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Victory over BA at CEDR on ticket validity issue!

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  • StillintheSun

    Hello! A little something I hope to cheer some up and encourage others!

    In May 2021 I booked two business class flights to Kenya for safari in October 2021 using an Amex 241. BA cancelled these flights in Sept 2021. I requested via twitter flights on almost the exact same dates in October 2022. I deliberately used twitter so I would have a log of the conversation. BA refused citing their conditions of carriage limiting re-booking to one year from the ticket purchase date, in other words no later than May 2022.

    In September 2021 I sent BA a letter of claim to their legal department which they send onto customer relations. Prior to them sending them a deadlock letter I took screenshots from the British Airway’s website demonstrating the cost of flexible (£7,000 a ticket) and non flexible business class return tickets (£2,500) on the dates that I had requested and noting that an avios ticket was akin to a fully flexible fare.

    I then received my deadlock letter from British Airways. I then purchased Qatar tickets at a total cost for two of £4,000 on the dates that I had requested. These could be cancelled for a payment of no more than £300 per ticket. Frankly, BA (I hoped) could pay for me to reach Silver status again and enjoy a better service than BA will ever aspire to provide. Had I been belt and braces I could have screen shot Air France/KLM fare as well for comparison but frankly my cancellable for a £300 fee fare on Qatar at £2,000 per ticket matched up rather well as against the ludicrous £7,000 per ticket BA were seeking!

    I then decided to go to CEDR.

    I have some scaffolders about to turn up this morning but because I think others may appreciate it. I’ll post a little about the CEDR process, my arguments against BA and the arbitrators decision today so those who are interested can take a look.

    Thank you to everyone who had posted helpful comments about the EC Flight Regs. Boy did it feel good to beat British Airways. Best of luck to those also seeking to sock it to BA and although I am not part of the Creation crowd all my best to those aiming to send them packing too!

    PeteM

    That’s good news – well done! It will be interesting to read how this compares to the colleague on here who lost a very similar case!

    points_worrier

    Great news. I have an almost identical story, except I am at the ticket buying stage. I was going to buy BA’s ludicrous ticket cost, but may try another airline now!
    Did you justify QR vs BA based solely on the cost?

    points_worrier

    And being v naughty, is there anything stopping you cancelling QR tickets and pocketing the cash??

    StillintheSun

    @points-worrier I wouldn’t put in a legal document anything that wasn’t true but if your plans have changed post the legal decision then you are doing no more than relying upon your flexible rights as per say the original Avios tickets I should have thought. For those who are part of a regulated profession then upmost probity is always advisable.

    meta

    Well done! Hope you actually received money from BA. There have been reports in the past here people winning at CEDR and BA refusing to pay up until the threat of going to MCOL.

    Rui N.

    It didn’t took that much to me, but after a win at CEDR BA “forgot” to pay, after a few weeks I’ve added a message on the process asking for my money and the next day they paid up.

    StillintheSun

    CEDR v Her Majesty’s Court Service with a Money Claim Online (MCOL)

    I had personally used neither service before as a litigant, although I am very familiar with the English Court system which is woefully underfunded, short staffed and some of it pretty dilapidated. Read his books or follow The Secret Barrister if you want an idea about our criminal courts. Do not find yourself before them. Even if you are innocent and win, legal aid (unless you are breadline) is most unlikely to cover you fees which could be tens of thousands of pounds in a serious matter (rape, serious assault) etc. Anyway enough politics.

    Currently, civil small claims are taking roughly a year to get to a final hearing. Although the Court fees are fixed and it is rare for a litigant to be ordered to pay the other sides cost’s when they lose a small claim. The costs of taking my claim to a final hearing and losing would have totalled about £500. If I had won then British Airways would in all but relatively rare circumstances be ordered to pay me the £500 on top of my damages (compensation). Using the Courts would require various time consuming, formal documents to be produced. It is not uncommon for Courts to misplace them. If BA did not settle I would have to take a day to attend Court. However, I would get a judge to hear my case and the decision would be binding on both BA and myself unless the loser decided to appeal. Unlikely but not impossible.

    I had a look at the CEDR website. I was very impressed with the manner in which it presented the service online and the clarity of the information provided. Even with Covid the time to a decision seemed likely to be shorter than using the Court system.

    Given that (i) BA’s deadlock letter specifically noted the availability of using CEDR if I was still unhappy (and stated the decision to be binding) and (ii) the online rules made it clear that the arbitrator’s decision was binding on BA only if I accepted it and (iii) arbitration was entered into after I had sent a formal letter of claim I thought that enforcing an arbitration decision in a Court, if say BA did not pay up, had decent prospects.

    Moreover, the fact that it was not binding on me unless I accepted the decision meant that I could have two bites of the cherry, once at CEDR and once at Court if necessary. I would also get to see BA’s arguments at CEDR and amend my case, if necessary for Court. Finally, CEDR would cost me just £25 if I totally lost.

    CEDR drawbacks were (i) quality of the arbitrators was unknown and (ii) the rules made clear that the award of interest was unlikely (I forget the exact phrase used). From the commentators on here interest running at 8% from the date I purchased the Qatar tickets could possibly be recovered by the Court process, which is an excellent rate of return.

    StillintheSun

    Setting Out My Claim 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. I started my claim before CEDR in January and have had a result now (beginning of April) and so I am very happy with the speed by which a final decision has been obtained

    Unlike a claim before the Courts there was no required style etc. I produced two documents a numbered pdf “evidence bundle” and a skeleton argument setting out my case and referring to the 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.

    Again many may find all this explanation dull and unnecessary but someone may find it helpful if they are contemplating using CEDR. I am not saying its perfect and/or is completely correct. Simply this is what I did and obviously everyone will need to do their own relevant to their own case.

    I dealt with the following issues in my skeleton, all referenced to the evidential bundle.
    1. Explanation of the tickets purchased.
    2. Explanation of the flexibility of avios tickets.
    3. BA’s cancellation emails.
    4. Twitter screenshots demonstrating my request for alternative flights and their refusal.
    5. My formal letter of claim
    6. My email to BA noting the availability of requested flights on their website with reference to screenshots of the same in the evidential bundle.
    7. Deadlock letter (necessary for CEDR to accept claim or proof of several weeks since your direct complaint to BA).
    8. Confirmation that no formal legal proceedings had been started at Court (A requirement of the CEDR scheme I think).
    9. Purchase of alternative Qatar tickets with evidence of the cancellation terms.

    10. Finally, the legal bit which I’ll set out in full in another message to those that are still reading and I have not sent to sleep!

    StillintheSun

    My argument is set out in full below. Again use at your own risk. Please improve and/or correct any errors.

    1. The EC Flight Regs [Pages ] 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. 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.”

    3. 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.

    4. It is clear that British Airways therefore 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.

    5. Comparable transport conditions should be interpreted as the same class of cabin. Our original tickets with British Airways were business class tickets and therefore our re-route cabin should also be a business class cabin.

    6. Business class tickets on British Airways on our requested dates were available for purchase on the BA website prior to British Airways sending out their deadlock letter.

    7. Article 8 expressly states that the re-route is at the passenger’s convenience. British Airways willingness to only provide an alternative flight within a year of the ticketing date (i.e. up to a year from 29 May 2021) is not in compliance with the EC Flight Regs because:
    a. The Regulations themselves contain no such limitation.
    b. Would run contrary to the aim of providing a high degree of protection for passengers.

    8. At the time of the deadlock letter, if British Airways argument had been accepted we would only have had a seven month period to take our re-route. However, we had chosen October 2022 dates for travel because:
    a. The new 2022 dates were very close to the original 2021 dates, simply a year on;
    b. We are planning to go on safari and these dates are well into the dry season which is an ideal time to visit Kenya for safari.
    c. We need to book a substantial time away from work for which significant notice is required to prevent work conflicts.
    d. We are travelling within Kenya as a group, all of whom need to book time off work. Therefore, the shorter the timeframe between the re-booking and the re-route date the more difficult for all of us to be able to take holiday at the same time.

    9. The unlawfulness of British Airways’ position can be demonstrated when the following scenarios below are considered:
    a. If British Airways cancelled passenger’s flight 11 months after they had bought their ticket, that passenger would only have a one-month period in which to re-route if British Airways “ticket validity” argument were accepted.
    b. Certain trips, such as wildlife safaris, are season dependent. British Airways’ position would prevent a re-route which would allow the passenger to travel on a date for the very purpose that the trip was intended for.
    c. Passengers often travel for yearly anniversaries such as a birthday or wedding anniversary. British Airways’ position would prevent travel for the very celebration that the travel was purchased for.
    d. Passengers are often restricted to taking trips during school holidays; for example a ski trip during the February half term. British Airways’ position would prevent the family taking flights at a time when they were able to take the trip.

    10. Whilst we can accept that there should be some limit on the passenger’s convenience, for example a re-route five years after the cancellation may well be excessive. However, we were seeking a re-route within a year of our original flight dates and approximately one year and a month after British Airways cancelled our original flights. It is submitted that our position is entirely reasonable and therefore British Airways were in breach of their statutory duty imposed by the EC Flight Regs (as incorporated into UK law) when they refused to re-route us on the dates requested.

    Remedy Sought

    11. In the face of British Airways’ refusal to re-route to our required dates we have booked alternative flexible business class flights at a substantially cheaper price than was available on British Airways. We seek this cost to be paid by British Airways given their breach of statutory duty which has arisen due to their refusal to perform their re-routing duty under the EC Flight Regs (as incorporated into UK law).

    StillintheSun

    BA’s Defence and my response

    BA put in a defence which essentially stated that we should be bound by their conditions of carriage and that we did not have an unlimited right to book flights whenever we wished (something we had never sought).

    At this point I had a stroke of luck thanks to headforpoints and specifically Meta who reminded me of Article 15 of EC Flight Regs. A good lesson in always go back to the original law before finalising your argument!

    Again use at your own risk. Please adapt and/or correct and/or make better!

    Were this a claim in contract British Airways conditions of carriage would be relevant. However, this is not a contractual claim but a claim for breach of statutory duty under the EC Flight Regs.

    British Airways’ assertion that its duties under the EC Flight Regs should be interpreted by reference to their conditions of carriage must fail by virtue of Article 15 of the said Regulations.

    Article 15(1) 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.”

    Ladyshopper

    First of all, well done!

    And secondly, this is one of the most helpful set of posts I’ve ever seen, so thank you. I’m sure there will be a lot of people on here who hugely appreciate the step by step guide.

    I nearly had to do this last year (but at the last minute was able to get my flights changed back in July when BA decided they were going to let people do that, then they back tracked on the new policy for reasons unknown a short while later). I had a very kind poster from here email me what he had sent to CEDR for a similar case, and that really helped. I was very glad that I didn’t have to go through with the claim in the end, but having something like this would definitely help me in future if I ever needed to do one.

    StillintheSun

    @points_worrier
    I explained the purchase of Qatar tickets both in my letter of claim to BA and to CEDR on the basis that the Qatar tickets were substantially cheaper than the BA tickets although they were not direct and the cancellation fee was greater. In other words I was being more than reasonable. The fact that the Qatar service, food and wine is a vast improvement and that BA would effectively be paying us to retain our Silver status was of course irrelevant.

    JDB

    Well done! Very pleased for your win. Your succinct argument is testament to “less is more” – by keeping it very concise (843 words!), factual and unemotional the reader (CEDR or judge) can immediately see the issue and is much more likely to be on your side for not having a lot of waffle. A good set of supporting docs as you list is also helpful. While they say 80% of cases win or lose themselves, presentation (ie helping the decision maker) does matter.

    Some have been patting themselves on the back for 2500+ word submissions to various arbitrators but these will inevitably be prolix and repetitive and the decision maker has lost interest half way through.

    These cases are also very fact specific, so it is a superb template but doesn’t guarantee success for everyone.

    Yours is the most helpful post yet on this subject (including the thanks to others who assisted you initially).

    • This reply was modified 53 years, 1 month ago by .
    StillintheSun

    @Ladyshopper
    Your comment is very kind. So many people on here (@LadyLondon comes immediately to mind) have spent so much more time than I have answering people’s questions that I thought I would return the favour. I hope the above helps. The law can be a little obscure!

    The truth is at the start of COVID I had a feeling that BA wouldn’t play ball with a future flight and so I made sure to gather the evidence as I went along. Luckily enough I have found being a litigant for the first time interesting and pleased to have got a decision in my favour. I’ll confirm on a daily chat thread that BA have paid up.

    Frankly, I suspect previously that when BA have not paid up it is likely to be inadvertence rather than malfeasance but I shall see. Hopefully, they will not force me to pursue them through the courts after all 🙂

    StillintheSun

    @JDB
    Thanks, I have been interested in reading your counterpoints on the various arguments floating around on various issues. I always say ask three good lawyers the same question and you will get three different answers but at least you know what the arguments are.

    ed_fly

    Well done on the result and also thanks for providing such a great template as per @jdb it’s succinct and addresses ba’s counter arguments.

    Harry T

    Great result. Thank you for laying out your arguments and the whole detailed process. I think you were asking BA for something totally reasonable and they clearly underestimated your gumption and resolve.

    strickers

    Excellent result and thanks for sharing so much detail.

    Lady London

    It didn’t took that much to me, but after a win at CEDR BA “forgot” to pay, after a few weeks I’ve added a message on the process asking for my money and the next day they paid up.

    I hope you had included 8% statutory interest till paid, in your claim?

    Ladyshopper

    @Ladyshopper
    Your comment is very kind. So many people on here (@LadyLondon comes immediately to mind) have spent so much more time than I have answering people’s questions that I thought I would return the favour. I hope the above helps. The law can be a little obscure!

    The truth is at the start of COVID I had a feeling that BA wouldn’t play ball with a future flight and so I made sure to gather the evidence as I went along. Luckily enough I have found being a litigant for the first time interesting and pleased to have got a decision in my favour. I’ll confirm on a daily chat thread that BA have paid up.

    Frankly, I suspect previously that when BA have not paid up it is likely to be inadvertence rather than malfeasance but I shall see. Hopefully, they will not force me to pursue them through the courts after all 🙂

    There are lots of helpful people on here, I agree. When I was looking at putting in a claim I spent ages going through previous chat threads (this was before the forum) copying and pasting things onto a word document to help me.

    However, having a template like this is brilliant. Not everyone is confident at things like this, me included, so it is a really useful resource to have.

    Rui N.

    It didn’t took that much to me, but after a win at CEDR BA “forgot” to pay, after a few weeks I’ve added a message on the process asking for my money and the next day they paid up.

    I hope you had included 8% statutory interest till paid, in your claim?

    Of course not. That’s not a thing on CEDR.

    zio

    Echoing others…
    Firstly, congratulations. Secondly, many thanks for providing such help, and encouragement, to others who find themselves in a similar position.

    meta

    Btw, I just re-read the second part of Article 15.

    2. If, nevertheless, such a derogation or restrictive clause is applied in respect of a passenger, or if the 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.

    This essentially gives you the right to start proceedings even after you have received a refund/voucher if the airline informed you. So anyone who feels they’ve been short-changed by BA has 6 years to claim.

    zio

    You have to hand it to those who drafted this legislation. It’s almost like they saw BA coming, isn’t it?

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