Jet2 delay - asking for individual claims from a family group

[howticklediam]

Part two of the same question. I'm keeping it separate as it's a slightly different but related issue:

 

Is the term "bring an action" unfairly unclear for T&Cs on a consumer website?

 

They are interpreting it as bring a LEGAL action, i.e. court proceedings, although it doesn't explicitly say that.

 

My interpretation is that because I initially made my claim within two years it counts as taking an action if the term is taken literally, i.e. writing the letter was the action I took, and that anyone not trained in law would not know that "bring an action" has a legal implication.

 

So do I have a case for saying the term is unfair?

[howticklediam]

This question relates to a flight booking but boils down to a question of general consumer law.

I've also posted this to the general consumer issues, but repeating here as it is also a legal issue.

 

I booked a flight and need to make a claim for delay. The airline is saying that the T&Cs have a restrictive clause that limits my time to "bring an action" to two years, and that I agreed the T&Cs when I made the booking.

 

Normal Statutory Rights have a six year limitation.

 

However, the only copy of the T&Cs they can produce which have the limiting clause are from a web archive from two months before I made the booking.

 

The T&Cs that I received via email with the booking confirmation do not include that specific clause but they do say refer to the T&Cs on the website.

 

According to my research of The Consumer Protection (Distance Selling) Regulations 2000 which were current at the time of booking, the T&Cs must be delivered on a durable medium, e.g. email or letter that can be stored unaltered for future reference. It also states that T&Cs behind a link on a website that are subject to change (and they have been updated many times) are not a durable medium.

 

So the question is, do I have a case for declaring invalid the T&Cs produced by the company as they are not on a durable medium, and because they are subject to change, and because I have no way of referring back to the precise T&Cs at the time of booking as they are updated regularly?

 

Can I force a court to only consider the T&Cs that were emailed to me with the booking confirmation, as this is my only (and it would seem the only) permanent record.

 

Many thanks in advance to any consumer law experts out there.

[howticklediam]

Related to my previous post, but I'm keeping it separate as it's a slightly different

issue:

 

Is the term "bring an action" unfairly unclear for T&Cs on a consumer website?

 

The company I am in dispute with are interpreting it as bring a LEGAL action, i.e. court proceedings, although it doesn't explicitly say that.

 

My interpretation is that because I initially made my claim within two years it counts as taking an action if the term is taken literally, i.e. writing the letter was the action I took, and that anyone not trained in law would not know that "bring an action" has a legal implication.

 

So do I have a case for saying the term is unfair?

[dx100uk]

whoevers T&C you refer to or they do

 

 

they cannot change the statute of limitations.

 

 

all T&C's can be questioned

 

 

like the bank charges and PPI

 

 

just because its in someones T&C does not mean it cast in stone.

 

 

dx

[steampowered]

Is the term "bring an action" unfairly unclear for T&Cs on a consumer website?

'bring an action' is a fairly common phrase. I think you'd struggle to convince a court that writing to them was sufficient to constitute bringing an action.It is possible to have a contractual requirement to bring a claim within a certain period of time which is shorter than the usual six years, although in consumer contracts it can often be challenged.

According to my research of The Consumer Protection (Distance Selling) Regulations 2000 which were current at the time of booking,the T&Cs must be delivered on a durable medium, e.g. email or letter that can be stored unaltered for future reference. It also states that T&Cs behind a link on a website that are subject to change (and they have been updated many times) are not a durable medium.So the question is, do I have a case for declaring invalid the T&Cs produced by the company as they are not on a durable medium, and because they are subject to change,and because I have no way of referring back to the precise T&Cs at the time of booking as they are updated regularly?

I assume you are referring to Regulation 8 of The Consumer Protection (Distance Selling) Regulations 2000. If you read that Regulation carefully it only applies to particular categories of information such as the price, delivery costs and cancellation rights. It doesn't refer to the entire T&Cs.

However, the only copy of the T&Cs they can produce which have the limiting clause are from a web archive from two months before I made the booking.

You should state that you have no recollection of agreeing to those T&Cs. You should put Jet2 to proof that you accepted those T&Cs and that they were current at the time of booking. Perhaps this would be a suitable case for doing a Reply to their Defence.

 

You may also argue that the limitation is an unfair term and therefore unenforceable under http://www.legislation.gov.uk/uksi/1999/2083/regulation/5/made. You can point out that this falls within the indicative list of terms which may be regarded as unfair - see item (q) at http://www.legislation.gov.uk/uksi/1999/2083/schedule/2/made.

261 - Article 15Exclusion of waiver1. Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.

Now I haven't read the More case, but it seems to me that their limitation does fall foul of this provision. It is a limitation on the airline's obligations to its passengers under that Regulation.

 

You must understand that the judge will probably be completely unfamiliar with this regulation. He probably won't go and research the regulation for you. You need to have a few full copies of the regulation with you in the court room and you need to be able to point the judge towards the Article you are relying on.

 

Hope this helps ...

[howticklediam]

'bring an action' is a fairly common phrase. I think you'd struggle to convince a court that writing to them was sufficient to constitute bringing an action.It is possible to have a contractual requirement to bring a claim within a certain period of time which is shorter than the usual six years, although in consumer contracts it can often be challenged.I assume you are referring to Regulation 8 of The Consumer Protection (Distance Selling) Regulations 2000. If you read that Regulation carefully it only applies to particular categories of information such as the price, delivery costs and cancellation rights. It doesn't refer to the entire T&Cs.You should state that you have no recollection of agreeing to those T&Cs. You should put Jet2 to proof that you accepted those T&Cs and that they were current at the time of booking. Perhaps this would be a suitable case for doing a Reply to their Defence.

 

You may also argue that the limitation is an unfair term and therefore unenforceable under http://www.legislation.gov.uk/uksi/1999/2083/regulation/5/made. You can point out that this falls within the indicative list of terms which may be regarded as unfair - see item (q) at http://www.legislation.gov.uk/uksi/1999/2083/schedule/2/made.Now I haven't read the More case, but it seems to me that their limitation does fall foul of this provision. It is a limitation on the airline's obligations to its passengers under that Regulation.

 

You must understand that the judge will probably be completely unfamiliar with this regulation. He probably won't go and research the regulation for you. You need to have a few full copies of the regulation with you in the court room and you need to be able to point the judge towards the Article you are relying on.

 

Hope this helps ...

 

That is great advice and I will use it. Thanks very much.

[steampowered]

Glad it is useful, please do circle back if you need further help, and let us know how this all turns out!

 

My experience is that many of the airlines are truly pathetic when it comes to paying flight delay compensation and will claim exceptional circumstances for absolutely everything. I expect you'll have to take this one all the way to a hearing (or perhaps they might try and settle a few days before).

[howticklediam]

Steampowered, I am more than happy with your reply, but as Site Team, can you tell me why this post has been mixed up with my other posts on the same subject that was on the Jet2 thread.

 

Is it a glitch in the SW or have the posts been combined by the administrator. I asked the question on the General Legal area because my Jet2 case has boiled down to a general point of law that's not specific to airline delay.

 

Thanks

[steampowered]

Steampowered, I am more than happy with your reply, but as Site Team, can you tell me why this post has been mixed up with my other posts on the same subject that was on the Jet2 thread.

 

Is it a glitch in the SW or have the posts been combined by the administrator. I asked the question on the General Legal area because my Jet2 case has boiled down to a general point of law that's not specific to airline delay.

 

Thanks

 

 

Hi - I suspect your threads were merged by an administrator. We usually merge threads on the same topic as otherwise things can get a bit confusing.

[howticklediam]

This relates to a flight delay

 

 

I want to put it in this forum as it's a general legal issue of contract law on which I would like a legal perspective from someone knowledgeable.

 

I'm in dispute with an airline over flight delay compensation.

They say there is a time limit in the contract after which I can't take legal action.

This two-year time limit is a well discussed topic on the internet currently.

However, where my case differs from most others is that I can demonstrate with evidence

that the airline have lied about the reason for the delay from the outset

and that they have (I would say deliberately) forced the contract out of time.

 

I'm searching for the correct point in law, or the right words, to say that they can't deliberately force an issue out of time.

 

 

The closest I have found is that a company has a duty of care towards it customers.

 

 

Which is the responsibility or the legal obligation of a person or organization to avoid acts or omissions

(which can be reasonably foreseen) to be likely to cause harm to others.

 

 

In other words they can't deliberately lie to me in order to put me at a financial disadvantage and deny me of my rights for compensation.

 

I'm not sure how relevant this is or if there is some more specific point of contract law I should use. Any supporting case law would be most welcome.

 

Many thanks in advance for any help.

[BankFodder]

The delay is six years from the date of the cause of action – meaning from the date of the breach of contract.

 

I can't imagine where the airline thinks it's getting two years from. Maybe you can find out let us know.

 

You say that the two-year limit is well discussed on the Internet. Maybe you could tell us what some of the arguments are about it.

 

It is six years. The airlines would love it to be two years

[citizenB]

Moreover, the CAA claims the same two airlines are imposing two-year time limits for passengers to take compensation claims to court, despite a Court of Appeal ruling that passengers should have up to six years to take a claim to court.

 

 

Read more: http://www.thisismoney.co.uk/money/n...#ixzz3VDU9lYAz

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?442047-Airline-ordered-to-stop-delaying-compensation

[howticklediam]

Bankfodder,

 

http://forums.moneysavingexpert.com/forumdisplay.php?f=251

 

It's been in the news a lot recently. The CAA are trying to make the airlines honour the six year statute, but some airlines have a restrictive clause that may or may not be enforceable. It's also discussed on the CAG flight delay section.

 

However I'm really only interested in the concept of whether you can or cannot deliberately force a contract out of time (six years or two years).

[howticklediam]

citizenB,

 

Thanks, I know all about the CAA's action, but the airlines are still taking this through the courts which is why I asked a specific question.

[BankFodder]

Their contracts are subject to the limitation act – like all contracts.

 

If you think you have a claim against them then simply sue them in the County Court under the small claim system if it is less than £10,000.

 

I'm quite sure that rather than go to court and establish a principle they will simply put up their hands. They're like most of these big companies – they are just bullies

[howticklediam]

BankFodder,

 

I am going through the court right now. A case was lost on the two-year time bar yesterday in Scarborough. Ryanair are being taken to a CC appeal on this issue on Friday. It will probably run to the CoA and be decided one way or the other

 

But I am only interested in finding some law which says that you cannot deliberately force a contract out of time (if it exists).

 

Thanks

[Conniff]

When was your delay ?

 

 

In the first test case since the 2012 ECJ decision, in January 2013, Stoke-on-Trent county court ruled that Thomas Cook must pay compensation to passengers who, in 2009, had experienced a 22-hour delay caused by a mechanical fault.

 

 

The courts say here 2009.

[steampowered]

Most commercial contracts have a clause which says any claims must be brought within (for example) two years, else they are deemed to be waived. This is generally believed to be enforceable. But its a bit different for consumers.

 

As a consumer, there are three ways to challenge this. The first way is to claim that this limitation is an unfair term contrary to the Unfair Terms in Consumer Contracts Regulations 1999.

 

The second way is to claim that the T&Cs that airline used at the time are unclear and do not cover a compensation claim for flight delay. This has been very successful in court recently. Have a read of http://www.4kbw.net/news/25022015140717-contractual-time-limits--compensation-and-interest-under-regulation--ec--261-2004-/.

 

The third way is to use a technical argument along the lines that the underlying EC Regulation does not allow airlines to limit their liability under that regulation. I don't recommend this because I don't think that argument is right and it is also quite difficult for a non-lawyer to argue in court.

 

I don't think the dishonest conduct by the airline affects anything with regards to the time limit to be honest. Either there is a limit or there isn't.

 

I would recommend simply going ahead and issuing a court claim through moneyclaimonline. The airline will no doubt defend but you will probably never get anywhere if you don't. The policy of most airlines is to defend even perfectly valid claims tooth and nail.

[howticklediam]

Thanks steampowered for a very helpful reply. I already have a court date so I will be emphasising the unfair terms aspect of my case. I was hoping that there was some law that said that one party isn't allowed to deliberately deceive another in order to gain an advantage, the best I've found is:

 

Unfair Terms Consumer Contracts 1999 - schedule 2

Annex

(q)excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

 

But if not, it seems a little unfair, so be it.

[howticklediam]

Hi Guys,

 

I'm new to this thread but not to CAG.

 

I am in dispute with an airline in the County Court. I have a hearing in two weeks and the airline have now said they are not defending the claim any more, only the costs. I hadn't applied for any costs, which got me thinking that maybe I should.

 

I have a good case against them for being unreasonable.

 

My question is, how do I go about entering an application for costs?

 

I can't find a suitable form so I thought I would just write it out as a Particulars of Claim and list what I am claiming for and submit it to the court and the defendant ahead of the hearing.

 

Also, I have read I can claim for £19 per hour preparation time and £95 for a day off work. Are these figures listed anywhere in official guidance? I can't find them on Justice.gov.

 

Thank you.

[dx100uk]

three threads merged for history

 

 

please keep to one thread

 

 

dx

[howticklediam]

three threads merged for history

 

 

please keep to one thread

 

 

dx

 

I put it on the legal thread because it's specifically a question about County Court procedure. Now it won't be seen by the experts in that area.

 

This has nothing to do with the original question. Are you saying every time I post to CAG you are going to bung it on a different/combined super-thread of all my posts.

 

That's really presumptuous and annoying, and defeats the object if I'm not reaching the experts I want to reach.

Edited November 13, 2015 by howticklediam
.

[howticklediam]

I want to claim for costs in County Court as I the defendant had acted unreasonably and is no longer defending the claim, just costs.

 

Can anyone help with guidance of how to do this?

 

I can't find a suitable form so I thought I would just write it out as a Particulars of Claim and list what I am claiming for and submit it to the court and the defendant ahead of the hearing.

 

Also, I have read I can claim for £19 per hour preparation time and £95 for a day off work. Are these figures listed anywhere in official guidance? I can't find them on Justice.gov.

 

Thanks

[citizenB]

I see from the viewing history below that all those people who would see/respond to a question in the Legal forums, have already looked at your thread previously - so they will see it as they are subscribed to the thread and probably waiting on updates.

[citizenB]

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-46-costs-special-cases/practice-direction-46-costs-special-cases

 

 

3.2 Where a self represented litigant wishes to prove that the litigant has suffered financial loss, the litigant should produce to the court any written evidence relied on to support that claim, and serve a copy of that evidence on any party against whom the litigant seeks costs at least 24 hours before the hearing at which the question may be decided.

 

3.3 A self represented litigant who commences detailed assessment proceedings under rule 47.5 should serve copies of that written evidence with the notice of commencement.

 

3.4 The amount, which may be allowed to a self represented litigant under rule 45.39(5)(b) and rule 46.5(4)(b), is £19 per hour.

 

 

 

 

https://www.moneyclaimsuk.co.uk/litigant-in-person-costs-and-expenses.aspx