Quote:
Originally Posted by Cityboy
Orville
The following letter assumes that passengers have arrived at an airport and been subject to a flight delay of at least three hours with the ostensible reason given by the carrier that a technical defect with the aircraft caused the delay.
Please find below the template sent to Diesel Dog:
Your Address
XXXXXXXXX
XXXXXXXXX
XXXXXXXXX
Insert Date XXXXXX
Insert Airline Name and Address below
XXXXX
XXXXX
XXXXX
XXXXX
XXXXX
Dear Sir,
Flight number XXXXX
Date XXXXX
Booking reference XXXXX
Passenger names XXXXX XXXXX XXXXX
This letter advances a claim for compensation pursuant to Article 7 of EC Regulation 261/2004 following the ECJ judgement in November in joined Cases C 402/07 and C 432/07 Sturgeon v Condor and Bock/Lepuschitz v Air France.
We were informed that this flight was delayed and we were not offered re-routing allowing us to arrive at our intended destination within the time frame provided within EC 261/2004.
The compensation due per passenger is Euro 250/400/600 (XXXXX delete as applicable)
We also reserve our legal position in respect of other claims for compensation for delay including in respect of delay under the provisions of the Montreal Convention in the available forum for proceedings.
Should the airline seek to advance any available defence to this claim we request full details.
Please be informed that we reserve our position entirely as to whether an airline is able to advance the defence as indicated within Article 5 in the event that the carrier has not otherwise complied with the provisions of the Regulation and in particular obligations imposed upon the carrier to provide re-routing/refund choices pursuant to Article 8 or obligations to promulgate notice of rights pursuant to Article 14.
Having reserved our position to advance such arguments, and entirely without prejudice to that position, should you maintain a defence under the Regulation of “extraordinary circumstances” we wish to give you an opportunity to prove this defence to us.
We will regard the lack of complete disclosure of your defence at this stage as unreasonable conduct and will invite the court to consider this conduct at any later consideration of costs award in court proceedings that may be necessary to prosecute this claim.
You will be aware of the precise wording of Article 5 of EC 261/2004 due but for completeness reproduce this below.
An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
You will also be aware of the judgement highlighted above (Sturgeon v Condor) previously ruled on by the European Court of Justice in November 2009 and the Wallentin-Hermann v Alitalia judgement from December 2008.
Of course, as a preliminary comment, we would stress the view that the burden is placed upon the operating carrier to prove the defence. Therefore should such a defence be advanced we request to be provided with full details of the “extraordinary” nature of the circumstances that led to any technical problem with the aircraft tasked with this flight. If so, we require to be provided with full details and supporting proof including, but not limited to, aircraft technical documentation.
We also require to be furnished with full particulars of the actions and reasoning which led our flight to be delayed consequent to this technical problem, including why another aircraft could not be substituted to perform the intended flight (whether this aircraft is from your own fleet of aircraft or from another source).
We therefore ask you to respond as follows.
To provide a cheque as follows-(XXXXXX names of the individual passengers).
Alternatively, to provide us with your full response as requested above within 14 days. Please be aware that unless full and complete details are delivered to us of your defence following 14 days from the date of this letter we shall be commencing court action on the basis described above and reserve the right to present this correspondence to the court to assist in its consideration of our request for an award of costs/expenses.
Yours faithfully/Luv and Kisses, (Delete as applicable)
XXXXX Insert name of lead passenger Disgruntled passengers
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I just wished to provide some personal commentary upon this suggested form of letter.
You will notice upthread I mentioned in the introduction to the cancellation suggested letter ( which incidentally readers will notice the express and limited copyright license as delivered).
Firstly, I have been reluctant personally to offer any form of "template" letter for use in delay ( post Sturgeon) claim for similar compensation deliverable by Art 5 and 7 of EC 261/2004.
Why?
Well my internal reasoning went as follows-If a passenger wished to pursue such a claim-that claim would likely be resisted-and resisted with varying degrees of I vigour.
That claim might well require initiation of court process. Those court proceedings had a high likelihood of being contested-again with varying degrees of vigour.
If an ” amateur” litigant wished to engage in this exercise-they are perfectly able to do so. In which case, if that prospective litigant is so well equipped-then that litigant is perfectly able to seize fully what might be the relevant issues-that that passenger is seeking to bring before a court (and may well be required to argue before a court).
If that passenger was so adequately equipped then that passenger is perfectly able to draft a suitable communication identifying their grievances-and presenting an appropriate "letter before action".
The initial letter before action I penned for the cancellation ( tech problem)-was indeed a first draft-and it just goes to show that "law" evolves and litigants need to adapt to those changes.
It also gives a warning that precedents are good servants but bad masters. The same goes for using a "precedent" as a precedent.
I was concerned about this-and for that reason I made the explicit copyright reminder-and at least if the original "precedent" I had delivered into the public domain-was reproduced -at least it had some form of reference back to this forum such that this could be subject to some form of check/correction /contradiction/updating.
Just looking at the delay version now here-again I am concerned that there has been over reliance upon the cancellation precedent.
In the cancellation version I had made a reservation regarding the potential to make alternative damage claims-even claims delivered by Art 19 of the Montreal convention. (This at least left open presentation of those claims-even if they were not being contemplated in an individual case).
One aspect ( in particular) of the suggested version for delay-causes me particular concern. (Other aspects have lesser concern).
This relates to the retention of the reservation of the "Montreal delay" claim.
Why say that unless there was specific need to say this? Indeed on a balance of risk/interest perspective-I would have concern that this might even have the potential to cause prejudice.
Why is that?
Well if a passenger was making a claim derived under Art 19-and felt that cause of action sustainable-in this particular context-a passenger would do just that-advance that claim.
In fact, it is highly likely that an airline-might present a defence based upon the exclusivity of the (Montreal) Convention-and indeed make specific reference to the leading House of Lords authority of Sidhu v British Airways looking at Art 29 of the (now) Montreal convention.
In those circumstances pointing to alternative delay causes of action in any fashion when presenting the Art 5/sturgeon cause of action-at the least- is not really very helpful.
(Indeed that coupled with a reference to re-routing-on what presumably is a delay rather than cancellation claim (unless that was itself subject to contention) doesn’t greatly add to an overall impression that the passenger knows what they are doing).
I don’t wish in any way to stifle open debate-nor indeed initiative or innovation. However these matters need to be looked at empirically-and for that reason the reference/reservation to "other delay compensation"-as found within the prior cancellation "precedent" I think should be removed or substantially altered in any letter advancing a claim for entitlement of Art 5 “delay” compensation-post Sturgeon.
I think overall that passengers generally ( especially those not legally qualified) thinking of litigating a "Sturgeon" delay claim may be better concentrating their initial focus and energies by leveraging their collective interest behind those passengers who are able to call upon legal advice.
The most obvious and economic way to obtain that advice, in my view, is to look at pre-existing legal expenses insurance indemnity.
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