Landing in court with Ryanair (what you need to know about airlines and ADR too!)

Update 05 December 2018

The BBC reports Ryanair compensation claims to go to court

“The Civil Aviation Authority has said it is taking legal action against Ryanair over its refusal to compensate thousands of UK-based customers.

Their flights were cancelled or delayed over the summer because of strikes by Ryanair pilots and cabin crew.

The CAA says they are entitled to compensation under EU law.

However, Ryanair argues the strike action amounts to “extraordinary circumstances” and that therefore, it does not have to pay.”

“Ryanair has now told the CAA that it has terminated its agreement with ADR.

“As a result of Ryanair’s action, passengers with an existing claim will now have to await the outcome of the Civil Aviation Authority’s enforcement action,” the CAA said.”

Summer of 2018 sees Ryanair, CAA and AviationADR in a flying shame of failures.

Ryanair aeroplane in sky

Ryanair failures

The Summer of 2018, like the Summer before, has seen Ryanair failing passengers trying to get to weddings, funerals, business meetings and, of course, holidays. This year, it seems that Ryanair is even trying to beat last year’s number of cancellations.

In 2015 the Civil Aviation Authority (CAA) launched enforcement action against Ryanair. This action followed a review by the regulator that found Ryanair was not complying fully with European consumer law designed to support passengers following flight disruption. Ryanair was required to make policy changes or face the prospect of further enforcement steps leading to court action, if the airline remained non-compliant. Whilst it may have made policy changes “on paper” it appears to continue to flaunt them.

In 2017 the CAA launched enforcement action against Ryanair for persistently misleading passengers with inaccurate information regarding their rights in respect of its recent cancellations. This was after Ryanair repeatedly said it would not offer compensation for cancelled flights. The same is happening again, and although the CAA has issued a statement saying that Ryanair should be paying compensation, it has so far fallen short of taking enforcement action.

AviationADR failures

 

There are six different schemes authorised by the CAA to deal with airline complaints.  AviationADR and CEDR are the two main alternative dispute resolution (ADR) providers. AviationADR is the provider for Ryanair. So, those passengers not getting any joy from Ryanair could take their case to AviationADR. However…..

Which? articles

Earlier in the year Which? attempted to obtain the data on the number of complaints resolved by AviationADR and CEDR through a Freedom of Information Act request to the CAA. I requested the quarterly reports and was also refused. However, my FoI Internal Review request on this decision was successful. Which? reported Fewer than 500 Ryanair passengers awarded compensation by complaints body in 2017.

“AviationADR received over 3,600 EU261 complaints about Ryanair in 2017. Only 496 passengers were awarded compensation. The vast majority of complaints were still outstanding at the end of year. In the first quarter of 2018 AviationADR received over 2,400 flight delay and cancellation complaints about Ryanair. In this time 282 passengers were awarded compensation and 98 were told they were entitled to nothing, leaving thousands still waiting for a decision.

For the first quarter of 2018 the figures are even worse. AviationADR received over 2,400 flight delay and cancellation complaints about Ryanair. In the same period just 282 passengers were awarded compensation and 98 were told they were entitled to nothing, meaning thousands were still waiting for a decision.”

In addition, “Aviation ADR said that a ‘very large’ number of the remaining complaints were ‘put on hold’ because they had been submitted by claims-management companies, who are in dispute with Ryanair. It said: ‘Given the ongoing litigation between (claims solicitor) Bott & Co and Ryanair… the claims management companies have agreed that these claims should be put on hold pending the final outcome of the court case.’

Bott & Co doesn’t accept that it has ‘agreed’ that the claims should be put on hold. It says, ‘we felt that the claims should be looked at, however Aviation ADR have currently refused to do so, because Ryanair won’t deal with claims presented by solicitors.’ It confirmed that it had made about 100 claims through Aviation ADR in 2017, ‘but we never got a response on any of them.’ It also said that it had another 10,000 complaints it had been planning to send, ‘but they told us to wait because they wouldn’t consider the claims whilst Bott & Co v Ryanair was ongoing.’

Which? has previously raised concerns about AviationADR in Passengers still having to fight for flight delay compensation. This article outlined that The Retail Ombudsman (Details of reasons for the name change from TRO to various others can be found at The Retail Ombudsman is no more) was:

  • Committing an offence by even calling itself an ombudsman.
  • Wrongly implied in its 2015 annual report that Sainsbury’s and Tesco, as well as many other retailers, were members of its ADR scheme.
  • Allowed to call itself an ombudsman for more than a year by the Ombudsman Association (OA) before investigating. THE OA later issued a statement that The Retail Ombudsman ‘did not meet the OA’s membership criteria for independence, fairness, effectiveness, openness and transparency, and accountability’.

The Independent article

The Independent reported on AviationADR where a wrong decision had been made advising a passenger to claim against the airline with which she flew when Ryanair cancelled her flight. Not only that, it incorrectly advised her to claim against that airline, rather than against Ryanair! The airline was also an AviationADR member, so it would have been paid twice for essentially the same complaint!

Omnishambles reports

The two reports I co-authored with Marcus Williamson, ceoemail.com Editor, on the oversight of Ombudsmen and ADR providers, Ombudsman Omnishambles (OO) and More Ombudsman Omnishambles (MOO), heavily criticised the approval of Consumer Dispute Resolution Limited (CDRL), the company that runs the AviationADR scheme.

Delays in payment

Air India customer, Mukhtiar, is having problems getting the airline to pay the compensation he is owed.  He was told on 21 February 2018 that AviationADR had ordered Air India to pay up on his case but he’s still yet to receive anything. On the 26 June 2018 Mukhtiar asked AviationADR for an update. AviationADR said “I can confirm however that we are seeking further assistance from the CAA (Civil Aviation Authority) regarding this matter.” This begs the question: if AviationADR has to refer to the CAA for an issue of non-payment, just how effective is it? Six months later, as of 20 August 2018, Mukhtiar still does not have his money.

A spokesperson for the CAA said:

“The CAA maintains a regular dialogue with the UK ADR providers and is aware of only a relatively small number of cases of late payment of awards. The CAA itself receives a handful of complaints from consumers about late payment of awards. In the CAA’s view, this does not indicate that there is a systematic issue with the timeliness of the payment of awards resulting from ADR decisions. We will continue to monitor the situation closely.”

AirIndia has also now terminated it’s contract with AviationADR.

Ryanair comment regarding ADR

Ryanair was asked for the number of customers who have been paid out through AviationADR decisions and how many where the customer has come direct and Ryanair has made a decision in the customer’s favour. It was also asked how many cases for compensation it received in 2017and how many of those it awarded compensation and how many went to ADR. Ryanair said “We don’t break down our data on claims to that extent.”

Strike action

As regards the strike action, a spokesperson from Ryanair said “With regards to EU261 compensation for cancellations arising from strikes, our position has not changed: “Ryanair complies fully with EU261 legislation, under which no compensation is payable to customers when the (strike) delay/cancellation is beyond the airline’s control. If these strikes, by a tiny minority of Ryanair pilots, were within Ryanair’s control, there would have been no strikes and no cancellations.”

When asked for a comment regarding the strikes by cabin crew Ryanair refused to provide a comment.

The European Court of Justice ruled in the case of Helga Krüsemann and Others v TUIfly GmbH case, that a strike by the company’s employees are not “extraordinary circumstances”.

CAA monitoring of ADR schemes

A spokesperson for the Civil Aviation Authority said:  “The ADR Regulations, which set out the rules to which approved ADR bodies must adhere, specifies that ADR providers must reach their decisions within 90 days from the receipt of the complete case file – and to report each year on the average time taken to resolve complaints. For the year up to March 2018, the two ADR providers reported an average time of 65 days to reach a decision, well below the 90 day threshold. We are aware that a small number of complaints do exceed the 90 day threshold, and indeed we receive a handful of complaints ourselves from consumers who have experienced a delay in their complaint being decided. We will continue to monitor this issue and to work with the ADR providers to ensure that complaints are dealt with in a timely manner.”

It is important to note, “90 days from the receipt of the complete case file”. This means that an airline could hold up the case indefinitely by never sending required documents! As far as the CAA is concerned the providers are doing ok even if an airline takes 5 months to send information!

A spokesperson for the CAA said:

“The CAA maintains a regular dialogue with the UK ADR providers and is aware of only a relatively small number of cases go over the 90 day time limit. The CAA itself receives a handful of complaints from consumers about the timeliness of ADR decision making. In the CAA’s view, this does not indicate that there is a systematic issue with the timeliness of ADR decision making. We will continue to monitor the situation closely.”

Trying to gain examples of monitoring has proven difficult. The CAA has been given copies of both the OO and MOO report and is aware of the OA and Which? criticism but has continued to approve AviationADR.

In February of this year the CAA said that  the average rate for consumer complaints being upheld by CEDR was 89% and for AviationADR  71%

If you have used ADR and not been paid out, contact the CAA  CEO.

What if you do not want to use AviationADR?

Having read the articles and documents you may not want to use AviationADR, so what do you do?

Do you need to show you have used ADR before you can go to court?

The Pre-Action Conduct guide, published by the Department of Justice, explains the conduct and steps courts would normally expect parties to take before commencing proceedings for particular types of civil claims.

This conduct states that litigation should be a last resort. The defendant and complainant should consider whether negotiation or ADR might enable them to settle their dispute without commencing proceedings. They should consider the possibility of reaching a settlement at all times throughout the process.

The court may decide that one or more parties (claimant or defendant) has failed to comply if s/he has unreasonably refused to use a form of ADR, or failed to respond to an invitation to do so.

If there has been a non-compliance that is not materially important then there’s no need for the court to do anything. But if there has been a non-compliance the court could pause or stop the proceedings until the party fulfils its duty under the pre-action conduct/practice direction. It is possible that if a claimant hasn’t tried ADR, the court could stop the case proceeding any further until the parties have used an ADR provider. The court could also apply sanctions.

The sanctions that could be applied (for any non-compliance with the protocol) cover the financial implications. The party at fault for non-compliance may have to pay the cost of proceedings, or part of the cost to the other party. This could be on an indemnity basis (which means that it might not be proportionate). If the claimant has been awarded money s/he may be awarded less interest than otherwise may have been the case. (If the defendant is at fault, s/he may be awarded a higher rate

I am not aware of any cases where someone has received sanctions as described above for not undertaking ADR. I would think the suitability of the ADR provider could provide grounds for your refusing to use that route.

Don’t be tempted into using a claims company either. they aren’t going to be able to do anything you can’t. See ECJ ruling on flight delays: Consumer champion warns against third-party claim firms

Possible reasons for putting forward the case not to use ADR

The wording in the protocol clearly states that ADR should be considered. It does not say it must be taken. The Which? articles, the article in The Independent and the two reports go into a lot of detail about failures, delays in dealing with complaints, mistakes etc. It should be easily possible to argue that you have considered ADR in this case but for the following reasons:

1)    Details of the Which? articles

2)    Details of The Independent article

3)    The points from OO report that relate to AviationADR (The Retail Ombudsman/CDRL)

4)    The summary of the financial history of Dean Dunham’s companies provided in the MOO report

5)    The list of points in the MOO report which relate to AviationADR

6)    The minutes from the Ombudsman Association (reproduced in the MOO report) that show that CDRL lack the credentials to provide quality ADR.

7)    Examples of AviationADR not enforcing decisions to make airlines pay. Small claims court process made simple gives you an outline of what you need to know about the process.

I am not a lawyer and do not give legal advice. I give help and guidance and the above is just my opinion. However, I believe a court will understand if you feel that AviationADR would be unable to deal with your case satisfactorily, given the background information shown here!

Westminster Business Forum seminar Next steps for consumer protection in the UK – dispute processes, enforcement and the consumer markets green paper. 15/11/18 Alternative Dispute Resolution – approval and oversight in the loosest possible sense of the words…

Alternative Dispute Resolution – approval and oversight in the loosest sense of the words…

Look East interviews Ryanair CCO and Helen Dewdney

LookEast Evening and Late News 23/08/18. Two interviews with me regarding the current situation and one with the Ryanair Chief Commercial Officer David O’Brien. Looks at strikes, rights, bounced cheques and baggage issues.

Look East interviews Ryanair CCO and Helen Dewdney

Further advice and help regarding holidays

What to do when your flight is delayed or cancelled – the full guide

All you need to know about booking/complaining about holidays/flights

Support the NHS challenge Hunt in judicial review

Hurrah. A group of NHS staff and patients announced today that they have instructed Bindman’s LLP solicitors to investigate judicial review proceedings.  Excellent news. So what is it all about and how can we the public help?

What is a judicial review?
It is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. So in this case the Health Secretary would have to provide evidence to justify the decisions he has taken and show that they are reasonable, viable and legal. Through this process, the group will uncover whether the government has considered the full implications of the dangers of this contract imposition, and whether the decision was legally made. I think we all know the answer to that one but unfortunately we have to go through the process to get it. 55,000 NHS staff wrong or a few MPs? Hmmmm.

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The review
This will be a far-reaching judicial review centering on the detrimental impact of the proposed new contract on patient safety and stability of the NHS. While the BMA has already announced a legal action last week on grounds that the Health Secretary has failed to carry out an Equality Impact Assessment, the group of NHS staff and patients’ challenge is significantly broader in scope, examining many other aspects of the decision to impose a contract on junior doctors with issues of patient safety at its heart.

Dr Ben White said “Forget the lies and propaganda. The imposition of the junior doctors’ contract affects all NHS service users. Staff know that the lack of workforce planning, lack of cost modelling, plus rota and staffing issues, create a perfect storm where patient safety will inevitably be compromised. We must challenge this contract in the High Court. A judicial review would consider all relevant factors and hold the government accountable for decisions it has made. Ultimately, this is about public safety.”

The truth and lies behind the junior doctors’ strike
Dr Jacky Davis wrote a guest post a couple of weeks ago and in it describes the facts about the change in contracts and provides the information you need to know if you are in any doubt that what Hunt is imposing is safe for you and your family.

Dr Francesca Silman said “It is clear the government has not considered the implications of their plans- financially, practically or in terms of impact on patient safety. In a recent Parliamentary Public Accounts Committee review, it was suggested that the senior department of health chief, Charlie Massey, was ‘flying blind’ on this issue.  We cannot tolerate politics placed before patient welfare.”

In the same Public Accounts Committee review, David Mowat, MP, said “I am surprised that you can put this [7 day NHS] policy in place without having some idea of the implication for staffing levels at the headcount planning level … or, indeed, for cost and budget.”

Why is this review important?
Dr Phil Hammond, Vice-President of the Patient’s Association said “No one can say whether the new contract will be better or worse for patients than the existing one. Medicine is littered with examples where expert and political opinion has trumped proper scientific evaluation, at huge cost to patients. Please support this judicial review” He has already said “Test the science”, Hunt’s way and the doctor’s proposal, in different hospitals and see what works and he said a lot more sense too:

What can we do to help right now?
The group, backed by prominent medical staff and patient safety advocates are crowd funding through Crowd Justice. At the point of writing this the initial £25,000 needed to start investigation proceedings had been raised. It is unknown just how much needs to be raised in total as it will depend on how strongly the issues are disputed, whether other parties decide to support the challenges, how lengthy and complex the research will be, how many hearings will be needed and how long the final hearing is.

So please contribute to the fund. The page and more information can be found here: Crowd Justice donation page: Crowdjustice.

What else can we do to help?
If you want to help then there ARE things you can do and some of them will only take a few seconds of your time and all will help raise the profile of all the issues.

  1. Please read about what is happening to the NHS and its staff  and think about joining a campaign or a local patients group.
  2. Practical action could also include writing to your MP and to national and local papers to support the juniors, turning up at the picket lines on days of action
  3. The continued use of social media to dispel the lies put out by the government
  4. Share this post with friends and family
  5. Join the campaign – Keep Our NHS public
  6. Read up on the privatisation of the NHS at NHS for sale
  7. Follow and rt @keepnhspublic
  8. Sign the petition Consider a vote of No Confidence in Jeremy Hunt, Health Secretary
  9. Sign the petition Jeremy Hunt to resume meaningful contract negotiations with the BMA
  10. Sign the petition Labour Party and TUC – call a national demonstration to support the junior doctors!
  11. Sign the letter asking asks David Cameron to show the BMA his plan for extended seven-day services here.
  12. Join the thunderclap here takes place 6.30pm 14th March 2016

Together we can save our NHS, please help. If you want the NHS to fight for you and your loved one’s health in the future you have to fight for it now, because otherwise it may not be there just when you need it.

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