Posts Tagged ‘thomas cook’
By Ian Pollock Business reporter, BBC News – 31 August 2010 Last updated at 21:13
Read the full story as featured on the BBC News website of Thomas Cook trying to worming out of paying passengers compensation under 261/2004
“We waited nearly five hours on the plane after landing, then five hours in a hangar with no food, no water, no heating and people sleeping on the floor” -Andy Lewis
A council employee from Gloucester has become one of the first victims of the recent High Court decision to stay all further claims against airlines who fail to pay flight delay compensation.
The decision was revealed exclusively by the BBC news website in August.
Tim Malpas had been badgering Thomas Cook since December 2008 to gain some compensation for a cumulative delay of 28 hours at the start of a holiday trip with his wife to Las Vegas.
Just as his claim was about to come to court, the rug has been pulled from under his feet.
“Thomas Cook have stalled and refused to pay any compensation that was genuinely owed, in my opinion,” Tim said.
“I’m a bit disappointed, it’s been my life for the past few months.”
Sleeping on floors
More than 300 passengers were on board flight TCX033K. At first, an important technical fault with the plane’s spoiler – the wing flap that acts as an air brake on landing – led to a five-hour delay taking off from Manchester airport.
Then, by the time the plane approached its destination, bad weather meant it had to be diverted to Ontario airport in California, 60 miles from Los Angeles but 300 miles away from Las Vegas.
Among the other passengers was Andy Lewis from Middlesbrough, who was on a week’s holiday with his wife and father-in-law.
Andy is diabetic and could only take one vial of fast-acting insulin on board with him when he boarded in Manchester.
When he landed in California, he was not able to get to his long-acting insulin which was still in the hold and his drug-taking regime was becoming very disrupted, and in very uncomfortable circumstances.
“We waited nearly five hours on the plane after landing, then five hours in a hangar with no food, no water, no heating and people sleeping on the floor – it was freezing,” Andy says.
“It wasn’t until we landed in Las Vegas I got my full insulin supply – about 33 hours after packing it in the case at Manchester.”
Loss of enjoyment
Thomas Cook explained that Ontario airport in California was a mainly cargo airport.
As such, it did not normally use it and the passengers had had to wait for US customs officials to arrive before they could leave the airport.
The travellers were eventually put up in a hotel overnight before flying on to Las Vegas the next day.
Tim argued that the travel firm should pay him for failing, as required, to supply food and drink when his flight landed at Ontario airport.
He also wanted money for the inconvenience of being stuck for four hours in an empty, disused, airport terminal before eventually being taken to a hotel in the early hours of the morning for an emergency overnight stay.
“My first claim to them was for about £500 for me and my wife,” Tim said.
“Initially I asked for loss of enjoyment of three days, damages for no food or water provision, and incidental costs for all the telephone calls I made,” he explained.
Letters and phone calls, including an hour-long telephone conversation with its customer services director, failed to move Thomas Cook.
It said that there was no legal requirement to pay compensation for the delay.
But when the European Court of Justice (ECJ) re-wrote the rules in November last year, and with retrospective effect, Tim seized on it as a new weapon.
In its ruling on the Sturgeon case, the ECJ said passengers who suffered delays of more than three hours should be compensated just as if their flights had been cancelled.
“I read it with interest. I asked for 600 euros and contacted the European court to see if it was retrospective, and it was.”
Andy Lewis had also asked Thomas Cook for 600 euros for each of the three people in his party as well as extra money for neglect of duty of care and the loss of nearly three days’ holiday.
“We believed the length of delay, lack of information and refused medication justified asking for a refund and compensation,” he says.
He, too, got nowhere by writing letters to Thomas Cook, so when the ECJ changed the rules last November, he also launched a county court claim to get some money.
At his first hearing in April this year, Andy lost his case but was given permission to appeal.
That appeal, along with Tim Malpas’s case, are now in limbo and may stay that way for nearly two years.
Thomas Cook declined to discuss their claims in any detail.
But it said it welcomed the recent High Court decision to refer the issue of delay compensation back to the ECJ.
“Whilst we review our position in relation to claims made under last November’s ruling, we continue to support our customers by providing appropriate help and welfare when flights are delayed,” said a spokesman.
The situation has echoes of the recent bank charges saga in which tens of thousands of claims were held up for two and a half years before the Supreme Court decided, last year, that bank overdraft fees could not be challenged legally by the Office of Fair Trading (OFT).
“It’s unfortunate, it could take a couple of years for passengers rights to be clarified,” said Rochelle Turner of Which Holiday?
One man watching all this with great interest is Hendrik Noorderhaven, a former bulldozer salesman.
For the past three years, he has run an online claims management service based in the Netherlands called EU Claim.
It works on a no-win, no-fee basis, to sue airlines for compensation for delays or cancellations, taking 27% of any money recovered.
To take on an airline, he and his small staff gather data round the clock from airline schedules, as well as flight movement and weather reports, supplied by airports, airlines and authorities around Europe.
Armed with this information, which he stores on 42 computer servers, he challenges what he says is the standard excuse of airlines: extraordinary circumstances.
“My experience has been identical with every airline – they say delays are due to extraordinary circumstances so they are not liable, but they never produce the evidence,” Hendrik says.
“They have a general policy of defying passengers and challenging them to sue in the courts.”
Genuine excuses are ash clouds, terrorism, airport closures and airspace closures.
But when it is clear they do not apply, he threatens to sue using the European Small Claims Procedure and generally, he says, the airlines pay up.
“We have had 7,000 successful claims in the past two years, but only 150 involved actually going to court.”
“You have to grab them by the balls, then they pay up.
“They hate my guts – Mr O’Leary of Ryanair calls me a rat,” he laughs.
A key point is that in some EU countries, such as the Netherlands, Spain, and Greece, if claims are rejected by an airline, they can be put to the local civil aviation regulator which, Hendrik says, is usually very effective in producing a payment for the passenger.
What does he think of the High Court stay on legal cases in the UK?
“It is a ridiculous situation, everyone else in Europe can still pursue claims,” he says.
“I believe the ECJ will dismiss it [the airlines' request for a review]. Questions have already been presented by the Dutch courts but the ECJ has said its decision stands.”
Whilst Jack Harding is seen by many to be one of the UK’s top brains on (EC) Regulation 261/2004 and has wrote many articles such as “Access Denied” and “Denied Boarding Compensation – A Turbulent Ride But Here To Stay” both backing up passenger rights and both agreeing that this EC Reg is a valid and viable law working hand in hand with the Montreal Convention it must be seen that Mr. Harding doesn’t actually believe what he writes.
30th April Mr. Harding argued that the regulation has no place to provide remedy within the UK.
Not being able to argue under ‘Extraordinary Circumstances’ for a delay of over 5 hours of a Thomas Cook Airlines flight to Las Vegas on 17th December 2008 from Manchester International Airport (UK) Mr. Harding decided that he would go against his own opinion and argue that (EC) Regulation 261/2004 had in fact no legal standing with in English and Welsh law.
Mr. Harding based his and Thomas Cook’s defence around case law and precedent surrounding nothing to do with (EC) Regulation 261/2004. His defence was based on International law set buy the US and their supreme court (strange to see a so called big shot and a legal bright mind clutching at straws and ordering Judge Arkless of Middlesbrough County Court not to find in favour of the claimants in real terms this was Mr. Harding’s last chance plea for the Judge to rule in favour of a big UK employer and so called leading tour operator………Judge Arkless bought Mr. Harding’s waffle and found in favour of the defendant just under the wrong point of law!
Jack had managed to send one witness to sleep during his TWO and a HALF hour summing up, his entire defence was based upon a hi-jacking situation (nothing to do with 261) an accused terrorist being strip searched (nothing to do with 261) and someone being injured in a hot air balloon incident (nothing to do with 261).
Judge Arkless sided with Thomas Cook even though the Judge did apparently read and understand all evidence produced by the claimants, however realistically one of Four things actually happened:
1. She bottled it and ruled under international law knowing that the claimants would appeal the judgment.
2. She actually believes that International Law over rule’s European or Community law which is in fact the law of England and Wales.
3. She didn’t actually understand the evidence that the claimants handed to her which included clear judgments from the ECJ on how the law should be interpreted.
4. She didn’t actually bother reading the claimants evidence.
The Judge whom ruled under the Montreal Convention made a number of school boy errors, from not fully understanding the law to not allowing the claimants equal amount of time in there summing up and not taking in evidence in given by Thomas Cook’s very own staff who agreed that the part of the aircraft that was the reason for the initial delay was with in the normal working remit of the aircraft that the claimants flew on.
However Judge Arkless did in fact get one thing right which was the right to appeal.
The claimants did in fact appeal the ludicrous judgment of Judge Arkless and are now awaiting a hearing in front of a circuit Judge again to be held at Middlesbrough.
So Jack Harding wrote along side Sarah Parger (another member of 1 chancery lanes hypocrites) on Access Denied (see link) Ms Parger also has lost a 261 case to a Mr. Harbord back in 2006 (see link to article and S.P.)
Jack Harding wrote Denied Boarding Compensation – A Turbulent Ride But Here To Stay again may be Mr. Harding’s motivation was cash or the fact that he believed in what he wrote or maybe Mr. Harding is just another gun for hire?
(See links to JH)
(See links to enied Boarding Denied Boarding Compensation – A Turbulent Ride But Here To Stay)
(See Link to SP)
(See Links to Access Denied)
From The Northern Echo Newspaper
9:10am Monday 15th February 2010
A DIABETIC man is suing a holiday firm, saying he was left stranded for several hours without access to his medication or food and water.
Andrew Lewis, his wife, Karen, and her father, Kevin Heslop, were among 300 travellers left at Ontario airport, in southern California, hundreds of miles from their destination of Las Vegas.
The problems started for the family when their flight from Manchester was delayed for more than five hours in December 2008.
Mr Lewis, of Ingleby Barwick, near Stockton, said: “As I am diabetic, I had to notify the Thomas Cook check-in staff that I was intending to carry onboard my insulin and blood-monitoring equipment. They advised me that I could only carry on one phial of insulin, one box of test strips and one lancet (a retractable needle) and that all other medication would need to go in my case, which would be placed into the hold of the aircraft.”
After a ten-hour flight to Las Vegas, they were due to land at McCarran airport, but were told the runways were closed and the flight was to be transferred to Ontario.
Mr Lewis said: “We were kept on the stationary aircraft at Ontario for over three-and-a-halfhours without food and water.
“When I asked about getting some medication from my case, I was told by cabin crew it was not possible for any passenger to access their cases.”
Once all the passengers were allowed off the plane, they were taken to a holding area while immigration documents were checked.
The holiday party was then left waiting for another two hours. Mr Lewis said Thomas Cook staff did not arrive at the airport to organise accommodation for the passengers.
He said: “Essentially, all the passengers stood in what can only be described as an aircraft hanger, with no access to food, water, heat or clean clothing.”
He said that American Airlines staff came to the rescue and arranged for somewhere for the passengers to stay overnight until a connecting flight to Las Vegas could be arranged.
After fighting for 12 months to win compensation from the tour operator, Mr Lewis launched a legal battle in December saying his family had lost almost three days of their holiday.
The case is due to be heard at Middlesbrough County Court on April 30.
Thomas Cook has declined to comment.