It is possible that one of our members may be able to assist with regard to EEC regulations. I would however caution you that anything posted here on HT is a personal opinion.

If it is your intention to pursue reimbursement/compensation under the regulation you quote it would be sensible to obtain some expert legal opinion.

Perhaps you should consider contacting Ros Fernihough, a Travel Law Solicitor who has helped many HT members seeking redress.

The direct number to Ros's PA, Pam is 01922 705134
or try the switchboard number 01922 633214 and ask for Travel Dept.

With reference to contact with Thos Cook or any other TO, telephone calls are just a way of wasting money. The person you speak with will have no authority to offer compensation. Decisions to offer compensation are made by people who do not speak with customers.

The best way is in writing sent by recorded delivery. You do need to give then sufficient time to investigate any complaint and reply. The code of practice talks of a period of up to 28 days. You reply and then there is another 28 days etc.

The more effective way is to apply your own code of practice and apply your own time limit. When you reply to the first reply/acknowledgment, state that, unless they address your complaint and reply in a positive manner within say 14 days you will commence legal proceedings. Time limits applied by you must be reasonable. If you go to court then it is important to show that you are the reasonable one and it is them who are lax.

The important thing is that you do what you threaten them with. Failure to do so will be taken as a frivolous complaint on your part.

fwh

This is the case http://www.addleshawgoddard.com/view.asp?content_id=2320&parent_id=2317

It's complicated and I agree with fwh, contact Ros. She will be able to give you the best advice based on more recent stated cases.

The Thomas Cook case is now three years old and much might have happened since then.

Peter

A cancellation is just that - CANCELLED. You would have no way of getting home if it was cancelled. scheduled airlines do this a lot, charter airlines rarely cancel flights, only to extreme circumstances, such as hurricanes, swine flu etc.

Your flight home was delayed by 23.5 hrs as you say, it had the same flight number and it brought you back to and from the agreed booked airports, all be it very late, it was not cancelled, but DELAYED.

good luck

MikeBravo's defence of airline malpractice is the same employed by Thomas Cook in Harbord v Thomas Cook Airlines.

Thomas Cook lost that one, but there may be later stated cases, so a word with Ros could be most worthwhile.

Peter

I'm not sure if the rules have changed within the last 2 or 3 years but this is how it use to be.

If the flight is merely delayed, then as long as the airline has provided you with food and water and accommodation (dependant on time of day and expected length of delay) then they have complied with the rules.
I also believe that after 5hrs of delay from original departure time, if the journey is no longer of use to you then you are able to offload yourself from the flight and make a claim. However, where the ticket does not display the price of the airfare on it (which most charter tickets don't) then the fee payble back to you is set out in a chart. From what i remember, a short haul flight like yours was only worth about £30 regardless of how much you actually paid.

If the flight was cancelled and the airline says "flight cancelled, go home and rebook on the next available" then yes you would be able to claim under the EEC rules.

The rules are still a very grey area for most airlines but for charter airlines, the flights are allways delayed, very rarely cancelled.

but for charter airlines, the flights are allways delayed, very rarely cancelled.

Unless the court decides the circumstances amount to a cancellation, which is what happened in Harbord v Thomas Cook Airlines.

Peter

I think the facts surrounding the Harbord case differed. In the Harbord case Thomas Cook replaced the Stansted flight with one from Manchester. I believe the court saw this as a consolidation of the original Stansted flight with a Manchester flight and determined that the Stansted flight was "cancelled".

In Abe Frohman's case, having read the post, I personally would see this as a flight delay and the airlines obligations under EC 261/2004 have been met as welfare was provided to the passengers. This was not a cancellation.

Abe Frohman may find a letter to the airline might possibly see a small token ex-grata compensation payment - but I don't think anything would be necessarily due under EC 261/2004. Another option would be to check if travel insurance covers the inbound flight - but again only a small amount of payment (£10-£20 pp) is likely.

Ergo, Article 6:

Article 6
Delay
1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:
(a) for two hours or more in the case of flights of 1500 kilometres or less; or
(b) for three hours or more in the case of all intra-Community flights of more than 1500 kilometres and of all other flights between 1500 and 3500 kilometres; or
(c) for four hours or more in the case of all flights not falling under (a) or (b),
passengers shall be offered by the operating air carrier:
(i) the assistance specified in Article 9(1)(a) and 9(2); and
(ii) when the reasonably expected time of departure is at least the day after the time of departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and
(iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a).
2. In any event, the assistance shall be offered within the time limits set out above with respect to each distance bracket.

Article 8
Right to Reimbursement or Re-routing

1. Where reference is made to this Article, passengers shall be offered the choice between:

(a) - reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger's original travel plan, together with, when relevant,
- a return flight to the first point of departure, at the earliest opportunity;

We were NOT offered this choice nor were we offered anything under Section 9, sub-section 2 (below) thus the implication being that Delay does not apply but Cancellation does. I am looking at the possibility of de facto cancellation

Article 9
Right to Care

1. 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 in cases
- where a stay of one or more nights becomes necessary, or
- where a stay additional to that intended by the passenger becomes necessary;
(c) transport between the airport and place of accommodation (hotel or other).
2. In addition, passengers shall be offered free of charge two telephone calls, telex or fax messages, or e-mails.
3. In applying this Article, the operating air carrier shall pay particular attention to the needs of persons with reduced mobility and any persons accompanying them, as well as to the needs of unaccompanied children.

I am not sure what you are actually asking for here. I have already given an opinion that you seek legal advice if your intention is to take action via the court. That still applies. Members of HT are only able to express personal opinions which have no legal standing. Even if a member was able to give an opinion and legally qualified to do so it would have no standing in a court of law.

You have already stated that you were moved to a hotel so they did comply with the regulations. Perhaps 6.5 hours is not sufficient for a child but the aim of the TO/Airline is to get you home not to give you an extended stay in a hotel until you decide you are ready to travel.

TOs/Airlines do not have hotels standing by just in case. When a problem arises they need time to locate accommodation, arrange transfers etc. They do not have aircraft stationed around the world just in case. Technical problems do arise with aircraft just as with any other mode of transport or equipment. Last year my washing machine broke down a few days before a holiday and they could not get parts. These things can and do happen. The only sure thing is someone will be inconvenienced. - My personal opinion is you are not going to get very far with this - certainly not without expert help and we are not the experts.

fwh

fwh,

In response to your opening line "I am not sure what you are actually asking for here", I would refer you to my opening line in my initial post "I am seeking advice from any person that may have successfully claimed under the above EU legislation"

If you do not fall into the category, don't feel compelled to respond.

My response immediately above yours was merely in response the the devils advocate in Traveller.

Hope that helps.

I think that I must be as dense as FWH because I too am not sure what you are looking for either. Is your complaint that you weren't offered the choice between either taking the refund (and having to sort out your own return flight) or being taken to a hotel etc and the TO flying you out as soon as they could? The amount you would be due as a refund would be quite low because the rule of thumb applied from memory in these circumstances is that the flight is assumed to be no more than 40% of the cost of the holiday and hence the refund for return flight on its own would be only 20%. Or that you don't think that they complied with Article 9?

I think it would help people help you if you could be more specific about what you actually want from Thomas Cook - eg how much compensation are you looking for? What do you think they should have done instead of what they did do? But in the end the best advice has already been given - contact Ros who has an excellent record of achieving satisfactory offers for people in dispute with TOs. If she can't get recompense for you then I doubt that anybody else could either.

SM

Basically, I have sought compensation citing Cancellation.

TC have rebuffed the claim citing Delay.

I countered with the fact that I would have been treated differently at the time if Delay was the underlying reason. Although I do readily accept that my achilles heel could be the fact that TC did offer parts of Section 9, these were more out of expectation than knowing the article at the time.

TC seem to adjust their excuse to what suits at the time. In restrospect, it is easy for them to now say it was a delay as they can weasel out of paying compensation under the cancellation section, but if this had been the case at the time, the offers under the appropriate section would have been made clear. As they were not, they have inferred that Delay was not the reason and their resort/airport staff at the time clearly confirmed cancellation - something I now suspect they should not have done and will have been admonished by the powers that be.

My interpretation of the act is that it protects the fare paying customer in these situations and was designed appropriately. I work in financial services and acts imposed upon us are water-tight with no ambiguity arising surrounding query.

fwh mentioned his washing machine and I'm sure if an act was passed to protect the consumer for such an occurence, compensation would be claimed. As an act seems to have passed which fits my circumstances, I merely wondered if someone had endured the rigmarole of citing the act and making a succesful recovery.

I have spoken to Ros who feels that I have a strong case. She would obvioulsy prefer a full roster of all 250 passengers but i suspect that TC will not readily provide this if they were to face 250 x 400 Euro claims!

Her costs however may represent up to 50% of my total claim so am currently considering my options.

I fully understand that my only chance of recourse may be via legal assistance but pondered the possibility of citing cases akin to Harbord -v- Thomas Cook Airlines where the circumstnaces did differ somewhat.

Thank you to those that have offered their opinions.

If your claim centres on whether this was a 'delay' or a 'cancellation' then I would think that much would depend on what the flight numbers were - if you eventually flew back on a flight with a different flight number to the one you were originally booked on then I think that would be regarded as a case of the original flight being cancelled and that you were flown back on a differnt one. However, if the flight number was the same then I think that you have a much harder case to try and make as I think that would be regarded as a delay (albeit a long one) to the original flight. It makes no difference whether it was actually the same plane or not - airlines regualrly substitute planes and it it the number which is key.

SM

Cynically, therefore, there is no time restriction on a "delay" and they could simply chose to retain the same flight number indefinitely to avoid paying (total) compensation of 100,000 Euros to 250 passengers in such circumstances?

If I was Thomas Cook I too would simply allocate the same flight number if it was later construed that such a change decreed whether delay or cancellation applied.

Either the legislation is therefore insufficient or possibly redundant or the companies to whom it should legislate against have already found loopholes to avoid being forced to pay.

If I was Thomas Cook I too would simply allocate the same flight number if it was later construed that such a change decreed whether delay or cancellation applied.

The are others more expert on this forum than myself on this particular matter but I don't think it's the airlines who allocate flight numbers alone but the civil aviation authorities and I've always assumed that this is how they are tracked through the systems and hence they can't just be changed at short notice by the operator but I might be wrong. But to prove that this was a cancellation rather than a delay I think that you would have to prove that in the relevant time period they actually flew one less flight than was in the schedule.

This legislation was introduced to stop the practice that Ryanair, amongst others was notorious for - consolidating two partially full flights into one or simply cancelling an under capacity flight and transferring people to whatever later flights still had seats available. That doesn't seem to be what happened here where it does appear that, for whatever reason, the plane originally allocated to transport you back was not available and as soon as a plane was available they did fly you back using the same flight number because to do otherwise would have meant that there was no flight code available to identify it. If they are actually operating the same total number of flights overall, I would read that as a delay and not a cancellation.

In the end, you have two choices, pay Ros to do a professional job for you or else continue to persevere yourself. Ros will only take a case on if she thinks she has a very good chance of winning it but that doesn't mean that the odds are the same for a lay person pursuing a case on their own. Personally, I would regard coming out of it with 50% of the total compensation paid by the airline to be a better deal than taking the chance on losing 100% on my own but then I'm not a gambler and would, therefore, always take the more cautious 'better safe than sorry' route.

SM

We were due to fly with Thomas Cook to Toronto a couple of years ago and on check in there was a minimum 15 hour delay as the aircraft was still in Toronto with technical problems. We managed to get on standby with another airline and when the seats were confirmed we cancelled the Thomas Cook flight under the EU regulations BUT we were only offered the COST of the sector we cancelled, not the actual seat fare we had paid, which was disappointing.

To take 'advantage' of this, you have to cancel your flight. I am not aware that there is any compensation payable for the delay you encountered, Thomas Cook seem to have provided what they are required to under the EU legislation. They will no doubt point you in the direction of your insurance which will cover you in such instances.

This may be of little help to you Abe but we had a 33 hour "delay" with XL a couple of years ago. Basically we boarded on time >technical problem > off loaded to hotel for night and next day and then original flight 33 hours later . After arriving home we received a letter in the post confirming times of delay etc for us to claim on our travel insurance for which we were paid £400 . In that letter , admittidly XL's words we were advised ,obviously after the event our rights under EU law which was that once we were told of the delay we were entiteled to cancel that leg of the journey ourselves and rebook with another carrier that could get us home and thus would be entitled to compensation . how much I don't know . But now is the best part . As soon as we accepted and took the delayed flight we lost all those rights . Now wouldn't it of been a better idea had XL given us that information at the time and not waited until we had indeed taken that "delayed " flight .

lyn

Maybe I should have pointed out that in our case we weren't told about the Air Passengers Rights either. We knew of them and found a copy posted on a pillar at Birmingham airport. We mentioned these rights to the Thomas Cook staff who tried to say this only applied to scheduled flights until we had to physically take them over to the pillar to show them otherwise

Lyn is correct though, as soon as you accept the delay you lose your rights to compensation.

There have been several court cases-some more readily reported than others regarding EC 261/2004-especially with regard to the Art 5 defence-(the "extraordinary circumstances" defence).

I'm not sure there have been any cases specifically on the narrower "defence v cancellation" point that you raise that have reached hearing in a UK jurisdiction. There are a couple of European cases that have been referred to the European Court of Justice-including the case of Sturgeon v Condor-to which the Advocate General is expected at some point to give an opinion prior to consideration by the Court.

There may have been some individual claims made by passengers in a similar situation as yourself (and faced with a "mere delay" defence) who may have taken claims-including prosecuting them by court action-that have never reached hearing. They may have been compromised prior to hearing or possibly abandoned by the claimants.

I see you have been helpfully referred to a Travel law Solicitor specialist and have received an opinion that you have a "good case" as your refer to it. I notice you are considering your options and I was curious on what basis the Solicitor expressed those good prospects of the merits of your case/the prospects of success with so little available jurisprudence on the subject. Did the Solicitor expert refer you to any particular judgments/prior cases or other jurisprudence-or provide further analysis of her reasoning-that caused her deliver her confidence that you had a "good case". Is a "good case" the same as a case that can be brought to a successful and satisfactory conclusion as far as your are concerned?

Please excuse my nosiness- and please ignore if you wish-but placing myself in your shoes-I think I might also wish to weigh my options carefully in progressing this matter-especially with regard to the form of retainer agreed with instructed lawyers-especially as compared with proceeding with a claim as a litigant in person-more so where the lawyer's retainer might be unclear as to its terms.

Is the Solicitor prepared to pursue in matter on a conditional fee agreement or on a fixed fee retainer? You mentioned that the costs might amount to 50% of the anticipated recovery. Is this a "might" or a ""would"? Would the retainer also include taking court proceedings and if so to what stage-including appeals? Does the retainer encompass the possibility of adverse costs awards -even of expenses- as deliverable to the successful litigant- under the small claims track?

Looking at the matter are you just considering a potential cause of action under EC 261/2004 or also possibly a claim founded under Art 19 of the Montreal Convention? Is the latter cause of action encompassed within the lawyer's retainer? Are any other causes of action-such as those founded in contract distinct from EC 261/2004 also contemplated?

From my own personal standpoint I share the view that you may have a case that at least should be considered and not simply rebuffed by a carrier in a simplistic manner. However I think I would also share your hesitation on how and whether to proceed. If someone providing me with advice could not resolve some of the aspects above I might continue to share your hesitation.