“We need pan-European enforcement of EU Passenger Rights legislation.  Again, there must be a level playing field. No airline company should benefit from a competitive advantage by avoiding its legal obligations. The European Commission will be very active in ensuring common standards of enforcement this area“.  This was the view expressed by the EU Commissioner for Transport, Siim Kallas, on Tuesday 27 April 2010. 

This BBC report refers to the fact that the Commissioner apparently stated that airlines would be placed under ‘maximum pressure’ to pay. 

The past two weeks has revealed the fragile link between the operation of our society and the forces of nature.  We have been witness to some of the many people, of many different nationalities, who were severely affected by the Volcano Travel Crisis.  We reported, via our Twitter base (@HTWFrank), the extent of those experiences and these same experiences were repeated by the many e mails and telephone calls we have received on this issue. 

At the time of this crisis we had travelled to Brussels to attend a major stakeholder conference on Travel Consumer Rights!  Ironic, yes!   

At that conference we heard one delegate describe the ‘heroic’ efforts made by the aviation industry to deal with this crisis.  Judging by the contact we have received, we are not so sure that the ‘heroic’ label would be so easily attached by passengers; we have no doubt that valiant efforts were made by staff, but many passengers felt that they had been ‘abandoned’.  

Whatever the argument of ‘heroism’, we were witness to the ‘heroic’ efforts made by ordinary people, who found solutions to their travel and holiday problems.  For example, many experienced failure of contact by airlines – even to advise that the flight had been cancelled, problems with contact, refusal to provide assistance either through the provision of accommodation, refreshments, contact facilities, re-routing – rights of which they acquired under EU Directive 261/2004, which in turn are incorporated into most airline contracts! 

There is no doubt, that the events of the volcanic eruption, was an Act of God and therefore would be classed as an ‘extraordinary circumstance’, as defined under 261/2004.  This therefore means that where such a circumstance arises, no compensation is payable for a cancelled flight, as stated under the Directive, but a range of other benefits to assistance, refund or rerouting clearly apply. 

The reaction from the aviation industry has been to challenge the authorities for making the decision to create a blanket no fly zone. They argued further that the provisions of 261/2004 are unfair to them and that a ‘force majeure’ provision should be introduced to prevent any and all assistance in the event of ‘force majeure’ arising in the future.  Those who are familiar with the ‘force majeure’ provision will know that it is often activated to cover a multitude of events; we hope that the Commission is not persuaded by this argument of change!  It appears to us, that the current exception of ‘extraordinary circumstances’ is sufficient to prevent payment of compensation for the cancelled flight, it does not need the added ‘bonus’ of a ‘force majeure’ clause, which we suspect would be used to prevent payment of assistance in the event of cancellation and possibly for the cost of the flight itself! 

In fairness to the airlines (yes, we often balance our views within our articles – despite views to the contrary), the airlines may have an argument for assistance or compensation for any additional costs they have incurred.  This would appear to be the view of Commissioner Kallas; however, we wonder whether this event would allow for payment from the EU Solidarity Fund (EU Directive 2012/2002 – Transport/Infrastructure)? 

Whatever the rights or wrongs of this situation, the Consumer should have received the assistance ’guaranteed’ by law and arguments between business and government should remain separate! 

During our own travels, we discovered that many holidaymakers/business people had spent on average £160 each of finding alternative travel arrangements, this did not take into account, food, drink and accommodation! 

Many of the e mails and telephone calls we have received highlight this cost detriment and many complaints of ‘abandonment’!  Consumers contacting us are confused as to their options as to how they can re-claim their monies.  This guide seeks to provide a general overview on those options. 

It may be helpful to direct the reader to the article we wrote at the beginning of the crisis, which highlighted the rights available, if you were one of the many unlucky people who were trapped by the crisis.  This will serve as a useful guide as to what rights should have been afforded to you at the time. 

However, now you are at home, what steps should you consider taking? 

What kind of traveler were you? 

As we see it there are 3 potential type of passengers/holidaymaker: 

1.  A standalone ticketed Airline Passenger;

2.  A Traditional Package Holidaymaker, and

3.  A so-called DIY or Dynamic Package Holidaymaker. 

The first category is easy to identify and define. 

However, the next two are not so easy to determine under current ‘interpretation’ within the Package Travel Regulations in the United Kingdom. 

It is important to understand the issue of whether you are currently classified as a Package Holidaymaker or not. This is important because if you have booked a Package Holiday, then your rights are contained within The Package Travel Regulations. If your travel company states that you have a DIY or component holiday, then it is argued that your only rights are those contained within the contract. Whilst this might technically correct, a recent Court of Appeal decision, along with a Guidance Note produced by the Department for Business Enterprise and Regulatory Reform (now BIS), which has stated, that such a proposition will not be valid, if at the time of the booking, the documentation, sales literature and the perception of the consumer was that their booking was for a Package Holiday. 

Now that you see how this area is currently considered, you may begin to understand the inequality of assistance that was offered to holidaymakers!  I can assure you that this has not escaped the Commission’s attention! 

In the first instance, no matter what category you fall into, you think you need to consider the following points and make a record of your answers: 

Initial Questions: 

1.  At the time of the crisis, what information was supplied to you?

2.  Did anyone represent anything to you with regard to any kind of assistance?

3.  What did assistance, refund or rerouting did you get?

4.  Who made those representations to you?

5.  Did you consider that you were misled?

6.  Did you feel you were being threatened in any way? 

If you have claimed, how have they responded? 

The next point to consider is; have you applied to the airline or tour operator for refunds/compensation, if so, what has been the response?  Have received all that you requested or have you been simply denied? 

What about your evidence? 

The next question to consider is; what evidence do you have? 

I was speaking to a holidaymaker the other day, who advised that she managed to get on a coach from Spain to Calais with other holidaymakers – they paid for the coach themselves and were offered no assistance other than a refund for the cancelled flight.  I asked her if she was going to apply for the extra costs incurred, she said that she couldn’t because she had no receipts!  On questioning further, it was determined that she paid the organiser of the coach money who in turn paid the coach company.  I pointed out to her that she had evidence, the evidence of the organiser and no doubt the receipt he got from the coach company! 

Many of the holidaymakers I met travelled together, exchanged details and could no doubt support each other in any claim for a refund/compensation!  The problem of ‘receipts’ may not be as acute as some would believe! 

Now that you have considered these initial points what are the routes open to you? 

The Insurance Option: 

Many have now discovered that applying to their Insurance Company has been met with the ‘force majeure’ or ‘Act of God’ clause.  In those cases, payment is being refused on the basis that this was an unforeseen event.  In fairness, some Insurance companies have stated that they will make an exception in this case.  Even if you consider that your Insurance Company will refuse your claim, you should apply in any event.  If they refuse, you could use their complaints procedure (usually set out within the Insurance contract) and if you are not able to resolve your complaint, you then have the option to complain to the Financial Services Ombudsman. 

The Debit/Credit Card Option: 

If you paid for your travel with a debit or credit card, and did not receive the service or ‘assistance’ you paid for, you could try to claim through your card provider. 

The rules for recovering your money from a debit card are different to when you pay by credit card. We understand that if you pay by Maestro card, the bank is not obliged to refund you under current UK domestic law or where there a bankruptcy arises. The only exception would be if you ordered goods or services online from a company whose website’s centre of operations lay outside the UK. If you paid by a Visa Debit card, then you will be able to claim your money back through the Visa Debit Chargeback Scheme. You can claim your money back if the goods are damaged or the products or services are not delivered. You must make such a claim with your card issuer within 120 days of you not receiving the goods or where the company has gone into administration. (We would strongly recommend that these issues are checked before taking action. This link directs you to a BBC article on this matter).

If you paid by credit card there is an argument that your credit card company should also assist you to resolve this dispute under Section 75 of the Consumer Credit Act. You should consider contacting them to lodge your complaint. The following link relates to a template letter you could send to your credit card company to activate your complaint with them (this letter is provided by Consumer Direct).

The Unfair Trading Practices Regulations: 

If you consider that the airline or tour operator is engaged in misleading actions, misleading omissions or aggressive commercial practices then it may be that you could benefit from the provisions contained within The Consumer Protection from Unfair Trading Practices 2008. This law, introduced in May 2008, deals with the commercial practices of a trader and creates offences of misleading actions, misleading omissions and aggressive commercial practices. We have written an article on these Regulations with 2 case studies at the end to help you understand how these Regulations could potentially apply in your case and what action you can take to deal with any breaches. If you follow this link you will be directed to the article along with a link to a letter to Trading Standards.

EU Directive 261/2004 (The Flight Rights Directive): 

We have seen that if you are a standalone air passenger or a so-called DIY holidaymaker (this does not preclude ‘traditional’ package holidaymakers – I will deal with that below), you may be able to claim for additional costs from the airline, particularly if they have not complied with the assistance obliged under the 261/2004 Directive. 

Let me remind you of those rights: 

Article 5 gives you a right to compensation if the flight is cancelled, however, because this event was deemed to be an ‘extraordinary circumstance’, it is generally accepted that no right to compensation exists under the Directive. 

Notwithstanding, you were entailed to further rights, those being: 

Article 8 - Reimbursement within 7 days – ‘together with, when relevant, a return flight to the first point of departure, at the earliest opportunity’. 

It further states that you should have received re-routing under ‘comparable transport conditions’ at the earliest opportunity, or at a ‘later date’ at the ‘passengers convenience’. 

This right also applies to Package Holidaymakers except where the right to reimbursement also arises under the package Travel Directive. 

Where an alternative airport is offered, then the airline must pick up the cost of transferring the passenger to the original intended airport or any other airport at another destination. 

Article 9.  You should have received ‘free of charge’ – meals & refreshments reasonable to the waiting period; hotel accommodation for one or more nights; transport to/from that hotel; 2 free telephone calls, telex, fax or e mails.  The needs of any passengers with reduced mobility, those accompanying them or unaccompanied children should have had ‘particular attention’ paid to their needs. 

Article 12 allows you to apply for further compensation against the airline. 

Now that you understand your rights, that is what you should have been given, how you can demonstrate those additional costs, we would suggest that you write to the airline and make your claim. 

Many airlines have placed directions on how to claim on their websites.  Some are web based complaints forms and we recognise that for some Consumers they will not be able to cope with a web based application.  In that case we would suggest that you write to the airlines head office, setting out your claim making sure that you retain the original documentation!  Some holidaymakers have complained to us that they cannot ascertain the details of the airline online.  We would simply suggest that you carry out a Companies House search and send your claim to their Registered Office 

In the event that the airline rejects your claim, we would then suggest that you contact the Air Transport Users Council.  They are empowered to mediate between you and the airline, however, they do not have any enforcement powers and if you find that you are at an impasse, then you should consider further action as detailed below.  They have produced a very helpful information pack. 

EU Directive 1371/2007 (The Rail Rights Directive):

On my own journey to Brussels, our train broke down just as it was leaving the railway station in Paris.  We were delayed for over an hour, but before long, an exact replacement train pulled alongside readied for our journey.  When the train pulled out of Paris, the train’s conductor made his usual announcements, but these were followed by information on how to claim our right to compensation for the delay – announced in 5 different languages!  Imagine that occurring on any British train network – in fact look at the terms and conditions of train companies and see what they say!

We have received complaints from business people and holidaymakers whose train timetables had been altered by the crisis, where they were delayed or suffered train cancellations - (we also received complaints from those who missed connections – this is a separate issue and may well fall into the other options in this article).

EU Directive 1371/2007 provides for extensive rights, very similar to those afforded under the ‘The Flights Rights Directive (261/2004). in the event of delay or cancellation of the train.  For example, if you suffer a delay of between 60 to 119 minutes, then you are entitled to 25% of the cost of your ticket for the journey; if you suffer a delay of 120 minutes or more, then you are entitled to 50% of that journey’s ticket back!  The payment can be made by vouchers, but the Directive states, ‘The compensation shall be paid in money at the request of the passenger’.  We note that some of the UK train operators only talk about vouchers in their ‘rights’ statement – they are being shown to fall short of their obligations by their continental cousins and the law!

The train company can refuse to pay that compensation if it falls below a threshold – that threshold cannot exceed 4 Euros!

Article 18 provides for very similar care and assistance rights to those found in 261/2004, along with rerouting and similar transportation rights!  There are also rights to information and assistance for persons of reduced mobility.

With regard to further cancellation rights, Article 32 states:

“The carrier shall be liable to the passenger for loss or damage resulting from the fact that, by reason of cancellation, the late running of a train or a missed connection, his journey cannot be continued the same day, or that a continuation of the journey the same day could not reasonably be required because of given circumstances.  The damage shall comprise the reasonable costs of accommodation as well as the reasonable costs ocassioned by having to notify persons expecting the passenger”. 

The Directive also sets out the ocassions when this ‘additional’ compensation will not be payable, such as ‘force majeure’, fault of the passenger etc.

Each Member State must enforce the Directive and we note from the UK Regulators statement that implementation must be carried out by 4 December 2009!  they state that:

“Regulation 1371/2007 on rail passengers’ rights and obligations: ensures basic rights for passengers, for example, with regard to insurance, ticketing, and for passengers with reduced mobility”.  As you can see, that is not the whole story!

If you have any difficulty with any train company, we would suggest that you contact the Regulator to seek assistance to enforce your rights under this Directive – it is EU Law!

If you have experienced delay/cancellation whilst travelling on a train within the EU, most non-UK train companies have claim forms based on their respective websites.

Holiday Companies: 

I will deal with the so-called DIY holidaymakers first!  If the argument is correct, and you do not have a package holiday, then it would seem that your rights are against the airline and any travel component provider you may have.  You need to consider the issues I have set out under 261/2004 above and deal with individual claims for hotels, transport etc under the terms and conditions of your contract.  For enforcement of those rights, you should read the sections that follow. 

With regard to ‘traditional’ or accepted Package Holidays, the scenario of those ‘trapped’ by events presented a unique problem! 

It is clear that your rights to assistance were firmly grounded within the Package Travel Regulations. 

Regulation 15 (7) states that where problems arise, which are ‘attributable’ to a ‘third party’ not connected to the package and problems arise that are unforeseeable or unavoidable, the tour operator ‘will give prompt assistance to a Consumer in difficulty’. 

Regulation 15 (8) states that if a Consumer complains about a problem within a contract then the tour operator/representative ‘will make prompt efforts to find appropriate solutions’. 

We have heard that some companies completely cared for their customers, without any demand being made on the Consumer.  In other cases we heard that some holidaymakers were required to ‘pay’ for the additional stay in the hotel complex (one case it was nearly £300 a day; they had to move to another hotel at £50 a day because they ran out of money!).  Other stories referred to holidaymakers being moved to hotels of an inferior standard – one group we were in contact with were mostly affected by illness stemming apparently from the poor conditions found at that hotel! 

The question is this; if I am classed as a package holidaymaker and I have not been cared for can I claim for my additional expenses? 

In the first instance it would appear that you could make a claim though the methods I have described above, including the airline.  The question of a claim against the tour operator may be arguable, and we suggest that you would need to seek legal assistance on this point.  

Notwithstanding, you should consider Regulation 14 of the Package Travel Regulations, it states: 

(1) – The terms set out in paragraphs (2) and (3) below are implied in every contract and apply where after departure, a significant proportion of the services contracted for is not provided or the Organiser becomes aware that he will be unable to procure a significant proportion of the services to be provided; 

(2) – The Organiser will make suitable alternative arrangements, at no extra cost to the Consumer, for the continuation of the Package and will, where appropriate, compensate the Consumer for the difference between the services to be supplied under the contract and those supplied; 

(3) – If it is impossible to make arrangements as described in paragraph (2), or these are not accepted by the Consumer for good reasons, the Organiser will, where appropriate provide the Consumer with equivalent transport back to the place of departure or to another place to which the Consumer has agreed and will, where appropriate, compensate the Consumer. 

This Regulation would suggest that there is a requirement of care (given that the flight was not available – that would be a major component of the holiday contract) and therefore if it were not provided freely, then perhaps the cost of travel and ancillary costs can be claimed? 

We have heard of holidaymakers being charged for their transport back to the UK and in one case being required to sign an indemnity, in other words a document agreeing not to make any further claim and they will get the transport free of charge!  We doubt the enforceability of such documents, signed clearly without access to legal advices! 

Simply, you should make your claim to the tour operator and consider your next steps if they refuse to compensate you and obtain legal assistance. 

Travel Industry Resolution Schemes: 

If your tour company is an ABTA member, then you could write to ABTA to seek their advices or use their Arbitration scheme in the event of impasse!  If you are considering the ABTA Arbitration scheme, please note their 9 month limitation in which to bring a claim – claims outside this timeframe can only be brought with the express permission of the Tour Operator. You should also be aware of the fact that if you disagree with the decision you are bound by Arbitration and cannot progress it elsewhere; you do have a right of appeal (unless there was an issue where it could be alleged that the process was unfair and did not reflect your right to a fair hearing as set out in Article 6 of The Human Rights Act)!  Remember, this is ‘legal’ process and we are certain that travel companies will use solicitors to argue their position – before embarking on this route, we always advise that you should seek legal assistance! 

With regard to the Association of Independent Tour Operators, we would recommend reading their Quality Charter and if you need their assistance to contact them directly. 

Employment Issues: 

Many who have contacted us, tell of how their employers have taken a less than generous or understanding approach to their ‘enforced’ absence!  We understand that companies approach on this issue is tied up with terms of employment either requiring remaining holiday to be used, time to be made up or a loss of wages!  Unfortunately this area is outside our area of expertise, but, we would recommend that you examine carefully your terms of contract, company handbook and if you are unsure about any decision made, you should seek urgent employment law advices.  When accessing those advices, you should consider the issues raised in the next section.

Going to Court: 

Some holidaymakers will perhaps need to consider the Small Claims Court or Money Claims Online.  Again, before you act, we would recommend that you seek legal assistance – do not go into court without such advices!

In addition, given that you may have to consider legal action outside this jurisdiction, I would draw your attention to Rule 78 of the Civil Procedure Rules:

1. Link to the Civil Procedure Rules – EU Small Claims Process;
2. Link to The Civil Procedure Rules – Practice Directions for EU Small Claims Process;
3. Link to EU Directive 861/2007 – The Establishment of the EU Small Claims Process

This Directive has introduced the new European Small Claims procedure, for claims up to a value of 2000 Euros. It effectively means that you can commence an action in this country, through the small claims court, against a potential defendant in another EU country. I would stress that this is a new procedure and as yet we do not know of any holidaymaker who has used this process.  Again, before you act, we would recommend that you seek legal assistance – do not go into court without such advices!

To enter these processes you must be content to deal with the rigours of litigation – we never recommend that you embark of any of these routes unless you have received legal advices.

When seeking legal advices – please make sure that the solicitor you are speaking to has a good working knowledge of travel law and can demonstrate their experience.

You can obtain legal advices through a solicitor known to you, or you can obtain a free list of travel solicitors in your area through The Law Society.

There are low cost legal assistance alternatives supplied by such Organisations as Which? Legal Service.  Alternatively, if you have access to a Legal Expense Insurance policy, then you should contact your provider.  If you are a member of a Trade Union, Professional Body you may benefit from Legal Expense Insurance as part of that membership!  Remember certain types of bank account/credit card also provide Legal Expense Insurance as part of their service – these routes may well help you to offset any legal charges you would ordinarily be responsible for! 

Limitation Periods: 

We would remind you that if you intend to take any form of legal action you must comply with limitation periods. This means that if you fail to bring your claim to court, in whatever jurisdiction, within the limitation period, then you will be stopped by the court from pursuing your claim. Limitation dates are governed by legislation, the jurisdiction, International Conventions, the type of claim, the age of the claimant etc. Your case limitation period must be carefully calculated by a qualified solicitor – we cannot do that for you and you must not guess! The simple rule is; do not let time pass if you wish to pursue your claim, doing so could prejudice your rights – seek legal assistance if your attempts to resolve your claim fail. If you are in any doubt, do not delay, seek legal assistance immediately! 

Conclusion: 

If you have reached the end of this guide, then you have done well!  We do not represent that anything that we have set out will resolve your claim; each case is unique, but these general rules should get you started or at the very least help you to understand the potential options. 

Notwithstanding, I thought that I should share with you an article within the travel press which raises concern about the potential for ‘dubious’ travel claims.  I do not think that this will generally be correct; it is the same old ‘compensation culture’ argument brought out for an airing!  Many of the people I met were ordinary decent individuals who simply wanted to address the imbalance.  I was particularly warmed by the cosy comment: 

“We have already noticed a sharp increase in claims like this, and there are so many consumer champions at the moment, these will definitely continue to rise.”  

All I can add is, ‘Long Live the Consumer Champion’!

Tags: 1371/2007, 261/2004, 861/2007, Flight Cancellation Rules, The Package Travel Regulations

This entry was posted on Friday, April 30th, 2010 at 4:07 pm and is filed under 261/2004 Consumer Flight Rules, Airline Complaints, Holiday Compensation, Political Lobbying, The Crows Nest. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.