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

Ryanair delays what you can do and what is being done

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 flights and holiday complaints

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

Look out timber frame on a beach "researching, booking and complaining aabout holidays and flights. Tips, ideas and your rights"

 

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

 

 

book Logo cartoon cow at a laptop of book cover. How to Complain: The Essential Consumer Guide to Getting Refunds, Redress and Results!

 

 

For templates, information, advice, tips and consumer rights for a variety of sectors GET THE BOOK! How To Complain: The ESSENTIAL Consumer Guide to Getting REFUNDS, Redress and RESULTS!

Privacy watchdog fails on fines for data protection breaches

More than 2.8 million pounds uncollected in annual fines by ICO

Koala asleep on tree

ICO and fines

Britain’s personal data watchdog has failed to collect millions in fines for breaches of the Data Protection Act (DPA).

The Information Commissioners Officer (ICO) is responsible for enforcing the DPA and new GDPR regulations, which come into force today (25 May 2018). Figures obtained through Freedom of Information requests by me show:

The total sum of fines issued under the Data Protection Act 1998 (DPA) and Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) for each of the last three financial years is:

2015-16 – £2,529,250

2016-17- £3,556,100

2017-18 – £4,809,700

But how much of this was actually received?

2015-16 – £748,100

2016-17 – £1,938,600

2017-18 – £1,923,655

So, in the most recent year, for example the ICO has failed to collect more than 60% of the fines it has imposed, for a total of more than 2.8 million pounds.

Whilst the total of fines has been increasing, the collection rate has been decreasing. The ICO is keen to point out that there are several factors that have an impact on the difference between the total amount fined and the total amount paid for each financial year.

GDPR means more cash for the ICO

According to the law, companies and other organisations must register with the ICO and pay an annual fee for the privilege. I uncovered how the ICO will benefit financially from the new GDPR rules. Last year (2017/18) £21,299,976 was raised in data protection fees income. The projected data protection fee income for this year (i.e. financial year 2018/19) is £32,341,250. This represents an uplift of £11,041,274.

74% of the ICO’s income will be spent on salaries, that’s a massive £24,983,045 for around 400 staff!

I contacted the 31 other countries bound by the EU law regarding the data protection registration and asked them if they charged a fee. 15 responded to say that they did not.

Support for businesses from the ICO lacking

Although generally good news for consumers (Ten ways GDPR will help consumers) the ICO faces widespread criticism of its handling of the new GDPR legislation. Despite the massive hike in projected income and increase in staff, big business and sole traders alike are frustrated by the lack of support and consistent advice on the new data privacy law.

old fashioned dusty switchboardWe are all seeing an increase of emails requesting consent to keep recipients on their mailing list which are unnecessary where they already have our permission. Laura Light, blogger at savings4savvymums is one of many sole traders who is frustrated by all the conflicting advice. “I was on the phone last week asking about opt-ins to then be told by a different advisor the info I was told was wrong! They need to get their facts straight and stick to them. How on earth can anyone be expected to get it right when the ICO doesn’t even know what’s right?”

Naomi Willis was left on hold for 1 hour 4o minutes before being cut off and then again for nearly two hours when she rung the ICO. To say nothing of the ICO website being down for most of the day yesterday!

Why is a registration fee for data protection needed?

Naomi from Skint Dad, a small business, questions the need for a fee: “The whole idea of GDPR is that everyone should be doing it. I don’t therefore understand why most need to pay a fee to the ICO. Having a fee is just putting people off from following the new legislation. It’s not like the money has gone on any support!”

And as mentioned above – other countries undertaking the same work are not charging. Why?

Jumping on the GDPR bandwagon

There appears to be an increase in companies seeking to capitalise on the confusion too. Naomi has noticed that people with no legal background who appear to have read (some of) the guidelines are offering very expensive advice to people and organisations who are wrongly panicking about being fined. Willis worries for next week and beyond “I think it will be worse from next Tuesday as these people will become parasites, just looking at websites with no privacy policy, then trying to hard sell them generic policies that aren’t fit for purpose.”

GDPR causing unnecessary costs for small organisations

The cost of GDPR is hitting business across the board, especially in the not-for-profit sector. Already strapped for cash schools and local authorities must spend thousands of pounds on privacy staff and external advice but are not being given any extra funding to do so.

While most privacy policies are written in dry legal language, some small businesses have taken a novel approach to these documents. For example, the website WritersHQ has created a witty explanation for every area of GDPR full of choice language in its Privacy Policy. The popularity of the policy, which has been shared widely on social media, is perhaps a reflection of how small businesses feel about GDPR! Marianne Chua is a wedding photographer whose Privacy Policy takes a humorous sarcastic slant. For example “I’m happy to show you the information I have on you, and unsurprisingly it’ll probably be exactly the things you’ve told me because sadly I am neither a spy nor a mind reader.”

ICO and protection irony

ICO is making sole traders postal addresses public! For most sole traders this is their home address making them vulnerable to a number of issues. The ICO does not have to make these home addresses public. But, the ICO said ““Even though it is no longer a legal requirement under the GDPR, the ICO will continue to publish a register of data controllers because we recognise there is a public interest in transparency and accessibility. It is important that data subjects have a clear way to contact data controllers and to exercise their legal rights. Being a data controller represents responsibilities, one of which is to be easily accessible to data subjects. We will be publishing the postal addresses of data controllers, including sole traders. We will not be asking for consent to do so but we will be advising them that they can provide a PO Box address instead if they wish to do so.”

ICO and glass houses..

I think Naomi sums it up perfectly. “Information we need to provide must be “concise, transparent, intelligible and easily accessible” but the ICO seem to be having a hard job of doing this themselves! What I’ve seen from them is long winded, full of holes, late and the information on their site goes around in circles, let alone having a chance to speak to a human for support!”

Time perhaps for the ICO to get its own house in order before it starts looking at fining businesses?

Someone shouting into tin can with string. Text privacy watchdog fails on fines for data protection breaches and support on GDPR

[1] A spokesperson for the ICO said that "If the Commissioner receives full payment of the monetary penalty within 28 calendar days of the notice being sent, the Commissioner will reduce the monetary penalty by 20%.

Secondly, ongoing or successful appeals against a CMP will delay, or negate, the amount of CMP to be paid. In some cases, appeals to the FTT can lead to the reduction in the amount organisations are required to repay.

In addition, each monetary penalty notice issued will define a timeframe in which the CMP should be paid, which will be a period of at least 28 calendar days beginning the first day after the monetary penalty notice has been served. Therefore, in more recent cases, although a monetary penalty notice has been issued, payment may not yet have been made.”