allow others to read it and adjust their own CEDR arguments / evidence so it may be helpful.

I will take some advice on this.

[TedL]

Jerry wrote:

TedL wrote:

Any mileage in posting the Adjudication?

@TedL I’m considering posting the full adjudication here.

As I see it the adjudication doesn’t help me, it’s not binding and I can reject it.

Posting it will allow others to read it and adjust their own CEDR arguments / evidence so it may be helpful.

I will take some advice on this.

Would be useful, have a vested interest with cancelled SYD flights though I do have the advantage that there havn’t been any flights I could actually use until tomorrow. Did manage to get a CS agent to rebook for Dec 22 but no tickets yet, if issues arise when they re-ticket will be CEDR/MCOL. Shows its the luck of the draw when you call.

[Jerry]

@TedL

CEDR scheme rules don’t appear to impose any confidentiality restrictions on ‘customers’ 7.1. It’s not clear whether that extends to publishing full texts of Adjudiations.

https://www.cedr.com/wp-content/uploads/2019/10/Aviation-Adjudication-Scheme-Rules.pdf

[TedL]

Have a look at

https://www.flyertalk.com/forum/british-airways-executive-club/2035184-ticket-validity-19.html

Shows the luck of the draw extends to CEDR as well!

[meta]

I just want to add that it is extremely rare that the MCOL awards costs. It will have to be such a vexatious claim and none of @Jerry said is that.

[meta]

Also want to emphasise how ridiculous is to claim it is unreasonable to ask to be rebooked indefinitely. Good airlines offer it as a matter of fact.

I currently hold a totally open ticket – not a voucher or anything similar with Singapore Airlines in F. They’ve cancelled my LHR-SIN flight many times over since I booked in 2019 and each time they have left ticket open and said I can call anytime, indefinitely in the future to rebook it on any flight on the LHR-SIN route.

[Rui N.]

Lady London wrote:

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.

Doubtful that the original draft of the legislation was in French. English has been the working language of the Commission since the mid 1990s, and all proposals for legislation are in English.

[JDB]

meta wrote:

I just want to add that it is extremely rare that the MCOL awards costs. It will have to be such a vexatious claim and none of @Jerry said is that.

@meta the award of costs is rare, but not so unusual and it may very well be considered vexatious to go to MCOL after losing at arbitration simply because you didn’t like the answer and from the information we have been given there is no error in law. BA will argue very strongly that this case has effectively been decided and they should not be put to the cost of re-arguing the same case. MCOL isn’t just a second opportunity to try again in the hope of getting a different answer. It is quite wrong for the OP not to be made aware of the risks.

[JDB]

meta wrote:

Also want to emphasise how ridiculous is to claim it is unreasonable to ask to be rebooked indefinitely. Good airlines offer it as a matter of fact.

I currently hold a totally open ticket – not a voucher or anything similar with Singapore Airlines in F. They’ve cancelled my LHR-SIN flight many times over since I booked in 2019 and each time they have left ticket open and said I can call anytime, indefinitely in the future to rebook it on any flight on the LHR-SIN route.

I’m not sure how SQ’s apparent F policy helps in the application of EU261 by CEDR or the County Court! Overall, BA has been one of the most generous and flexible of the major European airlines. AF/KL and LH group airlines seem to have treated people much worse and you and others have reported difficulties with ANA.

The concept of indefinite rebooking / indefinitely open ticket simply cannot be found in any reasonable statutory interpretation of the “at the passenger’s convenience” term in the legislation.

• This reply was modified 55 years, 1 month ago by .

[Rui N.]

Going to MCOL after losing in arbitration is the usual procedure and there is nothing vexatious about it.

[JDB]

Rui N. wrote:

Going to MCOL after losing in arbitration is the usual procedure and there is nothing vexatious about it.

It would be helpful for the affected parties if you could share the precedents upon which you base your comment.

[Rui N.]

LOL precedent for going to MCOL after CEDR LOL
Well, ask Rhys, he wrote an article about doing just that. Unbelievable.

[JDB]

Rui N. wrote:

LOL precedent for going to MCOL after CEDR LOL
Well, ask Rhys, he wrote an article about doing just that. Unbelievable.

I’m not saying it’s not possible, but you need to look carefully at the circumstances of the case. Here you have a subjective decision (ie effectively the judge’s interpretation of “convenient”) and the OP will incur fees of almost £1,000 (on his figures) to bring the case. That’s not a step anyone should take lightly. It also requires a lot of work and stress to get right.

• This reply was modified 55 years, 1 month ago by .

[Umba]

Firstly, @jerry I’m sorry to hear that CEDR adjudicated against you.

I know this won’t help but it’s frustrating to read your outcome when there are reports of similar CEDR cases finding for passengers. There have also been reports on Flyertalk of how BA have made changes to ticket validity, notably around 8th July 21 when it was changed to 12 months from date of original outbound flight. It appears this was rescinded possibly in Oct 21 as follows:

• For tickets that haven’t been reissued it will be 1 year from the original date of issue for the ticket
• On any tickets that have been reissued it will be 1 year from the date the reissue was completed
• As before on part flown tickets ticket validity will be 1 year from the date the outbound was flown.

There have also been numerous reports of rebooking outside of validity being allowed in MMB or over the phone by agents. As previously stated, very much a lottery.

Good luck if you decide to go down the MCOL route.

I currently have a similar CEDR case awaiting my response to BA’s defence so will update when I receive adjudication.

[Jerry]

The Adjudication contains 14 paragraphs, many of them simply outline the facts of the case I have already posted here.

Paragraph 12 is where the Adjudicator finds for British Airways. I have decided to reproduce it in full here to help other claimants frame their evidence to CEDR accordingly. In my evidence I strongly countered BA’s 12 month ticket validity argument and emphasised the airline’s imposed booking terms cannot over-ride the legislation. The adjudicator was more persuaded by the airline’s argument.

Paragraph 12.

I note that Article 8(1)(c) of Regulation 261 provides that in case of cancellation, passengers shall be offered re-routing at a later date at their convenience. The Airline argues that this provision does not give passengers a right to rebooking at any time of their choosing. In this regard, the Airline avers that if the Regulation could be interpreted to mean that a passenger has a right to be rebooked at any time, this would mean that a passenger could rebook in several years’ time. The Airline asserts that this would be counter to the purpose of the Regulation, which is to reduce the trouble and inconvenience caused to passengers. The Airline avers that the Regulation cannot be interpreted as providing an indefinite right of rebooking at the convenience of the passenger, and that Article 8(1)(c) must therefore be read in light of its Conditions of Carriage. In this regard, I am not persuaded that this provision can be interpreted to mean that a passenger has a right to be rebooked at any time. As such, I accept the Airline’s argument that Article 8(1)(c) cannot be interpreted as providing an indefinite right of rebooking at the convenience of the passenger and that this would be counter to the purpose of the Regulation, which is to reduce the trouble and inconvenience caused to passengers. As such, I am persuaded that this provision must be read in light of the Airline’s Conditions of Carriage, which provide that a ticket is valid for one year.

[points_worrier]

Thanks @Jerry.

Quite clearly BA’s condition of carriage cannot have precedence over EC261/2004, but CEDR have chosen BA’s CoC to provide a limit where EC261/2004 does not specify one. This strikes me as errant for 2 reasons:
– BA could just simply set their CoC to state validity is 1 second beyond your flight – following CEDR’s logic this would absolve them of most EC261 rights
– EC261/2004 DOES PROVIDE a limit to the extent of the powers under Article 8: the explanatory guidance states that you can make this choice once, and only once. In my mind, this limits you to tickets available when they give you this choice – usually the ticket window at 355 days.
You have not said how far after your cancelled flights the Sept 2022 ones are after the Sept 2021 ones are – were they more than a year?

[JDB]

points_worrier wrote:

Thanks @Jerry.

Quite clearly BA’s condition of carriage cannot have precedence over EC261/2004, but CEDR have chosen BA’s CoC to provide a limit where EC261/2004 does not specify one. This strikes me as errant for 2 reasons:
– BA could just simply set their CoC to state validity is 1 second beyond your flight – following CEDR’s logic this would absolve them of most EC261 rights
– EC261/2004 DOES PROVIDE a limit to the extent of the powers under Article 8: the explanatory guidance states that you can make this choice once, and only once. In my mind, this limits you to tickets available when they give you this choice – usually the ticket window at 355 days.
You have not said how far after your cancelled flights the Sept 2022 ones are after the Sept 2021 ones are – were they more than a year?

I don’t think CEDR actually says in this adjudication that the CoC takes precedence over the legislation. I think it is simply saying that the ticket validity/CoC is not an irrelevant/immaterial consideration as in …must therefore be read in light of its CoC…. That must surely be correct; i.e. the original contract needs to be considered, but then considered in the context of the specifics of each case.

The CEDR decision leaves one in the same ‘no man’s land’ we have always been in, somewhere between the one year of the CoC and ‘indefinite’. BA’s focus on ‘indefinite’ is unfortunately quite smart as it could sound unreasonable and distracts from what a passenger is actually requesting.

[meta]

@JDB It’s called re-ticketing and IATA allows for that (BA just needs fo type in INVOL). Each time BA cancels the flight, they can just re-issue the ticket with new validity. They can also wait with re-issuing as IATA allows it. You are also not basing your statement under the law. The law does not define time limit nor does it in fact define what is reasonable. It is quite reasonable for anyone to want to be rebooked at the same time of the year they originally booked.

Regarding ANA, you’re comparing apples and pears. Non-EU airline vs EU/UK airline. It is also very rare that we see here any reports of LH, AF/KLM denying EU261 rights.

• This reply was modified 55 years, 1 month ago by .

[JDB]

Sorry, @meta I had forgotten that SQ (the only airline you cited as offering indefinite rebooking) was an EU airline.

[points_worrier]

JDB wrote:

Sorry, @meta I had forgotten that SQ (the only airline you cited as offering indefinite rebooking) was an EU airline.

Come, come. There is no suggestion EC261/2004 offers ‘indefinite’ rebooking, and just because EC261/2004 dictates the legal requirement, doesn’t mean airlines cant choose to go above and beyond this level (regardless of which jurisdiction they are in).

[meta]

JDB wrote:

Sorry, @meta I had forgotten that SQ (the only airline you cited as offering indefinite rebooking) was an EU airline.

You also haven’t provided any evidence of EU airline either denying EU261. I was just illustrating how ridiculous BA’s unwillingness to allow rebooking beyond 12 months from ticketing. Each time the flight is cancelled, you should be issued with entirely new ticket anyway. So if BA (or any other airline for that matter) keeps cancelling then yes you have indefinite right to be rebooked until they actually manage to fly you. If you do not allow rebooking every time Ba cancels a flight, what is to stop BA actually just running a fake airline without any flights? Just take money from the customer and keep cancelling indefinitely.

• This reply was modified 55 years, 1 month ago by .