Some of the 18 million Britons who are expected to go abroad on holiday this summer will find themselves flying into a legal storm. New compensation rules on delays and cancellations have been established in the past year through case law at the European Court of Justice (ECJ) and this summer’s experience will show how well they will work in practice.
The Civil Aviation Authority (CAA) has already seen “a significant uptick” in the number of requests it gets from passengers to use its free dispute mediation service, says spokesman Nic Stevenson. Numbers of cases going to the CAA have been four times higher since the start of this year – when the effect of the ECJ cases on delays became clear. “We find in the passenger’s favour around 50 per cent of the time,” adds Mr Stevenson. “And, to date, when we have found in a passenger’s favour, airlines have accepted our judgment in pretty much every case.”
Although thousands of people could end up with the compensation – which starts at €250 (about £210) – there are severe restrictions. On the other hand, many airlines will be quite generous on non-compensation issues such as providing refreshments and hotels.
“Most airlines are pretty good and will look after their passengers,” says Daniel Scognamiglio, head of the travel team in Southampton at law firm Blake Lapthorn.
Compensation amounts depend on the length of the delay, the distance being travelled, whether the airline could control the situation and if the flight comes under EU jurisdiction. For instance, following the ECJ cases, three hours is being taken as a trigger for giving compensation in delay cases.
Gillian Edwards of travel association ABTA puts this in context. “Less than 1 per cent of all flights are delayed by three hours or more,” she says. However, this could still mean that well over 200,000 people experience such delays on their outgoing or return flights, assuming that three quarters of holidaymakers travel by plane.
What will whittle down the numbers is the cause of the delay. In ECJ parlance, the delay must be caused by “extraordinary circumstances” for the airline to escape liability. Airlines and tour operators will tend to argue that weather conditions, for instance, are beyond their control and, therefore count as “extraordinary”.
Ms Edwards argues this case – that the “vast majority” of delays of three hours or more are caused by “extraordinary circumstances such as the weather or a technical problem beyond the airline’s control, which means most passengers will not be eligible for compensation for a delay”. On the other hand, it could be argued that airlines and airports can control their response to bad weather by sweeping runways and updating their monitoring and other technology. And if a plane has a mechanical fault, that could be seen as being within the airline’s control.
A landmark case, decided in Stoke-on-Trent county court this year, held that the Thomas Cook airline was responsible for a mechanical fault which delayed take-off by more than three hours. The couple who had taken the case had been delayed in Tenerife for 22 hours and were awarded £680 between them by the judge.
The rules on delays – which also apply to cancellations – set a tariff of compensation amounts based on journey distance. All flights starting or finishing in the EU and EEA (Norway, Iceland and Liechtenstein) should be covered. Short-haul flights (under 932 miles) can result in compensation of €250; medium-haul trips (more than 932 miles in the EU and between 932 and 2,175 miles for flights starting or finishing outside the EU) can result in compensation of €400; and compensation on long-haul (longer trips starting or finishing within the EU) is pegged at €600.
People wanting to make claims need to start with their airline. Details of what is offered and what the procedure is should be available on websites and through staff.
“Most airlines will be able to confirm if there has been a delay,” says Mr Scognamiglio. He recommends that people report the delay immediately to airline staff.
In cases where people are using a tour operator or travel agent they might need to make their claim to them, if their contract is with them, rather than the airline. Should passengers continue to have problems with their airline meeting their obligations, they can contact the CAA. There is rarely a need to contact a lawyer or claims handler to provide assistance following a delay as flyers should be able to handle the complaint themselves.
The rules and treaties covering international travel and compensation are complicated, unclear in parts and do not overlap neatly.
There are, for instance, the Montreal Convention which covers the world, the Package Travel Regulations and passengers with insurance will also usually have some form of cover for delay and cancellation. But Mr Scognamiglio recommends claims under the Denied Boarding Regulation as the easiest route in most circumstances.
“A consumer should consider the Denied Boarding Regulation on delays,” he says. “The Regulation makes it easier to claim against airlines than tour operators...The Package Tour Regulations are particularly used when there is a problem with a hotel.”
Insurance policies are limited by excesses and exclusions. The standard Aviva plan, for example, has an excess of £50 per person on delayed departure and then offers £25 for each period of 12 hours up to a maximum of £250.
When compensation is not available passengers can still find themselves being looked after. The Europa website – the EU’s summary of its own laws – says: “In the event of long delays (two hours or more, depending on the distance of the flight), passengers must in every case be offered free meals and refreshments plus two free telephone calls, telex or fax messages, or e-mails.” And: “if the time of departure is deferred until the next day, passengers must also be offered hotel accommodation and transport between the airport and the place of accommodation.”
ECJ cases also establish that retrospective claims can be made dating back six years. “It had previously been thought that there was a two-year time limit,” says Mr Scognamiglio.
Case studies: Hotel put-ups and meal vouchers
“I was booked with SAS from Birmingham to Copenhagen but was delayed by an hour and missed my connecting flight to Billund. On arrival at Copenhagen I was re-booked on the first flight to Billund the following morning and put up in a hotel by SAS (bed and breakfast) with a voucher for a free meal. The hotel was a few stops on rail link and I was given a ticket for the 10-minute journey. At the hotel I didn’t bother redeeming the voucher as I was no longer hungry. There was no compensation offered but that was maybe because the delay time was less than three hours.”
“Whenever I am delayed travelling to Africa, it is usually overnight rather than just a few hours. They won’t give you a meal, drink or phone call for a three-hour delay... outrageous! One time when I was stuck in Cameroon, I was put up in a hotel and was in the first group out after a couple of hours because I was with somebody with a platinum card. We had to share a room but it was worth it! One airline flying through Ethiopia routinely used to overbook in the summer and you would turn up and get bumped off if you were only going to Ethiopia because they prioritised people going back to Europe – very frustrating.”
“I wasn’t compensated after being forced to sit on the floor for hours at a fogbound Sofia airport. A friend of mine was caught by the UK dust cloud in 2010 after a two-week holiday to Barbados. She was “stranded” for another week with full board and lodgings c/o BA.”
“I got stuck at Malaga airport for more than eight hours after the time of the flight had been changed some time after I’d booked it. Apparently the terms and conditions said I should have checked for possible time changes 48 hours before the flight. They gave us loads of food/drink vouchers but the main annoyance was we couldn’t check in baggage until two hours before the revised flight time, precluding us from jumping on a bus and spending the day in the city.”
Names have been changed