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MCOL for a flight that was cancelled over a year ago?

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  • slidey

    I had a flight cancelled by BA in May 2021 which had been sat in its cancelled state ever since. When I try to get it rebooked, BA are now refusing and offering only a refund because its outside of the ’12 month validity’.

    Is there any risk that this would be considered an unreasonable rebooking request at mcol due to the time since the original flight date? Eu261 of course says later date at the passengers convenience. Incase it matters, afaik italy only removed its random covid test on arrival policy for june this year, I wasnt going anywhere that had a test on arrival due to the possible risk of a positive test so it was not convenient to rebook it prior to that policy being removed.

    Currently theres an alternative flight on ryanair available for 300 (BA flight is currently going at 600), given that BA have refused to rebook – I have a recorded call and also a refusal for a different reason from a chat log transcript – would it now be reasonable to make my own booking and then claim the money back from BA or would I need to do anything else with BA first?

    I expect BA would then reject the claim, which is where the question about if it could get rejected at MCOL comes in.

    JDB

    I think your prospects at MCOL or CEDR would be fairly poor. While there is no specific precedent for what “at a later date at the passenger’s convenience” means or what its boundaries are, leaving a short haul ticket like this for over a year in the expectation of it simply being an eternally open ticket doesn’t make a very sympathetic case and the ticket validity argument will carry some weight.

    points_worrier

    Yeah its over a year since you were informed of the cancellation, so I would say your prospects are not great.

    The exception is if BA never offered you any alternatives at any point. The ECJ ruling of Radu-Lucian Rusu, Oana-Maria Rusuv and SC Blue Air – Airline Management Solutions SRL (Case C-354/18) states that for Article 8(1) of EC261 offering you re-routing, there should be no ‘obligation whatsoever’ on the passenger seeking out re-routing options – it is for the airline to seek you out and offer them to you. If the airline never contacted you, you have not been given your right: you could try and argue that the clock starts when you actually got around to contacting them. A bit tenuous, but might work, especially at CEDR where there’s nothing to lose. Worst case scenario is they award you the cost of your original flight.

    points_worrier

    PS to add: situation would be strengthened a lot if you could show you repeatedly tried to contact BA, but couldn’t get through.

    JDB

    Yeah its over a year since you were informed of the cancellation, so I would say your prospects are not great.

    The exception is if BA never offered you any alternatives at any point. The ECJ ruling of Radu-Lucian Rusu, Oana-Maria Rusuv and SC Blue Air – Airline Management Solutions SRL (Case C-354/18) states that for Article 8(1) of EC261 offering you re-routing, there should be no ‘obligation whatsoever’ on the passenger seeking out re-routing options – it is for the airline to seek you out and offer them to you. If the airline never contacted you, you have not been given your right: you could try and argue that the clock starts when you actually got around to contacting them. A bit tenuous, but might work, especially at CEDR where there’s nothing to lose. Worst case scenario is they award you the cost of your original flight.

    The standard BA cancellation email offers the various options so that’s quite a difficult argument to run, quite apart from the fact that trying to use EU precedents in the English county courts is already a bit of a stretch. However, as you say, there is nothing to be lost by going to CEDR, but be pleasantly surprised if you get anything back rather than expecting to get the money back as you haven’t played your cards to your best advantage.

    yonasl

    I don’t feel that “I wasn’t flying to anywhere that had a test on arrival” could be considered “proportionate”. It is not like you couldn’t fly to many places that didn’t have that requirement.

    Similar to saying “I bought a ticket to a country that now requires a Visa and I cannot be bothered”.

    meta

    @JDB English courts must use and consider pre-Brexit rulings in regards to UK261 as these were automatically also UK law on Brexit day.

    In fact, there are no “precedents” in ECJ rulings, they have normative effect. Precedents are a common law construct.

    OP should just ask for a refund unless of course the original flight was cancelled within 14 days of departure. In that case, OP has 6 years to claim cancellation compensation.

    • This reply was modified 52 years, 7 months ago by .
    StillintheSun

    Here is a link to the ECJ case cited above:
    https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62018CJ0354&qid=1656921664833&print=true

    Hopefully you can search and find most ECJ cases on the site.

    Richie

    Yeah its over a year since you were informed of the cancellation, so I would say your prospects are not great.

    The exception is if BA never offered you any alternatives at any point. The ECJ ruling of Radu-Lucian Rusu, Oana-Maria Rusuv and SC Blue Air – Airline Management Solutions SRL (Case C-354/18) states that for Article 8(1) of EC261 offering you re-routing, there should be no ‘obligation whatsoever’ on the passenger seeking out re-routing options – it is for the airline to seek you out and offer them to you. If the airline never contacted you, you have not been given your right: you could try and argue that the clock starts when you actually got around to contacting them. A bit tenuous, but might work, especially at CEDR where there’s nothing to lose. Worst case scenario is they award you the cost of your original flight.

    The standard BA cancellation email offers the various options so that’s quite a difficult argument to run, quite apart from the fact that trying to use EU precedents in the English county courts is already a bit of a stretch. However, as you say, there is nothing to be lost by going to CEDR, but be pleasantly surprised if you get anything back rather than expecting to get the money back as you haven’t played your cards to your best advantage.

    The cancellation e mails I’ve had from BA aren’t fully compliant with Article 8 and MMB hasn’t been either.
    How long is it since 2004/5?
    How long is it reasonable for businesses to get their compliance with legislation act together?

    meta

    Yes, some of the cancellation emails that BA has been sending in the past weren’t fully compliant. They got slightly better. Now every cancellation email includes the following wording:

    “Information on your rights when your flight is cancelled, including rebooking or requesting a refund, can be found here.”

    Unfortunately there is no prescribed wording, nor penalty for airlines not complying, although under Article 15 you can take them again to court if you later find out that your rights haven’t been fully met.

    • This reply was modified 52 years, 7 months ago by .
    Richie

    Providing information links doesn’t satisfy Article 8’s “…shall be offered…”.

    Is knowingly not complying just unreasonable?

    slidey

    After 6 days BA finally replied to the twitter DM I sent (I had got thru on the phone during that time) and stated that as the ticket is outside its validity period they have sent it to the refunds team to issue a refund, which I didnt ask them to do.

    Regardless of how likely an MCOL would be, they shouldnt be automatically issuing a refund without my authorization. Are MCOL claims hard capped at £35 for claims under 300 or is there a risk that you can end up having to pay more than that if you lose?

    meta

    Providing information links doesn’t satisfy Article 8’s “…shall be offered…”.

    Is knowingly not complying just unreasonable?

    As I said there is no prescribed format in the regulation on how informing should look like, only that they have to inform you which they do. Providing information links is one way to go about it.

    meta

    After 6 days BA finally replied to the twitter DM I sent (I had got thru on the phone during that time) and stated that as the ticket is outside its validity period they have sent it to the refunds team to issue a refund, which I didnt ask them to do.

    Regardless of how likely an MCOL would be, they shouldnt be automatically issuing a refund without my authorization. Are MCOL claims hard capped at £35 for claims under 300 or is there a risk that you can end up having to pay more than that if you lose?

    Just go back to them and say that you do not accept a refund and you will be seeking your rights under UK261 at relevant courts. If you lose at MCOL it is £35 only, unless you make a vexatious claim and BA will need to prove it is and the judge would need to agree. It is very unlikely, it is so rare that I heard that it happened only once, but was overthrown then at appeal.

    JDB

    @meta while you are right about it being exceptionally unlikely in a case like this that the claimant would have costs awarded against them, the fact you have only heard of one case of costs being awarded in the small claims track gives a wholly wrong picture. This happens all the time, there are hundreds of cases where costs are awarded against a claimant or a defendant losing a claim on a variety of bases such as unreasonably refusing to vary directions, unreasonably resisting strike outs/set aside applications (a particular point of danger), seeking to accept an earlier offer late in the proceedings such that the other party had unreasonably incurred costs and other general abuses of process. The bar for unreasonable behaviour is fairly high, but not so high that you should exclude it entirely.

    meta

    What you are citing is for cases where individuals are involved or between companies. It is very rare that any judge will rule it when it comes to individual vs. big corporation such as an airline. There would also need to be a separate hearing for awarding costs and then you can even appeal that.

    JDB

    What you are citing is for cases where individuals are involved or between companies. It is very rare that any judge will rule it when it comes to individual vs. big corporation such as an airline. There would also need to be a separate hearing for awarding costs and then you can even appeal that.

    I was specifically referring to cases of individuals vs big companies and individuals as defendants vs small claims by big corporations where the individual’s conduct has led to costs awards against them in the small claims track.

    I accept it is rare but it is very far from unheard of and your one case gives the wrong impression. I only mentioned this at all because we have had cases reported here in recent days involving strike outs and set aside apps and people need to be very aware of the potential risks of resisting such satellite litigation.

    • This reply was modified 52 years, 7 months ago by .
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