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Saturday, 1 November 2014

CLAIM £200 to £500 FOR FLIGHT DELAYS

UPDATED 11 October 2016

If you were on a flight that arrived at least three hours late any time in the last six years you may be able to claim compensation of between €250 (£225) and €600 (£540) for each person affected. These amounts are fixed in euros and the fall in the  value of Sterling after the vote to leave the EU means they are worth considerably more than a year ago. These prices are as at 11 October 2016

These rules will continue to apply until the date the UK actually leaves the EU which is not expected until sometime in March 2019. The Government has promised a Bill to re-enact all EU law as UK law but that may or may not include flight compensation rights. We will not see the Bill until May 2017. If this EU Directive and case law ceases to apply in the UK the rules will still apply to flights from the EU to the UK on any airline and to flights from the UK to the EU on an EU based airline. 


The rules now
Two years ago the Supreme Court cleared the way for hundreds of thousands of compensation claims for delayed flights. On Friday 31 October 2014 it refused to hear further appeals by two airlines against earlier judgments saying they had no arguable case or that the law was already settled. 

Some airlines still tried to evade their responsibilities but on 17 September 2015 the European Court of Justice closed a loophole some had been trying to use.

Those judgments mean the law is now clear. 

Technical issues
First, airlines can no longer use technical issues including mechanical failure as an excuse for not paying compensation. The European Regulation EC 261/2004, which makes the compensation rules, gives airlines a get out clause for what are called ‘extraordinary circumstances’. In other words if the delay is absolutely not the airline's fault then compensation is not due. See 'Exceptions' below.

Many airlines have been calling technical issues with their aeroplanes extraordinary circumstances and refusing to pay compensation for the delays they cause.

But in June 2014 in a clear and unanimous judgment the Court of Appeal decided in a case against budget airline Jet2 that technical issues were part and parcel of running an airline and that the delays they caused could in no sense be ‘extraordinary’.

Jet2 tried to get the Supreme Court to look at that decision. But it refused to do so. The judgement releases tens of thousands of claims against many different airlines which have been held pending the court case. And any fresh claims for delay compensation because of technical issues such as mechanical failure should be successful. One law firm estimates more than two million passengers a year are delayed due to technical issues.

Some airlines tried to claim that unexpected or hidden technical defects were extraordinary circumstances. But in its landmark case in September 2015, van der Lans v KLM, the European Court of Justice ruled that such unforeseen defects could only be allowed as exceptional if they were, for example, a defect the manufacturer or a regulatory body discovered and announced. Anything else was just a normal part of running a complex system like an airline.

Back six years
The second important decision by the Court of Appeal was in a case against Thomson Airways. It ruled that cases for compensation for delay could go back six years rather than two. Thomson had been refusing claims which were more than two years old on the grounds that the Montreal Convention only allowed claims for that period. But the Court of Appeal decided unanimously that local law prevails so claims can go back for six years in England and Wales. The six year limit applies in Northern Ireland but it is only five years in Scotland. See section Jurisdiction below.

Thomson also tried to get the Supreme Court to revisit that decision. And again the Court refused saying the airline had no arguable case. So all airlines must now allow compensation claims for delays that occurred up to six years ago.

A further case Goel & Trivedi v Ryanair was tried in Manchester in August 2015. Ryanair claims that a provision in its own terms and conditions limits claims to two years which overrides the EU Directive. Ryanair lost the case but is appealing. It is possible that Ryanair and other airlines may try to delay claims for delays between two and six years ago until this case is finally settled. However, in a statement in September 2015 Ryanair said it did allow claims up to six year, though there is a lot of evidence that it does not.

Application
The EU Directive on compensation applies to flights 
  • which leave UK airports (or any EU airport) with any airline 
  • which arrive at a UK (or an EU) airport on an EU carrier. 
So all flights from UK airports are covered and so are most flights to UK airports. For example, a Qantas flight from Heathrow to Sydney would be covered; a Quantas flight arriving at Heathrow from Australia would not, but a BA flight from Sydney to Heathrow would be covered. 

The delay must be at least three hours and that is measured at the arrival airport. So a flight that leaves more than three hours late but makes up the time and arrives 2h59m late would not be covered. The arrival time was recently defined by the European Court of Justice as the moment when at least one of the aircraft doors is opened at the arrival airport.

The Directive covers cancellation. But the courts have interpreted the law so a delay of at least three hours is considered to be the same as a cancellation and give rights to compensation.

How much
Compensation is on a sliding scale depending on distance and the length of the delay – a qualifying delay on a UK to Alicante flight for example would pay €400 (£360) per passenger. 

Flight distance
Length of delay
        Compensation*
Up to 1500km
3 hours or more
€ 250
£225
more than 1500km up to 3500km
3 hours or more
€ 400
£360
More than 1500km between two EU states
3 hours or more
€ 400
£360
More than 3500km - one airport outside the EU
{3 hours but less than {4 hours
€ 300
£270
{4 hours or more
€ 600
£540

*Compensation is specified in euros. Sterling amount will vary and is as at 11 October 2016.

Remember, these amounts are per paying passenger. So for a family of four they are four times as much. In many cases the compensation is more than the fare for the flight.

Exceptions
Airlines can get out of paying if the delay was due to 'extraordinary circumstances'. There is no definition in the law but that can include industrial action, extreme weather, war, terrorism, sabotage, political or civil unrest, hidden manufacturing defects, and bird strikes. But it can no longer include technical issues such as mechanical defects even if they were unforeseeable.

Jurisdiction
Although the EU directive applies throughout the 28 member states of the EU, the Supreme Court ruling only binds courts in England and Wales. Lawyers say it would be 'persuasive' in Scotland and Northern Ireland. But it would not be binding on a case that was brought, for example, against the Stockholm based airline SAS for a flight from Hamburg to Dubrovnik. 

Enforcing your rights

If you are delayed the airline is obliged to explain your rights at the time of the delay. In the past many have not and on 21 March 2015 the Civil Aviation Authority took action against Are Lingus and Wizz Air to force them to obey this part of the Directive.

The CAA says that these airlines are paying without being difficult: British Airways; easyJet; Emirates; FlyBe, KLM/Air France; Lufthansa; Monarch; Thomas Cook; Thomson Airways; United Airlines; and Virgin.

Write to the airline to make the claim. State that you are claiming for delay under European Regulation EC 261/2004. Don’t worry if you no longer have boarding passes or ticket details. As long as you can work out which flight you were on the airline will have your details on its manifest. If any airline refuses a claim you may have to go to court to enforce your rights. You can do that in a court in the country where (a) the flight landed or (b) the flight started within the EU or (c) the airline is based.

In England and Wales you can use the online service via the Government website.
In Scotland claims have to be made through the Sheriff Court - click here to learn more.
In Northern Ireland use www.nidirect.gov.uk

The court cases to cite are: 
Be determined
Expect some airlines to be difficult and try to put you off or delay matters. If the airline sends you a document headed Draft list of extraordinary circumstances following the National Enforcement Bodies (NEB) meeting on 12 April 2013 write back to say that list has no legal status, has been overtaken in England and Wales by the Appeal Court and Supreme Court rulings, and that you are relying on the law as set out in Regulation EC 261/2004. 

Ryanair has refused to pay claims where the flight originated in Edinburgh as it is outside the jurisdiction of the Supreme Court. RyanAir also resists claims in some other circumstances. On 18 September 2015 the Civil Aviation Authority began enforcement action against Ryanair.

Don't let these attempts to circumvent the court rulings put you off. The more difficulties airlines put in the way the fewer people will have the determination to pursue the case and get compensation. So make sure you pursue your claim and go to court if need be.

If an airline offers to pay the compensation in vouchers instead of money you are entitled to refuse and demand money.

Get help
You can get some advice free from the Civil Aviation Authority at www.caa.co.uk. If an airline has refused your claim the CAA offers an arbitration service. Its decision is not binding on the airline - though they usually follow it - and there have been long delays in the past as the CAA has inadequate staff numbers to handle the volume of cases. 

The CAA has two useful documents on its website. One about technical issues and time limits and the other about information which airlines should provide

And the EU has its own comprehensive guide to compensation and other help you can get for delayed or cancelled flights.

If you feel you need professional help you can use lawyers Bott & Co who specialise in airline cases. It has an online checker to see if you have a claim or not. If it takes a case then it charges 27% of any compensation obtained plus a €25 (£20) administration fee - both including VAT. Altogether that will be about a third of your compensation. There is no charge if you lose.

11 October 2016 vs. 2.7