EU261, “extraordinary circumstances”, and new planesBack to Forum
The final sentence of my last salvo states that I would, of course, commence any proceedings in Hong Kong, where my daughter is a permanent resident and where the ticket was purchased. HK has a Small Claims Tribunal, where legal expenses cannot be claimed from the losing party (so even if they won, they would probably be out of pocket). Since I would represent myself (as the parent of my daughter, if you see what I mean), no cost to me apart from a couple of hours away from the office – easily made up given the hours I normally work!
I only sent that last week, so early days yet.
If I do achieve a satisfactory settlement, I won’t state details on here since I am sure the airline concerned (you will note that I am still not confirming which one!) won’t want a published precedent – but I will definitely tell you all if the issue has been satisfactorily resolved.31 May 2016
Apologies if this has already been highlighted:
Article 9.2 of Finnair’s Conditions of Carriage makes specific reference to EC Reg 261/2004 which deals with compensation for delay / cancellation / denied boarding.
Whilst there is no jurisdiction clause, for the reason you have already set out, Hong Kong would be a acceptable forum – no problems there.
The ‘Extraordinary Circumstances’ defence was dealt a blow in the Huzar v Jet2 case in 2014 where the Court of Appeal held that a 27 hour delay caused by a wiring defect in the fuel valve circuit that subsequently needed replacing – was not an extraordinary circumstance. The Supreme Court refused to grant to the airlines permission to appeal the decision on the basis that there was no error of law and no matters of public importance (as distinct to commercial importance for the airlines) arose.
The airlines are understandably not impressed as it in effect provides them with strict liability for delays caused by technical issues they arguably can’t always control. Hidden manufacturers defects arguably comes under the Huzar umbrella although I can see why airlines would want to claim that hidden defects on ‘new’ aircraft types would be distinct.
In the end, such defects could / should be dealt with on an airline / manufacturer level and compensation to passengers affected not withheld. It seems the Court also shared this view.
So, in any correspondence, make mention of the Huzar v Jet2 case and it’s likely to assist the progress of your claim.
Hope this helps.31 May 2016
There is another relevant ruling after Huzar
This limits the airlines defence to cases where the aircraft type has been grounded by the CAA (or equivalent) or hidden manufacturing defects.
Finnair appears to be trying to assert the latter, claiming that it was a new aircraft type and it must have been a hidden defect.
TBH, I think that is ********, unless they can provide a letter from the component manufacturer confirming a hidden manufacturing defect.31 May 2016
FDOS_UK – 31/05/2016 09:13 BST
Thanks for the update! I just read the link. As an armchair observer these days, I’d forgotten about this development (embarrassing).
I agree that for an airline to prove that the defect is so hidden that it could not reasonably be found in the ordinary course of maintenance – would be difficult.
Within an EU context, the case seems to limit the application of Huzar on that specific issue – although Huzar case is still good law in the UK.31 May 2016
I recently used a “no-win, no-fee company” here in the UK to claim against a UK based airline that cancelled my flight after a rolling 5 hour delay. The airline were particularly difficult to deal with in person and tried not to admit liability or pay out. I got so fed up and resorted to a company recommended by a colleague. The airline paid up immediately, 2 lots of EUR250, although about 1/3rd went in fees. I think it was worth it though, if you have no luck claiming yourself and it’s possible for you to use these UK firms from Hong Kong, I’d give it serious thought.31 May 2016
As an aside, I wonder what the impact of “Brexit” ,should it happen, would have on EU261 with regards to flights arriving and departing the UK. Would the UK government subsequently introduce a similar “UK261” ruling?31 May 2016
Just got feedback from the airline on my case based on some of your recommendations in this thread – thanks for that!
I asked if it was possible to start the engine e.g with a ground unit and also asked for documentation that this is infact a manufactorer defect i.e. via confirmation from the part manufactorer.
Unfortutunately, the airline “just got the final instructions and cannot send more detailed internal technical, maintenance or repair information.”.
They have now offerede 125 EUR per passengers instead of just vouchers.
Considering asking for external helt via a “no-win, no-fee company”. Any suggestions / help / input would be much appreciated. THANKS1 Jul 2016
svn2301…..before you approach a “no fee” agency, have a look at the UK CAA website for EU261 claims. They supply information and claim forms for no charge. They do the claim for you. The airlines don’t like being monitored by the CAA!! Worth a try.1 Jul 2016