Hi Cityboy and welcome to HT!

It's good to have you onboard as I have followed your posts on MSE.

We also have a Flights forum which might interest you.

luci

Mark

Read the full transcript of the judgement if you are in any doubt. The judgement states precisely the opposite of what you (i think) are trying to say that, unless the airline can prove that the breakdown is of such an extraordinary nature that it doesn't inherently occur in daily aircraft operations, then the airline's defence must fail.

That is the substance of the judgement and it cannot (and is not by lawyers dealing in such matters) be read to the contrary.

Cityboy62, are you saying that evertime a flight is delayed by three hours or more every passenger is entitled to 600 euro,s compensation.If this is so i can see the price of flying going up dramaticly!

Alan

Before any case goes to Court it must be assumed that both parties have been in correspondence and a solution to the dispute could not be found. A Court will take a dim view if a party takes legal civil proceedings if it hasn't given the Defendant an opportunity to resolve the issue.

An airline when submitting its defence can say in only a few words that a plane broke down and that it was a result of unforeseen and exceptional circumstances beyond its control as per previous correspondence with the Claimant. At that point in time it does not have to give any "meaty" stuff.

The "meaty" stuff can be submitted up to two weeks before the date of the hearing. That doesn't leave a lot of time to take it in and refute their stance and argument. The Airline is also not changing the substance of its defence.

And now the crux of the matter: in Court the Airline has fulfilled its obligation. It has given the reason for the breakdown and it has put the case forward that the circumstances in their opinion are unforeseen and exceptional beyond its control. That is what the dispute is about.

It will then be up the claimant to convince the District Judge differently. The Claimant will need to convince the Judge that the breakdown was within the control of the airline.

District Judges don't set precedent so, for example, your case can't be referred to as part of the claim.

There is no guarantee of a postive outcome and I think that should be made very clear to those reading this discussion. At the end of the day, in the event of not winning the case you will lose all monies spent on the case itself and you may be liable for cost incurred by the Defendant (very unlikely but still a possibility).

Having read your case over on flightmole, it should be born into mind that your circumstances are different to a mechanical breakdown (weather related) . Aircraft are subject to maintenance schedules and provided that schedule was completed in a timely manner, any defect in between those schedules grounding a plane can easily be defended by it being contributed as exceptional and out of control as it is not practicably possible to do a full maintenance check after each flight.

Mark

Cityboy62, are you saying that evertime a flight is delayed by three hours or more every passenger is entitled to 600 euro,s compensation.If this is so i can see the price of flying going up dramaticly!

Alan

No I am not saying that since I was referring specifically to the OP's circumstances. The compensation is related to distance travelled and whether 'extraordinary circumstances' exist which allow the airline a legitimate defence to the claim.

<1500kms = 250 euros
>1500kms and <3500kms = 400 euros
>3500kms = 600 euros

And now the crux of the matter: in Court the Airline has fulfilled its obligation. It has given the reason for the breakdown and it has put the case forward that the circumstances in their opinion are unforeseen and exceptional beyond its control. That is what the dispute is about.

It will then be up the claimant to convince the District Judge differently. The Claimant will need to convince the Judge that the breakdown was within the control of the airline.

District Judges don't set precedent so, for example, your case can't be referred to as part of the claim.

Mark

The only 'opinion' in court that matters is that of the judge, and he would be ruling whether the circumstances are 'extraordinary' not 'unforeseen and exceptional beyond its control'. The judge will rule on matters of law and if an airline does not prove clearly that their defence is based on the legal definition of 'extraordinary circumstances' then that defence may well fail.

It is not prevalent on the claimant to prove otherwise but it may be helpful for one's case to guide the judge to relevant precedent cases and the legal tenets found within them as a means to demonstrate that the airline is incorrect in its application of its defence. That is not to say that the claimant has to prove their claim on the balance of probabilities but cast sufficient doubt on the defence.

I agree that courts of first instance do not set precednt but the judgements made therein may be used where circumstances are very similar and are used by both airlines and claimants in support of claims and the defence to those claims.

Having read your case over on flightmole, it should be born into mind that your circumstances are different to a mechanical breakdown (weather related) . Aircraft are subject to maintenance schedules and provided that schedule was completed in a timely manner, any defect in between those schedules grounding a plane can easily be defended by it being contributed as exceptional and out of control as it is not practicably possible to do a full maintenance check after each flight.

I didn't refer you to my case for the circumstances since they are clearly different to the OP's case but to demonstrate the reverse burden of proof point you raised.

As to your last sentence regarding maintenance schedules it is at complete odds with the ECJ ruling in the Wallentin-Hermann case and so I trust you can point me in the direction of the ruling in which this particular piece of advice is found, otherwise I shall conclude that this view has no foundation in law. For information the ECJ ruled thus in Wallentin-Hermann:

3. The fact that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that that carrier has taken ‘all reasonable measures' within the meaning of Article 5(3) of Regulation No 261/2004 and, therefore, to relieve that carrier of its obligation to pay compensation provided for by Articles 5(1)(c) and 7(1) of that regulation.

This is what you said:

Have a look at EC 261/2004 and the Sturgeon v Condor ECJ ruling as you do have a legitimate claim for compensation of 600 euros per passenger since you were delayed by more than 3 hours on your return flight.

Bold my emphasis.

There is no guarantee of winning a court case. Simple as.

The hearing will be pretty simple. The Claimant will start making their case before the defendant has even had an opportunity to say a word. Claimant will say that the circumstances were not beyond the control of the airline and will need to give reasons for that. Airline will state that it was beyond their control, eg part A was replaced by part B 24 hrs before the plane broke down. Part B is supposed to last more than 24 hrs. It could not have known part B breaking down so quick. It supplies the maintenance records.

For all we know this may be the case here. You and I simply don't know and to use the phrase "you do have a legitimate claim" simply because you were delayed for over 3 hours may result in the OP putting papers to court not knowing what he or she is up against and possibly losing all monies invested in the case.

The Judge will listen to BOTH arguments before reaching a decision and that includes the Claimants argument why it is not exceptional circumstances. If one of the two sets of arguments is not compelling enough it may be ruled against.

Simply going to Court and saying to the airline I am right and you're not - you prove your case is not going to work.

Mark

Bold my emphasis.

There is no guarantee of winning a court case. Simple as.

The hearing will be pretty simple. The Claimant will start making their case before the defendant has even had an opportunity to say a word. Claimant will say that the circumstances were not beyond the control of the airline and will need to give reasons for that. Airline will state that it was beyond their control, eg part A was replaced by part B 24 hrs before the plane broke down. Part B is supposed to last more than 24 hrs. It could not have known part B breaking down so quick. It supplies the maintenance records.

For all we know this may be the case here. You and I simply don't know and to use the phrase "you do have a legitimate claim" simply because you were delayed for over 3 hours may result in the OP putting papers to court not knowing what he or she is up against and possibly losing all monies invested in the case.

The Judge will listen to BOTH arguments before reaching a decision and that includes the Claimants argument why it is not exceptional circumstances. If one of the two sets of arguments is not compelling enough it may be ruled against.

Simply going to Court and saying to the airline I am right and you're not - you prove your case is not going to work.

Mark

I agree there is no guarantee of winning a court case but I have not advocated such either. If you look at what I wrote and what you quoted above I said that the OP has a legitimate claim under the law but not that it was guaranteed. Please don't quote me out of context.

This the full sentence you used before referring to the case:

Have a look at EC 261/2004 and the Sturgeon v Condor ECJ ruling as you do have a legitimate claim for compensation of 600 euros per passenger since you were delayed by more than 3 hours on your return flight

What is the point of making a claim if the ultimate aim is not to get 600 euros? Wouldn't that not include going all the way including Court action?

I haven't quoted anything out of context.

Mark

3. The fact that an air carrier has complied with the minimum rules on maintenance of an aircraft cannot in itself suffice to establish that that carrier has taken ‘all reasonable measures' within the meaning of Article 5(3) of Regulation No 261/2004 and, therefore, to relieve that carrier of its obligation to pay compensation provided for by Articles 5(1)(c) and 7(1) of that regulation.

You need to read it properly - bold my emphasis. An airline can't say but I maintained it so that is my excuse end off, but it doesn't stop them using it as part of an argument.

Mark

Mark

Look up the definition of legitimate in a dictionary. Nowhere does it mention that legitimate = cast iron guarantee of success!!

Legitimate in the response I gave means that it follows the substance of the regulation, the circumstances give rise to a potential claim and precedent case law is on the side of the claimant.

Nothing more, nothing less. Don't read anything else into it. My final post on this (sub) issue.

I think all this talk is starting to confuse the situation. Cityboy makes a good case, however its all based on taking a chance. And that's the important point to make. Your first point of call must be to the airline, it is for them to explain why and if you should recieve compo. Then if they say No. That then leaves you with cityboys opition. This is where Mark is spot on, taking people to court can be expensive and does not mean you will win. Do not think for one moment that airlines will have the best lawyers and will also drag this case out. It will cost you money and yes you may win, but you will still be out of pocket( time off,and all the little expenses travel,chasing paperwork and phone calls ect.). And if you do lose, you could way out of pocket. I have had long delays in the past, however mine have also been on the outward part. I have spent a few nights in the Hilton.I think people need to realise that planes do have tech issues from time to time, just like cars.We have to stop looking to blame people and for getting money out of situations.Someones big win is another persons loss.And where do we stop. The cost will always be put back onto the customer eventually. I am flying out next week and my mind set is that I will be delayed and therefore I have low expectation of leaving on time.In all my years of travelling I have never left on time, with my delays being between half an hour to 24 hours. So I always book 2 weeks holiday and allow myself to lose at least a day getting there. That means I do not get stressed and enjoy the wonders of the airport and how people re-act. My point or advice is Always plan for the worst and enjoy the positives. Good luck with what ever you decide to do.

Where in the small claims track do you believe it will be expensive? Costs/expenses are limited to those expressly provided for under part 27 of the Civil Procedure Rules and legal costs (solicitors & barristers fees are not normally recoverable in the small claims track).

I agree that taking a claim to small claims process is no guarantee of winning as I have already stated: your case must be based around a sound claim and better if backed by relevant precedent case law which means a District Judge must pay due regard to such precedent especially if the nature of the OP's claim is of a similar nature. A DJ wuld rule in line with higher court precedent if that were the case.

Cityboy Can you claim your own legal/expert witnesses costs?

Cityboy Can you claim your own legal/expert witnesses costs?

No, the rules regarding solicitors/barristers apply to all parties. Expert witness costs are limited to a maximum of £200 per expert witness. Note that expert witnesses can only be appointed in certain cases. Ordinary witness attendance at court in cases involving 261/2004 would only attract the court attendance fee (£50) plus travel expenses.

Those two court cases referred to set out to establish that a delay is equal to cancellation in the event that a delay is more than 3 hours based on the arrival time. It also sets out what exceptional circumstances are (or are not) and that the airline needs to proof it.

It however doesn't set a precedent as each case will be judged on its merits. Proof of exceptonial circumstances is based on the airline convincing the Judge that what they experienced were exceptional circumstances.

Mark