Today (12 June 2019) The Consumer Minister, Kelly Tolhurst, announced that the Government intends to serve Whirlpool with a full recall notice for all tumble dryers that are at risk of fire. She told the House of Commons that “consumer safety is a priority for the Government”. History would say otherwise, in my opinion.
This decision comes after many years of fire outbreaks caused by faulty Whirlpool products and continual efforts by consumer organisations and individuals fighting to get the company to carry out a full recall. Some 750 fires have been reported involving Hotpoint, Indesit and Creda tumble dryers during the period 2004 and 2018, including three injuries.
On 23 November 2015 Whirlpool issued a warning regarding 113 different models of their tumble dryers due to the risk of fire. This risk was caused by fluff coming into contact with a heating element. All machines affected were manufactured between April 2004 and September 2015.
Models from Hotpoint, Indesit or Creda were recalled by the firm Whirlpool, which now owns all these companies. However, it was not a full recall which would have caused all machines to be replaced. Instead, the recall, such as it was, involved an engineer visit to each affected appliance.
Despite the potential risk of fire, Whirlpool claimed that the dryers were safe to use following precautions, such as not leaving the tumble dryer on when owners are asleep, not leaving the house when the dryer is on, cleaning the lint filter after every use, and ensuring proper venting.
Whirlpool amended its advice in late February 2017 and told affected customers to unplug and not use the machine. Yet, even then, it still stopped short of a full recall.
Out of the 5 million tumble dryers affected Whirlpool assumed that many of these would now be out of use due to their age. As of May 2017, 1.5 million consumers had registered as a result of the recall and the company has carried out the necessary modifications on more than 1.3 million of these machines.
Details of how the recall will work are still to be clarified, together with information on what will happen to the millions of machines that have been “modified”, especially when there have been reports of further fires, smoke and smoke.
Whirlpool – the tumble dryer story without the spin. This report outlines what happened up until April 2018. It includes details of apparent contradictions in advice provided by Whirlpool, results of Freedom of Information Requests to Government departments and Peterborough Trading Standards, London Fire Brigade, statistics and recommendations, research and investigations. All in one place.
“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.
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.
2015 enforcement action against Ryanair
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. This law is 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.
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…..
“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 solicitors comment
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.’
This article outlined that The Retail Ombudsman 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 Independentreported 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!
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. It was asked 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 and awarded in 2017and how many went to ADR. Ryanair said “We don’t break down our data on claims to that extent.”
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.
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. They must 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 which is published by the Department of Justice is important here. It explains the conduct and steps courts would normally expect all parties to take before commencing proceedings.
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.
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. It should be easily possible to argue that you have considered ADR in this case but do not wish to take 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 CDRL lacks the credentials to provide quality ADR.
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. There is a lot background information shown here which you can use.
Westminster Business Forum seminar entitled: Next steps for consumer protection in the UK – dispute processes, enforcement and the consumer markets green paper. 15/11/18 I presented: Alternative Dispute Resolution – approval and oversight in the loosest possible sense of the words…
How approval bodies are failing to properly approve and monitor Alternative Dispute Resolution -
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.
Your rights Ryanair strikes
Further advice and help regarding flights and holiday complaints