Hi All,
I'm starting the ball rolling with a suggested skeletal form of claim letter for the compensation tariff consequent to cancellation for "technical problems".
Feedback and additions/deletions/elaboration to refine this precedent is awaited
Creating a precedent bank-Claim precedent letter for “technical problem/defect”
There is an old saying that precedents make good servants but bad masters.
Unlike say bank charges “precedent “ letters claims the air passenger rights compensation provide a wide and more diverse range of recovery potential.
The first precedents we are looking at drafting are open for peer review and comment by the forum for amendment and improvement.
Firstly lets look at the initial claim correspondence with the carrier.
This letter assumes the following.
The claim is limited to a claim for the compensation tariff derived from Article 7 of EC 261/2004.
(Further claims relating to re-routing on recovery of assistance costs needs to be added as applicable).
It supposes that the carrier responsible is obvious-the operating carrier.
General points.
Keep the letter relevant and devoid of extraneous comment/information.
The purpose of the correspondence is a demand for compensation.
It is not a complaint levelled against the airline for poor/lack of service. A litany of your suffering should only be included where it is germaine to a claim for compensation.
The aim of the letter should as far as possible be self-contained and not inviting of a further chain of correspondence. The letter should present a carrier with a choice. Either the carrier can comply with the request contained therein for compensation. Alternatively and in default of this action by the carrier you indicate your next step-the initiation of court proceeings.
This is a form of letter for the common situation of where a carrier has indicated that a technical defect with an aircraft has “caused” the cancellation of a flight.
Flightmole.com asserts copyright to this precedent but allows reproduction on condition that reference to made to
www.flightmole.com
This letter supposes that passengers have arrived at an airport and been subject to a flight cancellation with the ostensible reason given by the carrier that a technical defect with the aircraft caused the cancellation
Dear Sir,
Flight number
Date
Booking reference?
This letter advances a claim for compensation pursuant to Article 7 of EC Regulation 261/2004
We were informed that this flight was cancelled 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 (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 fora 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 case (Kramme v.SAS) previously referred to the European Court of Justice and the opinion published in 2007 by Advocate General Sharpston.
Although the Opinion published by Advocate General Sharpstone may not be regarded a “binding” legal precedent we are mindful that the detailed examination of the issues within this Opinion by this distinguished jurist are very persuasive authority for the consideration by relevant judges.
Should you possess a legal opinion from an equally distinguished source as Eleanor Sharpstone Q.C we would be pleased to receive and review this.
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 lead 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 particular of the actions and reasoning which lead our flight to be cancelled 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.
Provide a cheque as follows-(names of the individual passengers).
Alternatively 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 will 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)
Disgruntled passengers
PS. Flightmole send his regards. (optional)
Suggested precedent claim letter-technical defects
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