Tens of thousands of passengers who have suffered flight delays have been denied or are still waiting for compensation worth millions of pounds, with many complaining that airlines are trying to wriggle out of their legal responsibilities.
If you are held up by more than three hours on an EU flight, meaning one that is leaving or flying back to an EU airport, or one operated by an EU-based airline, you are entitled to a refund of as much as €600 ( 436) under European rules. This should be paid where the airline is at fault but does not apply if the delay is a result of certain “extraordinary” circumstances, such as natural disaster, terrorism or poor weather. It is this get-out that the airlines keep trying to exploit to refuse refunds.
Many airlines still argue “extraordinary circumstances” include technical issues or cabin crew illness, despite it being a year since the Court of Appeal ruled, in the case of Huzar v Jet2, that such issues cannot be used as a defence to avoid paying compensation.
Bott & Co Solicitors, which acted for Ronald Huzar, says it has 19,500 clients who should have received compensation after the ruling but are still waiting. This amounts to €8.38 million in unpaid refunds.
The firm says it has seen a variety of “stalling tactics” used by airlines to avoid payment. These include threatening to “counter-sue” passengers who claim more than two years after the delay, arguing that their terms and conditions do not allow this. In fact, passengers can claim up to six years after a delay. Many airlines have been changing the defence of “technical problem” to “hidden manufacturing defect”, because these are considered an extraordinary circumstance by the courts. Others are putting claims on hold because they say they are awaiting the outcomes of other test cases.
Kevin Clarke, flight delay lawyer for Bott & Co, says: “It’s a shame that airlines still push people into issuing court proceedings by ignoring genuine claims or running arguments which the courts have said are not valid.
“The airlines pursued these matters all the way through the legal system because they said that they wanted clarity [on what could be categorised as an extraordinary circumstance]. That clarity was provided by the Court of Appeal and the Supreme Court last year.
“They then spend the next 12 months continuing to fight cases and raise different arguments. It has been ten years of complicated legal argument after complicated legal argument and, despite all of the pro-passenger judgments handed down, we still have to take these claims to court to secure compensation.”
Times Money has been inundated with letters from readers who have been wrongly denied compensation. Richard Tanner and his wife were delayed on their return to Gatwick from Mykonos, Greece, in October 2013 by five and a half hours. Technical problems delayed take-off so the pilot had to fly via Milan to pick up a second crew. When the couple wrote to easyJet asking for compensation the response was: “I’ve looked into the details of your flight delay and discovered that it was due to technical reasons. Such a delay is considered under our carrier’s regulations and European law to be an ‘extraordinary circumstance’, which means it was beyond our reasonable control. For that reason, I’m afraid we are unable to offer you compensation.”
That is not the case, and, when contacted by The Times, an easyJet spokesman said: “EasyJet has investigated this customer’s case and can confirm that, following the change in EU261 ruling, they are entitled to compensation.
“EasyJet [whose CEO, Carolyn McCall is pictured below] takes its responsibilities under EU261 seriously and has been commended by the CAA for its handling of EU261 claims. We will always provide compensation when it is due.”
Angus McInally, of Muir of Ord in Ross-Shire, was delayed for six hours because of a technical fault on a Thomson Airways flight from France to Glasgow. A part had to be replaced on the aircraft. Again, the company initially refused his request for compensation. A spokesman for Thomson Airways told The Times: “We are sorry to hear of the flight delay Mr and Mrs McInally experienced. We have been in contact with the customers and the matter has been resolved. We’d like to reassure customers that Thomson Airways is committed to maintaining an excellent on-time performance.”
Jennifer Nash and Kay Sutton are still waiting for compensation from Iberia for a business class flight from Madrid to Lima in March that was delayed for more than six hours. They say that trying to claim compensation has been a nightmare – they were unable to email the airline directly, and were told to fill in a claim form on the website and provide copies of boarding passes and ticket numbers, but have heard nothing in over a month. “Iberia can clearly check that we were on that flight, they know it was delayed by over six hours”, says Miss Nash. “Why is the compensation not simply sent out as a matter of process the week after the flight? Surely it’s not a matter of debate?”
A spokesman for Iberia says: “According to international regulations, in the case of a flight operated under code-sharing, as was the case, the carrier operating the route is responsible for any complaint passengers might have. Miss Nash should approach LAN [airline] for a refund. I am sorry that the passenger has received different information from different sources.”
The Civil Aviation Authority says it is still seeing a huge number of complaints from people denied rightful compensation; 16,000 were lodged last year.
A spokesman for the CAA says: “Since the law was clarified in June 2014, airlines have all the clarity they need and should be paying passengers the compensation they are entitled to.”
If you believe you are entitled to compensation, you should first lodge a claim with the airline. If it rejects the claim, and if the claim relates to a flight from the UK, you can refer your complaint to the CAA (caa.co.uk), which will approach the airline on your behalf. If this does not yield the desired results, you could seek legal representation from law firms such as Sidley Austin to get the compensation you deserve.
The CAA claims that it has secured more than 8 million in compensation for passengers in two years, but it does not have any legal powers to force an airline to pay out. “We are not an ombudsman but where we see examples of airlines adopting blanket approaches to processing claims that do not comply with consumer law, we can take action.”
When and how to make a claim
Your flight must have been travelling into or out of an EU airport or be operated by an EU-based airline.
The flight must have arrived at its destination three or more hours late. It doesn’t matter if it took off late because flights can make up some of the lost time during the journey.
The delay has to have been caused by the airline.
If your claim meets these criteria, gather evidence that you were on the flight, such as copies of confirmation or tickets, but never send the originals.
Quote EU regulation 261/2004 listing the details of your claim.
If you’re not getting anywhere contact the Civil Aviation Authority.