Seeking compensation query – BA response

[Flyer123]

Dear Forumites,

Was on flight BA0036 on a Business-class return (241) on 27 Aug 2022 from MAA-LHR. The flight was delayed before take-off by 4+ hours and eventually landed 222 minutes late. We were using the lounge facilities in MAA and were there most of the time, so no extra expenses.

I submitted a Delay compensation claim to BA and their response came back as – Your claim’s been refused because although the BA0036 on 27 August was delayed by 222 minutes, only 133 minutes of this delay was our fault.
On the day you were due to travel, Air Traffic Control restricted operations into a block of air space your aircraft needed to travel through. This caused the other 89 minutes delay. I’m afraid this was our of our control and caused unforeseen disruption to our schedule.
=================================
Is there anyway to verify this is true ? What would be my next steps (if any) to get EU261 compensation if I am eligible ?
Thanks in advance all for your inputs.
~Sundar

[JDB]

Unfortunately, it’s very difficult to verify and while the APR say the onus is on the airline, it doesn’t say at which point. If you wish to pursue the matter you will need to go to CEDR or MCOL – reply to the refusal asking, within 14 days, for evidence to support their refusal and that failing the provision of this and/or continued refusal, you will take the matter to CEDR/MCOL without further reference to them.

[Flyer123]

Thanks JDB for the response.

[StillintheSun]

If there are two delay periods, one caused by BA and one ATC, all is not lost! If the ATC delay occurred during or after the BA delay I would argue that but for the BA delay you would not have been caught up in the ATC delay (your flight would have left prior to the ATC delay) and therefore given that the BA delay was causative of the total delay period of your flight, BA is liable for all of it.

I’m afraid it’s unclear from BA’s response whether the restrictions were all day, part of the day and of course the start of them.

I’m working from 1st principles on this one and so very happy to be corrected if someone knows better in the EC Regs context.

[Lady London]

@StillintheSun I had been thinking the same.

Since we’re getting a few new reports of BA trying to deny compensation using this new method of trying to split delays so as to remove enough of the minutes to take the delay below the minimum length of delay for compensation to be payable, by saying those x minutes part of the delay were not their fault, I am very glad you’ve said this should be able to be challenged if a BA delay was earlier than another part of the delay they’re claiming was out of their control (eg ATC or weather) or other exceptional circumstances.

[BA Flyer IHG Stayer]

This parsing of delays is not a ‘new method’ it’s been done by airlines for years and has yet to receive much if any pushback by the various regulators or legal system.

There is one lower court case I remember regarding lightening where the judge ruled that of the total delay time the time taken to do the necessary safaty checks could be excluded but not the delay caused by the airline wanting it’s own approved engineer to do a final sign off despite the local engineer being qualified with the result that the lower amount of delay compensation applied due to the airline caused part of the delay excedding the time limits.

I don’t think there is much mileage in argueing ‘if we’d taken off on time we’d have missed the bad weather / ATC restrictions / Airport Curfew we wouldn’t have been delayed’

You can bet your house that if there was any mileage in challenging this parsing then the likes of Bott & Co would have done something about it years ago.

[JDB]

Causation is a point that rather escapes CEDR. A judge would immediately take the point but it’s quite difficult to prove and requires payment of issue fees (£80 for a couple seeking 2 x £520 compensation) and quite likely a hearing fee of £123. Also, the passenger is flying somewhat blind as BA might easily come up with a conclusive ATC defence which won’t be seen until paying the fee.

[StillintheSun]

@JDB
Where is the evidence for the last assertion? Have you even run a case through CEDR?

Most of the arbiters have at least trained as lawyers (even if not currently practicing) and the causation principle mentioned above is basic. No one has raised any case law to suggest that the EC Regs are somehow exempt for this.

No need to go to MCOL and you only lose £25 if you completely lose at CEDR. It is not a lot to lose given the delay has already occurred and its not as if you have purchased a new flight. Moreover, it will cost BA more to oppose you in any event.

Of course, getting the information as to delays would be a little difficult but in my first written submission before CEDR I would simply state:
“If BA wish to rely upon any other delay other than that caused by themselves, they are asked to state the time such delay began and its duration.” If BA failed to do the same in their defence, in my response following the defence I would note that failure and state that as there was clearly a total delay of sufficient length to given rise to compensation and BA have admitted that they have caused a delay, the onus is on BA to demonstrate than an alternative delay reduces the total delay length to avoid liability. In circumstances where they have failed to provide sufficient evidence (despite requested to do so) to justify their assertion that an alternative delay should be taken into account should be ignored.

I do think that glorious win against Creation demonstrates that a little ambition over excessive conservatism yields results not least when there is very little to lose by a throw of the die.

[JDB]

@StillintheSun I commented advisedly, after been being involved in 23 cases, having read countless other cases and met a case handler/arbitrator. While they receive some legal training, you would pressed to find many that have trained as lawyers, particularly as the pay is that of a graduate trainee, so you don’t get especially high calibre people.

I don’t think CEDR is BA biased as many here suggest, but when presented with rather muddled and verbose claims, a simpler/better presented case by BA might win the day. Many decisions I have seen are totally extraordinary – both wins and losses, including decisions based on matters not pleaded by either party that are objectively incorrect. Sometimes, it has been difficult to escape the feeling that an initial decision was made and the reasoning then retrofitted.

While the wording you suggest can be added, you will find a) they don’t take much notice and b) they don’t like being told how to do their jobs. I have seen a small number decisions with complex/multi cause delays and they seem to have some difficulty analysing them/breaking them down. BA is pretty adept at dressing them up in a favourable light and what is accepted as evidence is pretty low level.

PS – re Creation, there hasn’t been a “glorious win” yet; the voucher eligibility will determine that. Also, bear in mind that most people lost their cards thanks to the actions of a greedy few, so many have lost the ongoing benefits for the last 18 months.

[StillintheSun]

@JDB

That is a good chunk of experience in these matters! I am happy to stand corrected with regards to your experience 🙂

Submissions are not telling the adjudicator how to do their job. I set them out on here in exactly the same manner as an advocate would do in Court; succinctly with regard to basic legal principles. It is then for the decision maker to reach a conclusion.

I agree that muddled, verbose claims are definitely more likely to fail even if the law is addressed. However, that comes down to persuasive ability (not law) which if irrelevant would render my occupation pretty pointless.

Finally, I’d hazard that the ability of HFP readers (given what Rob says about their background) would be much better than average at presenting their case and knowing the law (it’s covered plenty oh here). These characteristics need to be taken into account when assessing prospects before CEDR.

I do think you were rather negative with regards to prospects of success against Creation and in respect of that issue many people have got something as opposed to nothing had the not brought their complaints.

As ever I respect your viewpoint, I just quite often disagree with it. Hardly an uncommon scenario when different individuals discuss all manner of cases!

[Lammy52]

On a similar theme, we were due to fly MIA – MAN via LHR which was delayed both in departing MIA, but also LHR-MAN on the flight we had been rebooked on to at MIA.

In all we were due to arrive originally in MAN at 9am, but actually arrived there at 5pm. I have e mailed BA, no reply, and on contacting by phone was told to claim online. I have attempted to, but the form only gives details of our rebooked flight to Manchester, therefore not indicating the full period of delay.

Can anyone advise how I may pursue the claim, other than MCOL or CEDR, which I would consider as a last resort.

Thank you.

[NorthernLass]

Can you give some more detail, e.g. what times/dates these flights took off and landed, were you given any notice, did BA give any reason for the delays?

[Lammy52]

Thanks. We were scheduled MIA-LHR on 12 March BA206 depart 18.05. Flight was delayed incoming by 2.5 hours, apparently due to a collision on the boarding arm by a road vehicle at LHR, and took time to restore.
BA checkin agent saw our original flight to MAN BA1386 due to depart 07.55 13 March, and advised we would miss that one, and also that there was no availability on 10.15 departure so booked us onto BA1394 due to depart 12.50.
This flight was subsequently delayed, many cancellations due to windy weather, eventually leaving LHR at 16.30 arriving MAN 17.03.
No notice was given, other than when dropping baggage at MIA.