Taking BA to MCOL

[1005dyer]

In September 2003, I received much good advice, particularly from JDB — thank you.

Since then I finally have got a Court hearing in mid July on my case against BA for breach of contract and not following EU261

BA are doing their best to get me to give up, with extraordinary and complicated arguments, in excess of 200 pages.
The Court will find their case difficult and will have to rely on me to give a much simpler version, not one imagined by BA from their records. BA will not be present to put their case as they have served a Hearsay notice to the Court

My claim is strong I feel as I have all the facts and can draw the Court’s attention to the many errors BA have made.

One thing however I would like to be sure about is the meaning under EU261 orbclauses 8b and 8c Rhys Jones wrote about this on 10/7/2022 saying – one does not need there to be Avios seat availability if you would like to be re-routed.

It seems to me that 8b and 8c are less than clear on Avios eg ‘under comparable transports conditions’ what does that mean?
What if another airline does not recognise my 2/4/1? Are BA obligated to fly us on another airline and will they absorb any extra costs?

I would appreciate any comments to enable me to be sure what I am entitled to from BA to help in my presentation to the Court — thank you

[Richie]

UK261 Article 8 rights are absolute rights, an airline can’t escape them by waffling on about their fare rules and other twaddle.

[masaccio]

https://www.headforpoints.com/2022/07/10/what-rights-do-you-have-if-your-flight-has-been-cancelled/

[JDB]

@1005dyer – I will write a more detailed reply later but in the interim, in response to your specific question about Article 8.1(b) and (c) it’s worth looking at the EC261 Interpretative Guidelines at Para 4.2 which gives more guidance and also the CAA CAP2155 document. It’s written in clear English and it isn’t quite a lengthy as it looks, but do carefully read the sections specifically relevant to your case.

I wouldn’t be at all concerned by BA’s 200 pages, but their overall stance would make me concerned that they might have a case or at least enough to cast doubt. I would certainly be considering making them an offer.

@Richie – the rights in Article 8 aren’t absolute, but are subject to interpretation and standard tests such as reasonableness, in this instance by the court.

[JDB]

@1005dyer – I’m taking it that you are now at the stage of final documents having been exchanged and it’s an in person/video hearing at which BA will not be represented? The 200 page defence is ridiculously disproportionate and almost certainly in breach of the Law Society guidance for dealing with litigants in person and potentially also professional standards, but that unfortunately doesn’t assist you. I’m astonished to see BA file this sort of defence; it’s just not their normal style. It is suggestive of them not having much of a case but hoping that by throwing enough mud, some might stick, but in these instances they normally fold at an earlier stage.

Anyway, the key is to focus almost exclusively on your case and unless BA has made some material misstatement of fact or the law, you really don’t want to be going through their case – that’s the rabbit hole they want you to be lost in.

I have looked back at your original thread that’s from almost two years ago for a journey in Jan 2022 to South Africa. I would really like to help more but I still don’t understand your case, but from the little you have told us, it seems like you effectively settled the case at the time, albeit unwittingly and in the absence of BA advising you of your rights. It’s not entirely clear if the issue was denied boarding, but it sounds as though it might be, so presumably you have claimed under Article 4 which in that instance is the gateway to Articlrs 7, 8 and 9.

I agree that whatever, you must keep your case as simple as possible, two to three pages and I hope you prepared the chronology as advised two years ago; that is key to help the judge understand what happened. I think I would be focussing on saying that, notwithstanding BA’s 200 page defence – the crux of the matter is that BA failed to ticket your reservation (a fact that could only be known to them) and then a) failed to advise you of your rights in writing or at all as required under Article 14 and as a result also b) failed to provide the rights under Articles 4, 7, 8 & 9. You now seek compensation for those failures.

The bottom line is that you had a ‘reservation’ as defined at Article 2 (g) of EC261 which BA did not honour although you complied with all the check in times etc. Any ticketing error lies exclusively with BA. As BA refused to resolve the matter in accordance with the legislation, you found yourself obliged to make alternative arrangements as envisaged by the Civil Aviation Authority in CAPS2155 at 6.5. You will probably need to prove your case in two stages, first the Article 4/Denied Boarding and the second stage – failure to provide 7,8 & 9 should flow more easily from that.

BA purported to settle your case at the time, taking advantage of ongoing failures above but has not covered the costs of £x that you incurred (net of anything you have had back). The 241 argument is a complete red herring – it’s just a form of payment and it doesn’t affect your rights or those of your companion. There’s no point really in raking over what rerouting BA should have offered back in January 2022, the focus should be on the costs you incurred yourself owing to BA’s failure to provide them – those costs have to be “necessary, appropriate and reasonable” and from what you say, the replacement tickets were purchased from them, so hard to dispute.

If you tell us more specifics, I or someone else might be able to help further.

[1005dyer]

It will easier to work my way through your comments to give you more information.

Yes I now have the BA bundle for the Court where I will appear in person on 15th July. BA will rely on their interpretation of their records and will not be attending. The Court advises me that I can comment on their submission at the hearing. I agree that they are throwing everything at me.

I have indeed focused on my case in a concise and dated manner in my Witness Statement, however I feel I have to prove that BA have made many mistakes of fact in order to cast doubt on their case.

One example is as follows—
on 16 December 2021 their record shows ‘cancellation notification email sent successfully for Ba59, 08 jan 22’ Curious to use the word successfully.
In 2023 I asked the BA data centre to send it to me as I did not receive it — they replied saying they could not find it.

In fact the first time I received notice of the flight cancellation was by email on the 28/12/21 — interestingly this does not appear in their records. I wonder why?

BA do record all their various mistakes with classes of ticket and confusion between Capita in CPT and the London office. References to one department not informing the other frequently occur.

So all this means I have to go down the rabbit hole that you mention

My case is that I had one booking reference LHR- CPT -LHR in business with a 2/4/1. Just after Xmas 21 I was told that I did not have an e-ticket and I would have to pay for the flight. BA offered a discount to the price.

At this point they broke their contract with me, but did honour the return flight. I did not know at the time what I was entitled to under EU261 and was not informed, but I am now aware how important this is to my case.

I have all the paperwork confirming what I say and I have a sound case. To reinforce this I feel the need to tell the Court what BA’s obligations are.

[1005dyer]

A further point. BA cancelled the flight to CPT for ‘commercial reasons’. I don’t think this is a valid reason

[JDB]

@1005dyer – I’m afraid it sounds rather muddled. The judge will know absolutely nothing about your case and may not have had time to read the papers and while they are used to getting to grips with the issues you really need to help them. If you have a friend who you can test this out on – 5 minutes setting out the case and then give you frank feedback that would be helpful. Your case, from what one can discern, is slightly more complicated than normal because it’s not just about 261 but can be broken into simple parts each presented with facts, supporting evidence and the law as it should be applied to those facts and then the same again for each part of your claim.

[1005dyer]

Thank you once again for your suggestions — these are exactly what I intend to do.

[Ihar]

I had 60 pages just to fight a parking ticket 😉 As already hinted, you should be very clear what is UK261 and what is contract law. An argument of “not being informed of rights” is quite weak IMHO, as it’s difficult to prove. Focus on the facts, and what is “reasonable” restitution. Any EU rulings on similar EU261 matters will help.

As for MCOL, I’ve filed a few and never got to “court” – always settled. Make sure you do a data SAR (scope as wide as possible). Had one where I got (heavily redacted) emails from their legal team, stating “We’ll lose this one, better to settle”. Strangely enough a few days later they agreed to everything 😁 The “data trail” is your friend!

[1005dyer]

Thank you for reminding me that I must be clear what is UK261 and what is contract law. When I talk to the Court I will break it into simple sections as JDB suggests. The data trail has already been done which shows up the BA errors

[Garethgerry]

Very interesting, please keep us posted.

Unless BA used chatGP to produce 200 pages of waffle, they must of spent infinitely more on lawyers than you were asking for

[JDB]

Garethgerry wrote:

Very interesting, please keep us posted.

Unless BA used chatGP to produce 200 pages of waffle, they must of spent infinitely more on lawyers than you were asking for

While it might cost the man in the street a fair bit to instruct (direct access) counsel, I doubt BA paid more than £500 for this and there is absolutely no correlation between the quantity of verbiage produced and the quality of the content. In fact, had BA instructed a good barrister, the statement would almost certainly have been far shorter, but cost a lot more. While everyone assumes all these lawyers are rolling in it, there are also plenty who get less than minimum wage.

[1005dyer]

I will post the result of the Hearing, which is on the 15th July