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Setting out a claim before CEDR due to cancellation (excluding compensation)

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  • StillintheSun

    Setting Out A Claim before CEDR in event of cancellation (excluding compensation claim)

    Many people considering utilising CEDR may never have engaged in such a process before and may be unsure as to how to set out their claim. I have previously provided the document I used in my successful claim arising out of British Airway’s failure to provide me with an alternative flight one year after the flight they cancelled. The link also describes my process through CEDR on my claim. Here is the link:

    https://www.headforpoints.com/forums/topic/victory-over-ba-at-cedr-on-ticket-validity-issue/

    Below is a starting template dealing with an airline’s failure to provide alternative flights and duty of care when say you were left stranded in a foreign county or at a UK airport etc. Use at your own risk. I have never made such a claim and cannot vouch for its accuracy nor that it will be applicable to the exact circumstances of your claim. But hopefully it will give you an idea as to what you need to put together. It does not deal with any compensation that may be applicable where your flight is cancelled within 14 days of departure.
    It is based solely on the Regulations themselves. I have not considered any case law that may be applicable or any guidance (in full) from the EC or national regulator. I am sure others will be able to jump in with helpful points, corrections etc. Please note not all airlines utilise CEDR and other adjudication companies may have different requirements. The template is not designed to advise you as to whether you have a good claim or not, it just provides a basic structure to make you case. It is really just here to get a newbie going!
    Before submitting your claim it would be worth familiarising yourself with the EC Flight Regs which can be found below and provides a pdf of the entire Regs.

    https://www.legislation.gov.uk/eur/2004/261/contents

    There is also the European Commission guidance as the interpretation of the Regs. It has been two decades since I studied European Law and I am thus unsure as to their legal effect. I note on page 2 of the guidance “They do not seek to cover all provisions in an exhaustive manner, nor do they create any new legal provisions. It should also be noted that interpretive guidelines are without prejudice to the interpretation of Union law provided by the Court.” Clearly therefore any decisions of the ECJ and indeed UK courts will take precedence over the guidance. That being said if a passenger or an airline cited helpful (to them) parts of the guidance in their adjudication documents it is likely to be persuasive to the adjudicator.

    https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016XC0615(01)&rid=1

    The Civil Aviation Authority has recently published guidance to airlines as to their duties in event of cancellation and again helpful bits contained therein will be useful to your case. You could set relevant parts out in a separate section before the “remedy sought” section below. I’ve attached a link to the CAA website. However, I thought somewhere that there was useful guidance as to an airline’s duty to place someone on another carrier. I haven’t been able to find that. I’m sure that someone will post the link.

    https://www.caa.co.uk

    Finally, the EC guidance reads as follows:
    “However, where an air carrier can demonstrate that when the passenger has accepted to give his or her personal contact details, it has contacted a passenger and sought to provide the assistance required by Article 8, but the passenger has nonetheless made his or her own assistance or re-routing arrangements, then the air carrier may conclude that it is not responsible for any additional costs the passenger has incurred and may decided not to reimburse them.”

    The safest course and indeed one which may avoid a passenger having to pay anything up front is to contact the airline first and the template assumes that the passenger has done this or at least attempted to. However, note that the obligation to contact is placed on the airline and not the passenger. Therefore, if for any reason the passenger has not contacted the airline and the airline has not contacted the passenger before alternative arrangements have been made unless there exists case law to the contrary it is still at least arguable that the airline is required to reimburse. Frankly, were I stuck at LHR with available hotel rooms disappearing fast I would simply get on and book a room and worry about reimbursement later rather than battle through queues physical or telephonic. I would however be prepared to lose that outlay.
    Procedure before CEDR

    To start your claim you fill out a relatively short form and can then upload prose such as by way of a word document or pdf.
    Unlike a claim before the Courts there was no required style etc. I would suggest producing two documents a numbered pdf “evidence bundle” and a skeleton argument setting out your case and referring to the page numbers in the evidence bundle. A skeleton argument is simply a document with short numbered paragraphs. Each paragraph usually only contains a sentence or two with the intention of making the facts and law accessible for the reader. I suggest dealing with the following issues in the skeleton, all referenced to the evidential bundle.

    ***Start of Template***

    My case and the evidence

    1.Deadlock letter from airline or email/letter of complaint to demonstrate that more than 8 weeks have elapsed since your complaint was made. (Required in order that CEDR will accept your claim)
    2.“I can confirm that I had not issued proceedings before a Court in respect of this complaint.” (It is a condition of CEDR that there are no court proceedings ongoing in respect of the complaint in order to utilise the service.)
    3.Explanation of the tickets purchased and name and age of passengers affected.
    4.Airlines cancellation emails or your explanation as to how airline relayed cancellation.
    5.Details of alternative flights offered (screenshots of airline’s online platform or airline email of any alternative flights offered/denied or written details of any alternative flights offers/ or denied if made orally by phone/check in etc)
    6.Reasons as to why the alternative flights were unsuitable (say for example flight offered is two days away you might have work commitments, medical appointments, child care issues etc).
    7.Details of alternative flights purchased by yourself with invoice.
    8.Screenshots of search for alternative flights on skyscanner to demonstrate that you didn’t just buy the most expensive one unjustifiably.
    9.Details of any accommodation costs incurred with invoices.
    10.Reasons why those costs were incurred (e.g. no flights until next day and so accommodation required).
    11.Details of extra meals paid for with receipts.
    12.Details of additional transport costs with receipts (e.g. return trip to additional night accommodation).
    13.Details of any additional costs that you believe that it is reasonable for the airline to repay to you and why. (Note that Regulations limit that which the airline is required to provide. Do the conditions of contract with the airline provide more? If so refer to the contract here as well).
    14.I can confirm that [the airline did not offer any of the above/ it was not possible to contact the airline either by phone or at the airport because [insert explanation].

    The applicable law

    1.The EC Flight Regs have been incorporated into UK domestic law by virtue of European Withdrawal Act 2018 and The Air Passenger Rights and Air Travel Organisers’ Licencing (Amendment) (EU Exit) Regulations 2019 (APR Regs).
    2.Paragraph 1 of the recital to the EC Flight Regs reads as follows “Action by the Community in the field of air transport should aim, among other things, at ensuring a high degree of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.” Clearly, in interpreting the EC Flight Regs high regard must be had to this purpose.
    3.Article 8 of the EC Flight Regs makes clear that where a cancellation has occurred (as set out by Article 5) “passengers shall be offered the choice between:”
    a. [Reimbursement within seven days…(continues)]; or
    b. “Re-routing under comparable transport conditions, to their final destination at the earliest opportunity”; or
    c. “Re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.”
    4.It is clear that [Airline] must offer all three options in the event of cancellation and that the choice is the passengers’ and not the airline’s. We sought a re-route at the earliest opportunity [for the reasons given above].
    5.[Airline] however was uncontactable / only offered flights on [insert] / did not offer any alternative flights.
    6.It is irrelevant that the [airline] had no flights themselves as there is no such restriction within the Regulations. Where alternative carriers are available the airline is required to ticket the passenger onto another airline.
    7.“Comparable transport conditions” having regard to the aforementioned recital should be interpreted as both the same class of cabin and also a direct flight where one is available on the same airline or otherwise. Our original tickets with [airline] were [insert class] tickets and therefore we purchased [insert class] on [airline].
    8.Where a cancellation has occurred (as per Article 5) it is mandatory for the airline to “offer assistance” as set out by Article 9.
    9.Article 9 reads as follows:
    I. Where reference is made to this Article, passengers shall be offered free of charge:
    a. Meals and refreshments in a reasonable relation to the waiting time;
    b. Hotel accommodation
    II. In addition, passengers shall be offered free of charge two telephone calls, telex or fax messages, or e-mails.
    III. In applying this Article, the operating carrier shall pay particular attention to the needs of person with reduced mobility and any persons accompanying them, as well as the needs of unaccompanied children.”
    10.Article 14 requires the airline to inform passengers of their rights under the regulation [this was not done].
    11.The adjudicators attention is drawn to Article 15 which reads:
    I.Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by derogation or restrictive clause in the contract of carriage.
    II.If, nevertheless, such a derogation or restrictive clause is applied in respect of a passenger, or if a passenger is not correctly informed of his rights and for that reason has accepted compensation which is inferior to that provided for in this Regulation, the passenger shall still be entitled to take the necessary proceedings before the competent courts or bodies in order to obtain additional compensation.
    12.In. short the protections required by the Regulations are minimum protections that [Airline] cannot contract out of, nor are these minimal protections to be interpreted by reference to the airline’s conditions of carriage. However, if the airline’s conditions or carriage offers protection greater than that required by the Regulations the airline must provide that additional protection as a failure to do so would constitute a breach of contract.
    Remedy Sought
    13.[Airline] failed to discharge their duties under the Regulations and/or are in breach of their contract and therefore I seek the costs incurred as a result of their failure namely,
    a) [Cost of Replacement Flights]
    b) [Additional accommodation costs]
    c) [Additional transport costs]
    d) [Additional meal and refreshment costs]
    ***End of template***

    I’m afraid they format has gone bit squiffy following the cut and paste from word but hopefully you get the idea.

    Lady London

    Very nice @Stillinthesun.
    You’ve provided a nice structure to get people started.

    Many thanks for your kindness in doing this and the thought and effort you put into posting.

    GaryE

    Thanks for doing this in such detail – much appreciated

    StillintheSun

    No problem at all. I thought it worth preparing a template in advance should I need it in the future and it makes sense to share it!

    SteveR


    @Stillinthesun
    .

    However, I thought somewhere that there was useful guidance as to an airline’s duty to place someone on another carrier. I haven’t been able to find that. I’m sure that someone will post the link.

    This is the link http://publicapps.caa.co.uk/docs/33/Re-routing%20Guidance%20(CAP2155).pdf

    BA-Flyer

    Does anyone have experience of taking an airline to court after ADR has ruled against you? It’s clear from the adjudicators report that they either didn’t understand my claim, or didn’t bother reading it. E.g. they don’t actually comment on any of the evidence I uploaded.
    Alternatively, has anyone appealed an ADR decision? In this case, it’s Aviation ADR and EasyJet.

    JDB

    Does anyone have experience of taking an airline to court after ADR has ruled against you? It’s clear from the adjudicators report that they either didn’t understand my claim, or didn’t bother reading it. E.g. they don’t actually comment on any of the evidence I uploaded.
    Alternatively, has anyone appealed an ADR decision? In this case, it’s Aviation ADR and EasyJet.

    You should proceed a bit carefully as I think you are starting in the wrong place. The bottom line is that the arbitrator didn’t agree with your position. If they didn’t understand the case, that’s because it wasn’t properly presented; some caseworkers may not be the brightest, but they are not stupid either so they will have understood your arguments. I think you can be fairly certain they will have read your case and any supporting evidence. There is no expectation that an arbitrator should comment on every piece of evidence or argument; was it all relevant? Have you properly analysed the ADR decision?

    You need to decide whether you really do have a case to take to MCOL – a judge will spend far, far less time reading the case than any arbitrator so you need to be able to present it very clearly but briefly and identify the precise legal basis for your claim.

    Unfortunately EasyJet will try to prejudice your case by saying a specialist aviation arbitrator has already decided the case so you shouldn’t be wasting court time rearguing it on the same evidence but that’s not insurmountable. Is there perhaps a reliable/knowledgeable friend who can give you honest feedback?

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