Is there a source reference to the Harbord v Thomas Cook decision being appealed in the public domain, I was wondering where this view came from-and wouldnt the first appeal now have been determined?
I was reading of others who were on this flight contemplating court action against EZ
See
Easyjet 6505 Cancellation 24 July East Mids - Prague - Flight Mole Forum
Presumably the carrier is at liberty to argue that the flight was merely delayed rather than cancelled. Whether they would be successful in that argument would depend upon the facts of the case. (The Opinion from Advocate General Sharpstone published early last month for the ECJ in the conjoined referred cases of Sturgeon v Condor and Bock v Air France might also be worthy of reference).
At the least-given the fact that the flight eventually departed from another airport- this would provide appear to me to be a valid argument to present before a court that the flight, as originally planned, had been cancelled-(with reference to the definition of cancellation as found within EC 261/2004).
Although providing no formal binding precedent presumably the burden would be placed upon EZ to pursuade another District Judge why a view contrary to that taken by the judge at Oxford County Court should not be repeated.
If this were a cancellation then the burden of proof to prove the Art 5 defence of extraordinary circumstances rests with the carrier. (This doesnt rest with the passenger).
The concept of "extraordinary circumstances" is not defined within EC 261/2004 but reference to the full dicta of the Wallenstin Hermann case should be made rather than a selected extract. The sickness of a crew member or the fact that crew are capable of execcedding permitted duty hours appear to be circumstances that are ordainarily faced by a carrier in their usual business as an air carrier-whether they are outside the control of the carrier would therefore be a redundant argument.
Leaving aside opinions apparently expressed by the German court mentioned-the ECJ did of course uphold the validity of the Regulation in face of considerable challenge by the airline industry in the IATA case in 2006.
It seems to me that there is a need to distinguish in internet land-as opposed to legal -land- two concepts.
What a legal opinion is and what an opinion on a law is (whether it is "badly drafted"-full of loopholes or whatever).
Often because an observer is not able to give a comprehensive and adequate legal opinion ( as would be provided by a competent lawyer) the observer then splices/ conjoins commentary with "opinion" on the nature of.the law (such as whether the law is "good" or "bad" ).
A District Judge considering a case doesnt exert him/herself with such tangential diversions-the judge would only consider the law and the facts.
Similarly commentary is often made on whether a passenger should pusue their rights in law. Again this is not a matter that would concern a judge-rights are simply there to be exercised if chosen to.
Rights in law can be exercised by those those are happy to exercise them. If someone believes that the law is "onerous" on a carrier then that person simply need not exercise them. ( I suppose that person can exercise a hard won liberty of free speech to tell someone else not to exercise their rights-but then again that person might take a different view if their had suffered a delay/cancellation and might be less magnanimous if they had).
An alternative viewpoint could be expressed-why doesnt the carrier comply with the law? If compliance with the law results in a commercial cost then factor that cost into the ticket pricing (if it has not been done already).
What is that cost-and wouldnt that cost vary depending upon how efficient the carrier's operation was?