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People sleep on a blanket at Heathrow Airport Terminal 5 after british airways meltdown
Grounded ... after British Airways cancelled all flights from Heathrow. Photograph: Jack Taylor/Getty Images
Grounded ... after British Airways cancelled all flights from Heathrow. Photograph: Jack Taylor/Getty Images

BA chaos: why I’m flying the flag for the new arbitration scheme

This article is more than 6 years old

It could help those passengers whose plans were wrecked by the airline’s recent meltdown, as one barrister has found out

The chaos BA descended into last weekend will come as little surprise to some people who regularly use the airline. My battles with it were described in these pages last July. Within a few weeks of that another failure by BA led me to make a compensation claim which the airline attempted to avoid. Judged by my experience, BA’s position seems to be that it will make payments arising from the computer failure, but only where people assert the claim.

EU rules mean most passengers will receive between €250 and €600 depending on the length of the affected flight. But many will have suffered substantial out-of-pocket losses on top, which is where most disputes may arise.

This is when a recently introduced ombudsman-type scheme – to which BA, along with easyJet, Thomas Cook and Thomson have subscribed – will help passengers who don’t want to take claims to court. Administered by the Centre for Effective Dispute Resolution (CEDR), it is free, although £25 becomes payable if a claim is dismissed. It is paper only, meaning a time-consuming visit to court is avoided and, generously, the airlines have agreed that a passenger whose complaint is dismissed is not precluded from going to court.

Unlike the Financial Ombudsman Service, which allows businesses to send concealed messages to ombudsmen, it applies basic principles of open natural justice. It uses experienced independent lawyers as mediators, who have no connection to the airline industry.

My latest mishap with BA meant that I got to road test the scheme soon after it opened. The airline put back my flight in October from Lima to Gatwick by 24 hours. I got an indirect flight via Madrid, with its sister airline, Iberia, arriving in Heathrow slightly later than planned.

The issues under the EU regulations were complicated and, frankly, neither BA’s lawyers nor I got to grips with them. CEDR’s arbitrator, a distinguished academic lawyer did and, in my view, got it right – something I can, perhaps, say more convincingly as he awarded me only a fraction of what I sought.

The process had its frustrations – the website was cumbersome and required some obviously unnecessary information – but worked better than the county court for most small claims. The decision was made within four months, much quicker than most court decisions.

Airlines often defend compensation claims relying on the “exceptional circumstances” excuse the EU legislation allows. I encountered this from Ryanair in November when a weekend trip to Pisa was delayed both ways partly due to fog at the Italian airport. Fog looks like such a circumstance, and many would have sympathy for an airline facing a large compensation claim because of something it cannot control. However, Ryanair’s argument would have failed for several reasons. Pisa is one of Europe’s foggiest airports and the conditions were simply not “exceptional”. In any event, the early morning fog would not have stopped the Ryanair flight leaving Stansted at 11am and arriving around 2pm in, by then, clear skies.

The fact that the plane, due in from Pisa at 10am, was not at Stansted to take off at 11am, did not prevent Ryanair finding another plane to make the trip. The actual reason was operational convenience in sticking to previously allocated aircraft.

The return flight, when again there was a clear airport but no plane due to earlier fog, was a fiasco of BA type proportions. Ryanair’s website said the flight had been delayed three hours to 9.30pm, but those who arrived for 6.30pm were bussed to Padua, with the Pisa flight then being cancelled.

Ryanair paid up after I sent a couple of strongly argued letters, but I have an uncomfortable feeling that obtaining compensation is the preserve of stroppy lawyers. Its failure to subscribe to the CEDR scheme suggests it will continue to make this as difficult as it can.

Even more striking was a claim Costa Rican friends had against Iberia in September. They were due to fly to Madrid when volcanic ash closed the airport in the capital San Jose. Volcanic ash is one thing everyone agrees is an “exceptional circumstance”.

However, a provincial airport in Liberia, Costa Rica was open and Iberia flights were diverted there. My friends went there only to find that their plane could not take off for two days because Iberia had messed up the paperwork, breaking the causal link between the “exceptional circumstance” and delay.

Initially, I had not wanted to get involved and contacted flight delay compensation service, Bott & Co, often regarded as the leading solicitors at pursuing these claims. I hoped they might be interested in a substantial class action, perhaps in conjunction with Costa Rican or Spanish lawyers. But here they would not help because of the volcanic element, so I wrote to Iberia on my friends’ behalf.

After a half-hearted argument about the ash, Iberia accepted liability. There is probably still a worthwhile claim for an enterprising Spanish-speaking lawyer to pursue for hundreds of other passengers.

No doubt there will be some post-Brexit reconsideration of the rules for UK flights, with perhaps a shift to compensation where airlines are to blame, rather than where the circumstances are “exceptional”. Indeed, if the existing regulations are read literally, BA, although totally to blame, could have a let-out because the level of its incompetence last weekend and the consequences were, truly, exceptional.

Not surprisingly, a BA spokesman assured me the company would not be raising any defence on those lines.

Richard Colbey is a barrister. He does not handle airline compensation cases on a professional basis.

Can you claim extra costs from card providers?

British Airways passengers caught up in last weekend’s chaos, who chose to book alternative flights with another airline, may be able to get their credit card company to foot the extra bill – but it’s not clear cut, according to the experts, writes Miles Brignall.

Those who paid BA directly using their credit card gained extra “Section 75” protection. That means they are able to hold the card provider jointly liable for providing the flight. If you abandoned the BA flight and were forced to buy another costing, say, £300 more from an alternative carrier – and BA refuses to pay the difference – it’s worth bringing a claim against your card provider for your extra costs.

Several banks told Money they would consider claims on a case-by-case basis. In the past, travellers have held the credit card firm liable for flights they have had to buy after a carrier they originally booked with ceased trading.

Customers may also be able to use the Consumer Rights Act to hold the airline responsible for their consequential losses incurred as a result of failing to fly them as contracted. But the consumer group Which? says it is not clear cut and some of the law in this area is untested.

However, Which? reported on 1 October 2106 that air, rail and bus passengers now had extra rights set out in the act – including the right to claim consequential losses where a carrier had not performed its duties with reasonable skill and care. Before October, rail and air passengers were excluded from using the act to bring claims.


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