When does a delay become a cancellation?

[miauk1]

Cancellation or delay? Recent Court ruling on EC 261/2004

Geoff 1248, I'd be very interested to know how you get on with this as the same thing happened to us when our weekend break from EMA - PRG on 24th July 2009 was cancelled due to crew not turning up / crew timing out - both excuses were given. We were offered compensation not to travel as the replacement flight which was proposed for the following day at 2pm from Luton was smaller than the original flight and could not take all the passengers. However, when I contaced EZY on Monday they said the flight was cancelled due to exceptional circumstances (adverse weather) and that no compensation was payable! Today, they are saying that since the flight was actually rescheduled they are not obliged to compensate passengers even though the replacement - sorry - rescheduled flight was with a smaller aircraft.

At least now I know there is no such thing as 'rescheduled'.

However, I found the following information whilst researching my options which you may find useful. It also means that when an airline cancels your flight they have to provide you with the evidence to support their reasons for cancelling under the exceptional cirumstances clause but only if it ends up going to court.

Since this appears to be a common occurrence and airlines are arrogantly using the exceptional circumstances clauise to wriggle out of compensating passengers, I'd be interested to hear from any other passengers on that flight or any other cancelled EZY flight with a view to initiating a class action against EZY.


The Harbord case
In August last year, Mr Harbord, an economist and former Oxford university lecturer, arrived at Stansted airport with his son to board a flight to Vancouver, Canada, with Thomas Cook. On arrival, they were told that the flight had been "delayed" and would fly from Manchester the following day. Thomas Cook even used the same flight number in order to seek to convince passengers that the flight was delayed and, ultimately, to deprive them of their rights under the Regulation. Mr Harbord and his son refused to board the coaches bound for Manchester and booked flights with another airline instead. No compensation was paid to passengers. Mr Harbord took his case to Oxford County Court in February this year, and won.
The court found as follows:
Mr Harbord's flight was cancelled, not delayed. This was because:

• A flight from Manchester to Vancouver is not the same thing as a flight from Stansted to Vancouver.
• A time differential of 24 hours is indicative more of cancellation than delay.
• The fact that the flight had the same flight number had no bearing on the case.

Thomas Cook was unable to rely on Recital 14 to the Regulation, which discusses the circumstances in which the "extraordinary circumstances" defence might be applicable on cancellation. In particular, they were unsuccessful in arguing that the reference to "unexpected flight safety shortcomings" in Recital 14 could apply to a technical defect in one of their fleet, but not the aircraft scheduled to fly from Stansted to Vancouver, and thereby avoid paying compensation to passengers scheduled to fly to Vancouver from Stansted. Airlines often shuffle their aircraft when one breaks down and then cancel the flight that will cause the least disruption to their schedule. It was clear from the court's judgment in Mr Harbord's case that this strategy will not entitle airlines to avoid paying compensation to passengers on flights that did not actually suffer the relevant defect. The Judge noted, further, that the Regulation's purpose is to protect the consumer; therefore the Recitals would be interpreted restrictively, to ensure the stated purpose is given effect.
No light touch for airlines
Mr Harbord's advice to passengers is that it is possible to take on airlines and to win and that no-one should go to the airport without a copy of the Regulation in their back pocket. The judgment will be a rude awakening for airlines, who had hoped that the CAA's "light touch" approach would be mirrored by the courts. It remains to be seen whether the approach taken by the Oxford County Court persists in future as more passengers bring similar claims to Mr Harbord's. It is likely that airlines will increasingly pay passengers a minimum sum by way of settlement, and avoid the adverse publicity of going to court. Yet clarification of the extent to which the courts are prepared to open up claims in the name of passenger protection is needed by the airlines. Only when that clarification is provided will the rights of those passengers, who lack the time and inclination to take the airlines to court, be properly protected.