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Alex J.
Alex J., Solicitor
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Experience:  Solicitors 2 years plus PQE
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EC Regulation 261/2004 relates to, inter alia, compensation

Resolved Question:

EC Regulation 261/2004 relates to, inter alia, compensation payable to passengers who are delayed or downgraded. The Regulations extend to include passengers having tickets issued under a frequent flyer program (note it does not say purchased).
The compensation for downgrading is stated to be '75% of the price of the ticket' the explanatory notes go further and state '75% of the published fare in the class reserved'
The Regulation does nor refer to compensation payable if tickets were issued under a frequent flyer program.
Would a court be required to award cash compensation (its for the legislators to redraft 261/2004 if cash is not to be awarded) in accordance with the Regulation? Does it have the authority to award different compensation instead of cash?
Submitted: 2 years ago.
Category: Law
Expert:  Alex J. replied 2 years ago.
Hi,
Thank you for your question and welcome.
My name is ***** ***** I will assist you.
Can you just confirm - have the authority refused to offer cash compensation?
Kind regards
AJ
Customer: replied 2 years ago.

Yes

Customer: replied 2 years ago.

yes 75% of loyalty points

Expert:  Alex J. replied 2 years ago.
Hi,
Thank you.
When you make a money claim it is up to you to tell the Court what remedy you are looking for and what power the court has to award it. The court will then decide on the facts and the law if they can award it. Normally it something like money or an injunction.
The Compensation regulations do require a cash payment (but the airlines can offer but not insist on an alternative). If they wont pay you a cash payment you can consider commencing a county court claim against them https://www.moneyclaim.gov.uk/web/mcol/welcome
Is it an airlines in the UK?
Kind regards
AJ
Customer: replied 2 years ago.

Yes British Airways. They have offered 75% of the loyalty points used to secured a ticket when the Regulations state the compensation should be 75% of the price of the ticket ( or as mentioned 'the published fare')

I need to be sure in making a cash claim that a court will strictly apply the Regulations i.e. it will consider '75% of the price of the ticket (published fare)' to be cash although the ticket was issued by means of points?

Are you aware or similar case law where a consumer has obtained an item other than by making a cash payment and, for example, the item is defective has received a cash refund of the published price?

Expert:  Alex J. replied 2 years ago.
Hi,
Thank you.
There is no case law on this specific legislation.
Any cases have been brought in the county court and the decisions of the county court are not necessarily followed as precedent.
If you were bringing a claim it would be up to you to prove the market value of the ticket relative to how close you booked it.
Did you actually travel on the flight when you were downgraded?
Kind regards
AJ
Customer: replied 2 years ago.

Yes my wife and I were downgraded two classes from Club World to Economy.

My argument, if compensation is not paid in cash is that my wife and I should receive compensation in points using the same multiple as a passenger who paid cash.

A passenger paying cash would receive compensation of 75% of a Club Class ticket this is 3.42 times more than the price of an Economy ticket. Using this argument my wife and I would receive 3.42 times the points required to secure an Economy seat i.e. 25,000 x 3.42 = 85,500 each.

Is this reasonable?

Expert:  Alex J. replied 2 years ago.
Hi,
Thank you.
So to be clear are they saying they only have to compensate you on the value of the economy ticket? Not the ticket you purchased.
Kind regards
AJ
Customer: replied 2 years ago.

Not really they are offering to refund 75% of the points required to purchase a Club Class ticket (50,000 points) i.e a refund of 37,500 points

This leave 25% x 50,000 = 12,500 points. An Economy ticket requires 25,000 points

My argument is that a cash customer would receive compensation worth 3.42 times the price of an Economy Ticket whereas I will receive less points that the number required to secure an Economy ticket.

To be equitable I consider I should receive 3.42 times the points required to secure an Economy ticket i.e. 3.42 x 25,000 = 85,500 not 12,500.

Expert:  Alex J. replied 2 years ago.
Hi,
Thank you.
I think to really understand this I need to check the terms and conditions that you sign up to when booking through BA with points.
Are these Avios points you have used?
Kind regards
AJ
Customer: replied 2 years ago.

rWhilst I very much appreciate your advice but I would not wish to burden you with having to review BA's terms and conditions.

My principle question is this. Given the EC Regulations state that compensation for downgrading is '75% of the price of the ticket' (the explanatory notes go further refering to 'the published price of the ticket' does a court have the discretion to amend this to '75% of the loyalty points used to secure a ticket' or ' 75% of the market value of the loyalty points used to secure a ticket'?

Could the published price of a ticket be considered to be cash or loyalty points?

Seems to me that a court should apply legislation as written, if the legislators intended compensation to be given in loyalty points surely they should have said so?

Expert:  Alex J. replied 2 years ago.
Hi,
Thank you.
Yes the legislators intentions are relevant here, but even when dealing with consumers companies are allowed to use disclaimers.
Especially when booking with a points system I would not be surprised if BA have in fact included a disclaimer regarding this.
To be honest if you are going to pursue this on the basis that they should refund you more points I would try and claim that they had no intention of honoring the ticket you booked using your points - and are unfairly forcing you to use points on product you had not booked. I would then save the hassle of making a county court and just make a complaint to Trading Standards - www.tradingstandards.gov.uk/
Personally in the past I was once on a flight (BA) where the facilities failed. I wrote to Willie Walsh directly and had much more success in obtaining compensation - you can get his correspondence address at Companies House.
Kind regards
AJ
Alex J., Solicitor
Category: Law
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Experience: Solicitors 2 years plus PQE
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