Airline compensation claims scuppered

Tim Malpas Tim Malpas was hoping to sue Thomas Cook in August

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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.

Start Quote

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”

End Quote Andy Lewis

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.

Passengers sleeping at Ontario airport, California Thomas Cook passengers sleeping overnight at Ontario airport, California, December 2008

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.

Getting nowhere

Letters and phone calls, including an hour-long telephone conversation with its customer services director, failed to move Thomas Cook.

Start Quote

It's unfortunate, it could take a couple of years for passengers rights to be clarified”

End Quote Rochelle Turner Which Holiday

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.

Passengers congregate at Ontario airport, California, December 2008 Passengers waited for hours in the middle of the night

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.

Start Quote

You have to grab them by the balls, then they pay up”

End Quote Hendrik Noorderhaven EU Claim

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."

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