Jurisdiction of English courts when claiming against a non-EU airline operating a flight departing LHR ?

[altosbestos]

Hi there. I'll try to be as explicit as possible, and would very much appreciate some help regarding this matter.

 

I purchased a LHR-MEX (round trip) flight with the Mexican airline "Aeromexico". This flight was supposed to depart on 3rd Nov and return on the 12th of Dec. "Aeromexico" cancelled this flight in the beginning of October and, although I have tried to call them (sometimes even waiting for hours on the phone) to get a refund, they say that they will take 12 months to start processing them. 12 months -- not a typo.  

 

It is my understanding they should process refunds within 7 days as per EC No 261/2004, so I think I have a clear claim here. I issued a LBA in the middle of October and received no response.

 

I am now preparing to issue proceedings for the small claims track, but I should make two important disclaimers here:

 

1.- Although I am a legal resident in th UK, I am not a UK/EU citizen (I'm from Mexico) and,

2.- Although I purchased this flight here in the UK (through Aeromexico.com), I paid for this flight using a credit card from Mexico. In fact, it is because of this that I cannot issue a chargeback or invoke section 75, as these are not provisions that exist in my home country.

 

Looking at the fine print, my contract of carriage is with "Aerovias de Mexico S.A. de C.V.", which is a Mexican company headquartered in Mexico City. After perusing Companies House, I know for a fact that they have a UK Branch (https://find-and-update.company-information.service.gov.uk/company/FC031059), although the UK and the overseas company is "Aerovias de Mexico UK Branch" (slight difference, you'll appreciate).

 

Moreover, aeromexico.com has the following disclaimer in its T&C (but NOT in the contract of carriage, https://aeromexico.com/en-gb/legal-information):

Quote

 

Disputes

Any dispute whatsoever related to visits by users to or with the products acquired from aeromexico.com shall be submitted to confidential arbitration in Mexico City, Mexico, and the user accepts the exclusive jurisdiction of the court in force at the time of such proceedings. The arbitration judgment shall be obligatory for all parties and may be brought before any court with competent jurisdiction for the issue of a final judgment. To the greatest extent permitted by the corresponding legislation, no arbitration proceeding undertaken in accordance with this Agreement shall be connected to an arbitration proceeding related to another person subject hereto, whether through joint or separate arbitration proceedings.

 

 

Therefore, my question is:

 

Given the fact that (i) I'm not a UK/EU citizen, (ii) I paid with a credit card from Mexico and (iii) Aeromexico includes that disclaimer in its webpage... do I stand any chance if I submit a claim court? I am worried about Aeromexico trying to dismiss my claim in this technicality, arguing either that "Aerovias de Mexico UK Branch" is not "Aerovias de Mexico SA de CV" and/or that English courts do not have jurisdiction given this disclaimer forcing me to accept exclusive jurisdiction in Mexico and using a confidential arbitration process.

 

The only hope I have is that this is a flight departing from an UK airport, but I don't know if that's enough to assert that an English court has jurisdiction and those disclaimers cannot be enforced. 

 

Any help would be greatly appreciated. Thanks. 

[FTMDave]

Well, I'll answer (i).  Your citizenship is irrelevant and you have every right to bring a case in an English court.  Wait for people more expert than me to come on for (ii) and (iii).

[AndyOrch]

Can you expand more on this Mexico Credit Card...is it a major branded card ....Mastercard/Visa ?

 

Andy

[altosbestos]

Yes, it's a Visa card from a large mexican bank -- Santander Mexico. Much to my chagrin, Santander Mexico has refused to process a chargeback, indicating that according to Mexican law those are restricted to fraud (non-recognised transactions) and not to instances of services not rendered. 

[AndyOrch]

Useful links....Mexico has its own version of Consumer Protection...this would have been lot more simple if you had used a UK Credit Card.....I wont ask why you have a Mexico Credit Card ...but I did enjoy Breaking Bad 

 

https://servicios.santander.com.mx/comprometidos/eng/practicas.php

 

https://iclg.com/practice-areas/consumer-protection-laws-and-regulations/mexico#

 

https://www.profeco.gob.mx/juridico/pdf/l_lfpc_06062006_ingles.pdf

 

https://www.angloinfo.com/blogs/mexico/mexico-city/cdmx-information-blog/consumer-law-in-mexico-what-are-your-rights/

[altosbestos]

I know I should have used a UK Credit Card -- been banging my head against the wall since then. I did it because, well, that's where I'm from.

Nonetheless, I intend to pursue this in court and then claim that any forced arbitration agreement would violate The Unfair Terms in Consumer Contracts Regulations 1999.

[AndyOrch]

Have you spoken to Santander UK ?  Technically you made the purchase here in the UK...now irrespective of the CC being a Mexican Santander card the purchase was made from the UK and would of thought that there should still be some protection irrespective of which currency was deployed...and that it should still have the Visa International protection. 

 

Also I dont suppose you had any form of travel insurance or if Aeromexico are covered by Atol or similar ?

[altosbestos]

22 minutes ago, Andyorch said:

Have you spoken to Santander UK ?  Technically you made the purchase here in the UK...now irrespective of the CC being a Mexican Santander card the purchase was made from the UK and would of thought that there should still be some protection irrespective of which currency was deployed...and that it should still have the Visa International protection. 

 

 

I could not get any insurance to cover this, due to the FCO travel advisories, and Aeromexico is not part of ATOL.

I guess I can try and contact Santander UK and see if something pans out.

Do you think my prospects at court would be bleak? 

Edited November 12, 2020 by altosbestos

[AndyOrch]

Bleak if your trying to sue someone in the UK at the moment....you must exhaust all avenues first...speak to Santander UK first and then possibly Visa or Mastercard as it now I understand they recently switched.

[altosbestos]

On 12/11/2020 at 14:18, Andyorch said:

Bleak if your trying to sue someone in the UK at the moment....you must exhaust all avenues first...speak to Santander UK first and then possibly Visa or Mastercard as it now I understand they recently switched.

 

Andy, I managed to get Santander Mexico to start an "investigation" of the case, but they said it will take them 2 months to make a decision on whether they can get my money back or not. Clearly not a chargeback, as you see.

 

If Aeromexico fights this and eventually we go to court, I really do hope this will help me, because essentially I am letting Aeromexico enjoy my money for 2 extra months without any legal recourse... 

[AndyOrch]

Sounds promising...2 months is better than 12 months...but in the meantime try to converse with Santander UK and see if there any option through the UK arm.

[altosbestos]

On 13/11/2020 at 15:11, Andyorch said:

Sounds promising...2 months is better than 12 months...but in the meantime try to converse with Santander UK and see if there any option through the UK arm.

 

Andyorch, Santander Mexico has decided to issue a credit in my favour but it looks like Aeromexico might contest this "chargeback" with VISA, which will take 6 months and then there's a chance they can re-bill me.

 

Should I pre-emptively sue Aeromexico?

[AndyOrch]

You can't really legislate for what may or not happen....get the credit and then see what transpires.

 

Andy

[bahbahman]

I've used money claim online to make a claim against Aeromexico UK branch for failure to provide a refund for cancelled flights. They have until mid-February to respond - will let you know how it goes.  

[altosbestos]

25 minutes ago, bahbahman said:

I've used money claim online to make a claim against Aeromexico UK branch for failure to provide a refund for cancelled flights. They have until mid-February to respond - will let you know how it goes.  

 

Good, Aeromexico should pay what is duly owed. If you have questions or need help down the line, please don't hesitate to ask. Also, please do keep us updated! Precedent can be really valuable. 

[altosbestos]

@bahbahman Any updates? Did they file an acknowledgement or service, a full defence, or just ignored the citation?

[bahbahman]

No reply - deadline was today. Have requested a judgement by default. 

[altosbestos]

 

@bahbahman That's very good. In due course, you should ask for High Court Bailiffs. Just make sure -beforehand- that they actually have something to seize in Heathrow.

 

Please keep us posted. 

 

[altosbestos]

Hey there...

 

Any luck obtaining the judgement and enforcing it with High Court officers? 

 

Very curious on this, as Aeromexico is contesting the chargeback and will likely end up in court. Thanks. 

[BankFodder]

open

[bahbahman]

On 08/03/2021 at 08:33, altosbestos said:

Hey there...

 

Any luck obtaining the judgement and enforcing it with High Court officers? 

 

Very curious on this, as Aeromexico is contesting the chargeback and will likely end up in court. Thanks. 

 

Hi - sorry about the delayed reply. 

 

Just received a cheque from the HCEO for the full amount - plus fees and interest. Not sure what HCEO did in terms of enforcement - but they ran up £950 enforcement costs - also paid for by Aeromexico.

 

[AndyOrch]

Excellent …Well done..although this is not your topic I wonder how altosbestos is getting on ?

 

 

Andy.

 

.

[altosbestos]

@bahbahmanBrilliant! I'm very glad the law was upheld, even if it took long. @Andyorch, thanks for asking.

 

I sent Santander Mexico copies of the relevant Mexican/UK law during this "non-chargeback dispute". The credit has not been reversed as of today, so I want to think that VISA/Santander decided I was in the right. 

[bahbahman]

42 minutes ago, altosbestos said:

@bahbahmanBrilliant! I'm very glad the law was upheld, even if it took long. @Andyorch, thanks for asking.

 

I sent Santander Mexico copies of the relevant Mexican/UK law during this "non-chargeback dispute". The credit has not been reversed as of today, so I want to think that VISA/Santander decided I was in the right. 

 

Oh that's great news. The thing I learnt during this process is that you don't seem to get the credit card protection if you buy tickets through a travel agency - as technically they did their job - but not 100% sure about this. Dealing with my credit card company - Halifax was terrible experience - avoid them. I bought the tickets through an agent to save a few quid - probably won't do that again.