Lost at CEDR with BA – what next?

[Lady London]

The point is that the passenger is not asking for “indefinite”. That is BA’s mis-statement of what he is asking for. BA is exaggerating the passenger’s request in order to “blame the victim”. Just like Harry T’s mis-statement of passenger wanting “any flight he finds *desirable*”. Again, blaming the victim when it’s the passenger who is being messed around by BA. The passenger is being accused by establishment interests of wanting more porridge than he’s asking for.

Luckily the legislation is very clear. Passenger has the choice of refund, travel atbsame time or travel at a later date convenient to passenger. Thank G*d for EU261 -:which is tried and tested to give passengers rights when airlines mess them around. How much more would BA abuse passengers if they could get rid of these reasonable rights.

[SamG]

I personally think 1yr after the date of the cancelled flight is reasonable – and so did BA for a good while. I think you’d have a good shot in court on this one – the legislation doesn’t suggest a deadline – just that it should be at your convenience and only convenient to have a holiday at the same time each year is reasonable by most peoples measure

As a slight aside though – it’s highly unlikely IMO that BA will fly this route for the forseeable due to the COVID restrictions and Russian airspace closure. BA has a JV on this route with JAL / Finnair / (Iberia, not useful as I doubt they’d resume + needs award availability) and you should have/should be able to be rebooked -3/+14 days under standard customer guidelines for Siberian JV routes.

[Lady London]

At least the judge at MCOL is likely to be a fulltime professional court judge, albeit he may be on a circuit type of arrangement, as compared to a CEDR adjudicator who I gather are quite variable as to where they come from and not necessarily fulltime or permanent.

[ChrisC]

I’ve read on here and FT that the CEDR arbitrators can and do make different decisions even though the facts of the case are identical leaving one set of passengers denied their rights based on that the arbitrator ‘feels’ about the case.

This is less likely to happen with MCOL where a judge will assess the case against the law and not how they got up that morning (or if BA had previously lost their luggage_

If this was me I’d be more than happy to take this to MCOL

[JDB]

ChrisC wrote:

If this was me I’d be more than happy to take this to MCOL

Would you really be “happy” when you need to pay over £800 of court fees as advised by the OP and would potentially be at some risk of BA’s costs? That’s ignoring the cost of your time.

The law is deliberately vague so as to allow each case to be decided on its facts. It simply isn’t a black and white decision, so two judges could easily come up with a different and properly reasoned judgment and neither be wrong in law. In this instance BA will big up its win at CEDR saying it was the decision of a specialist aviation arbitration service etc. and the DJ or DDJ considering the case may well not have seen a similar case. [with the benefit of hindsight the OP might have been better to go to MCOL initially although his reasoning for not doing so was entirely rational and sound]

MCOL requires the claimant to establish the proper legal basis for the claim which CEDR does not. This is a little harder than it might seem at first glance.

These, and many other issues are all factors anyone needs to weigh up carefully.

Your comment re judges and getting up in the morning would suggest you haven’t appeared before very many.

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

[Magarathea]

Hi Jerry. I have gone to CEDR twice before, once against TUI and once against BA and was successful on each occasion. I am aware that CEDR say there is no right to appeal but on the BA case which was to do with downgrading from First to Club on a 2-4-1 reward flight, CEDR found in my favour but then made a hash of calculating the 75% reimbursement due. This included some real schoolboy errors in the reimbursement calculation and their decision that the companion voucher passenger was not due any reimbursement! I successfully got CEDR to review the adjudication decision and they rectified their errors and I was fully 75% reimbursed for the downgrade. My case was definitely helped by the schoolboy error in the calculations. So, if you think they have made an error in their decision then it would do no harm to try to challenge it with them. Good luck!

[Jerry]

Magarathea wrote:

Hi Jerry. I have gone to CEDR twice before, once against TUI and once against BA and was successful on each occasion. I am aware that CEDR say there is no right to appeal but on the BA case which was to do with downgrading from First to Club on a 2-4-1 reward flight, CEDR found in my favour but then made a hash of calculating the 75% reimbursement due. This included some real schoolboy errors in the reimbursement calculation and their decision that the companion voucher passenger was not due any reimbursement! I successfully got CEDR to review the adjudication decision and they rectified their errors and I was fully 75% reimbursed for the downgrade. My case was definitely helped by the schoolboy error in the calculations. So, if you think they have made an error in their decision then it would do no harm to try to challenge it with them. Good luck!

@Magarathea Thank you for this information. Prompted by you I see that CEDR will entertain complaints (made within 2 months) based on the criteria below (apologies for formatting errors, original link below).

I would probably have to argue (f) to complain. Is it irrational to adjudicate that the airline’s T&C over-ride the legislation?

CEDR Complaint issues suitable for review:
a) Where the process followed in your case was not in line with the process as provided for in the CEDR Aviation Adjudication Scheme Rules;
b) WhereyourcasehasbeenwithdrawnfromtheSchemeforareasonotherthanthose permitted by the CEDR Aviation Adjudication Scheme Rules (e.g. your case has been deemed ‘out of scope’ by CEDR when it should be ‘in scope’);
c) Where the quality of service by CEDR staff has been unsatisfactory (e.g. timeframes have been outside those set out in the Scheme Rules, treatment by CEDR staff has been unsatisfactory);
d) OthermattersatthediscretionofCEDRortheCivilAviationAuthority;
e) Inreachingthedecisioninyourcase,theadjudicatorignoredrelevantinformation
and/or took into account irrelevant information;
f) In reaching the decision in your case, the adjudicator made an irrational
interpretation of the law.

https://www.cedr.com/wp-content/uploads/2021/10/Aviation-Complaint-review-process-oct-21.pdf

The Adjudicator’s name is on the Adjudication. CEDR doesn’t claim it’s adjudicators are lawyers.

[Magarathea]

Hi Jerry. It is often rightly quoted on HFPs that BA’s T&Cs do not override UK261 regulations. I would give it a go. Nothing to lose. Good luck.

[ChrisC]

@jdb – yes based on what has been posted here I would take this to MCOL. Appreciate thst others wouldn’t though and that’s fine.

Of course taking BA MCOL is the mechanism that is more likely to make BA legal comply with the regulation than the customer services side appears to be doing once they receive the Letter Before Action.

[Mouse]

In my CEDR case I pre-empted BA’s argument by saying (with reference to the Consumer Rights Act 2015) that the one year ticket validity must be disregarded as it is an unfair term due to the fact that it would deny me my statutory rights (under EU261) in the event of non-performance of a contract. No idea whether this had any bearing on my case of course, or even whether I am correct on that point – I may just have gotten an arbitrator who got out of bed on the right side.

It would be interesting to hear what case law exists around the meaning of the work convenient.

[Lady London]

@Jerry if you are at a moment in your life when you really can’t take risks financially and the sum involved in getting it to MCOL would matter, then yes you could query the CEDR decision.

Otherwise as there is always inertia once any kind of decision has been made in all sorts of situations, even if it’s likely it was a bad decision, personally I would simply reject the decision and go to MCOL.

I have absolutely no idea whether the same adjudicator gets it back to review, or if something sensible is done instead, but I would consider it a perverse decision that overlooks the written law and quite a bit of case law, and take it somewhere where the law will be followed and you would be less likely to get a perverse decision. I certainly wouldn’t take the risk of reinforcing a bad decision by letting it be made again in a place that had already failed me.

PS Assuming I receive the right decision at MCOL, I wouldn’t be above communicating this back to CEDR either.

[JDB]

@Lady London – please can you provide us with details of the case law so that @Jerry and others in his position can use those authorities.

[points_worrier]

@Jerry, from what you’ve said I would, at a minimum:
– Contact CEDR and say why you’re unhappy. They may well do nothing, but you’ve tried
– Send a letter before action recorded delivery to BA’s legal team, with a 14 day deadline. The legal team seem more inclined to resolve issues, and this doesnt commit you to actually going to MCOL. But may work.

After these, you can decide if you actually want to proceed.

[StillintheSun]

For my penny’s worth I would complain to CEDR on ground f and assert that the adjudicator’s decision is in direct contravention of Article 15(1) of the EC Flight Regs which reads as follows:
“Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by derogation or restrictive clause in the condition of carriage.”

On my reading of your arbitrator’s decision he has allowed exactly what the EC Flight Regs prohibits BA from doing. An specialist arbitrator should at the very least be expected to know the provisions of the BA Flight Regs even if you did not specifically draw his attention to Article 15.

HT: To Meta who drew my attention to this section.

I’m due to get my decision next week so I’ll let you all know how I get on 🙂

Good luck!

[points_worrier]

StillintheSun wrote:

For my penny’s worth I would complain to CEDR on ground f and assert that the adjudicator’s decision is in direct contravention of Article 15(1) of the EC Flight Regs which reads as follows:
“Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by derogation or restrictive clause in the condition of carriage.”

On my reading of your arbitrator’s decision he has allowed exactly what the EC Flight Regs prohibits BA from doing. An specialist arbitrator should at the very least be expected to know the provisions of the BA Flight Regs even if you did not specifically draw his attention to Article 15.

HT: To Meta who drew my attention to this section.

I’m due to get my decision next week so I’ll let you all know how I get on 🙂

Good luck!

Article 15 directly seems to contradict both what BA said and CEDR resonse! Didnt know this. Thanks for sharing!

[JDB]

Article 15 directly seems to contradict both what BA said and CEDR resonse! Didnt know this. Thanks for sharing![/quote]

In the case raised today, I don’t think the adjudicator actually says the BA Conditions of Carriage apply or take precedence, it is more the ‘indefinite’ argument they prefer, so there isn’t a conflict with Article 15. I think that the 12 month ticket limitation is unarguable (by BA) – the open question is how far beyond that can one go or is deemed reasonable. CEDR has decided differently, so it depends on the Adjudicator and the facts.

[points_worrier]

JDB wrote:

Article 15 directly seems to contradict both what BA said and CEDR resonse! Didnt know this. Thanks for sharing!

In the case raised today, I don’t think the adjudicator actually says the BA Conditions of Carriage apply or take precedence, it is more the ‘indefinite’ argument they prefer, so there isn’t a conflict with Article 15. I think that the 12 month ticket limitation is unarguable (by BA) – the open question is how far beyond that can one go or is deemed reasonable. CEDR has decided differently, so it depends on the Adjudicator and the facts.[/quote]

“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”.
This does seem to suggest they read the conditions of carriage as trumping EC261/2004 Article 8, surely?

[JDB]

points_worrier wrote:

JDB wrote:

Article 15 directly seems to contradict both what BA said and CEDR resonse! Didnt know this. Thanks for sharing!

In the case raised today, I don’t think the adjudicator actually says the BA Conditions of Carriage apply or take precedence, it is more the ‘indefinite’ argument they prefer, so there isn’t a conflict with Article 15. I think that the 12 month ticket limitation is unarguable (by BA) – the open question is how far beyond that can one go or is deemed reasonable. CEDR has decided differently, so it depends on the Adjudicator and the facts.

“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”.
This does seem to suggest they read the conditions of carriage as trumping EC261/2004 Article 8, surely?[/quote]

I read it as simply saying the CoC needs to be taken into consideration, which must be correct. There is no language to say one trumps the other. The ensuing sentences pick up the ‘indefinite’ issue but don’t say 12 months is the limit.

[Lula]

Hmmm read all this with interest as I’m a few steps behind regarding avios flights to Bangkok in club and returning from Singapore in first that were cancelled late last year. Was told on the phone that I could rebook up until the ticket validity deadline of August 2022 (because it had been reticketed following a change in August 2021).

We’ve been travelling since late November in South America (a replan from the original Asia trip) and due to return in June and have no desire to travel to Bangkok so soon after we return.

I am wondering whether the fact that BA only operate that route seasonally now would make a difference to the adjudicator’s view of reasonableness.

Like the OP I am not looking for indefinite rebooking, simply a year (more or less) after the original departure.

Agree with those who have strongly questioned CEDR decision. EU rights are clearly expressed and there’s at least a question as to whether the adjudicator erred in law. Especially given previous reports of success at MCOL.

[points_worrier]

JDB wrote:

I read it as simply saying the CoC needs to be taken into consideration, which must be correct. There is no language to say one trumps the other. The ensuing sentences pick up the ‘indefinite’ issue but don’t say 12 months is the limit.

I personally do feel 12 months (from date of cancellation, or possibly date of notice of cancellation, if your 3 Article 8 options are clearly communicated) is reasonable.

It is not quite clear from this case whether it was just the wrong side of the 12 month mark…

[Lula]

@points_worrier agree that 12 months from cancellation might be reasonable in some cases. But in other cases it might leave the consumer with very little choice. If there’s a limit placed on their convenience then it should be what’s reasonable in all the circunstances, taking their plans, commitments and constraints into account.

[StillintheSun]

British Airways’ assertion that there cannot be an indefinite future right to rebook is of course a straw man. I doubt any of of us has ever asserted that we are entitled to the same. It a classic and frankly rather obvious tactic for a litigant to shoot down a bad argument that no one has in fact made! In my claim I made it clear that I was not seeking the same but rather a rebook 13 months from the date of cancellation and less that a year on from the original flight date and provided reasons as to why these dates were required. I shall see what the arbitrator make of it.

[points_worrier]

StillintheSun wrote:

British Airways’ assertion that there cannot be an indefinite future right to rebook is of course a straw man. I doubt any of of us has ever asserted that we are entitled to the same. It a classic and frankly rather obvious tactic for a litigant to shoot down a bad argument that no one has in fact made! In my claim I made it clear that I was not seeking the same but rather a rebook 13 months from the date of cancellation and less that a year on from the original flight date and provided reasons as to why these dates were required. I shall see what the arbitrator make of it.

The liability could be many years if BA continually cancel subsequent replacement flights. But this is not unreasonable as it requires ongoing failure of Ba to fulfil the contract.

In your case @stillinthesun I would point out:
– the clock only starts when BA tells you of your 3 options under Article 8, and gives you a choice (as suggested by the interpretive guidance). BA invariably does not do this (and the burden is on BA to show they offered this choice. An option for a travel voucher is not this choice). Highlight this failure as a reason for a delay
– last summer BA were letting people rebook 1 year from date of the cancelled flight. This is what you want. BA have now arbitrarily changed this.

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

[Jerry]

Thank you everyone. 18 different contributors on this thread. I appreciate the considerable interest and feedback.

Can I suggest everyone posts their CEDR success/ failure to help other HFP readers with their evidence?

I am indebted to @Magarethea. I didn’t know CEDR had a complaints procedure. That will be my next step. However I think there is a real danger that in general ombudsman services funded by the companies being complained about are losing all credibility. That will certainly be true of CEDR if they are being ‘played’ by BA.

My brother, who is a lawyer and in the courts daily, wisely cautions against the lottery of MCOL and judges. I can live with the loss of two points based premium class airline seats to a farflung destination. I’ll put the court fees towards something more reliable.

I’ll post the result of the CEDR complaint, but don’t hold your breath.

Thank you again everyone.

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

[Lady London]

JDB wrote:

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.