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JimLawyer
JimLawyer, Solicitor
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Experience:  Senior Associate Solicitor
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I need to know if we may have a case against an airline who

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Hello, I need to know if we may have a case against an airline who sold us a flight that didn't exist/phantom flight. We were booked into one phantom flight 30 Oct, rescheduled to another phantom flight 31 Oct, then rescheduled to an oversold flight before being removed from the flight list after being checked in on 5 November.
JA: What state are you in? And is a local attorney or other consumer protection advocate helping with this?
Customer: There's more to the situation but this is the first point.
JA: What steps have you taken so far?
Customer: I've submitted the complaint on the company website detailing what happened & individual issues and demanded cash refunds for our family of 3 plus 600 compensation. It was booked through an agency - they've just told us we need to pursue it through the agency.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: We are mixed nationality - Chinese, British on respective passports plus 3yo child on Chinese travel permit. On 5 Nov the Chinese embassy issued changes but it should only possibly affected me as a non-chinese but our whole family were denied travel.

Hi, this is Jim, thank you for the question - I will do my best to resolve this quickly for you.

Sorry to hear of the issue. If you booked by credit card then you can make a claim - you can contact the card provider and ask for a refund under S.75 of the Consumer Credit Act 1974 - as they are jointly liable if you do not get the service you paid for. You can claim a full refund even if you only paid for part of the trip with the credit card as long as £100 or more was spent.

If you did not book with a credit card (or you did and the card company refuses to reimburse) then you should consider a Small Claim, for breach of your consumer rights and breach of contract.

You should send the company a letter before action to demand a refund within 14 days, failing which you will issue court proceedings.

The attached letter is generic and needs to be tailored (and quote the above breach). The letter should be sent by post and email. I presume the agency is based in the UK?.

Assuming they do not respond or they do and refuse to pay, you need to register at www.moneyclaim.gov.uk so that you are ready to issue the claim in the event they dispute the claim and do not pay you. The website is very user-friendly and you would not need a lawyer to use the money claim site. Claims with a value of under £10,000 are classed as a "small claim", so legal costs are not recoverable and the matter may be dealt with on paper by a Judge, not at a hearing. A hearing may be necessary if the court thinks that oral evidence is required to dispose of the case.

You would claim the sum for the loss, the court issue fee and court interest which is 8% calculated on a daily rate from the date of loss to date of court judgment. The site allows you to calculate the interest and add it to the claim.

If you are on a low income or have low savings (or in receipt of benefits), you can ask the court for a fee remission so you do not have to pay the court issue fee.

If you are eligible, let me know as you cannot use the online money claims site – you have to use the paper method, which is an N1 claim form sent to the County Court Money Claims Centre (I have a copy, let me know if you would like one).

If you win then once you have the CCJ from the court the defendant has 14 days to pay in full. If they do not then it gets registered with the credit agencies after 30 days. You can also enforce the CCJ with the county court bailiffs or transfer the debt to the High Court for a small additional fee assuming the total amount owed is at least £600 and you can use the high court enforcement officers who have greater powers than county court bailiffs. The transfer fee is added on to the debt and payable by the defendant.

There are other enforcement methods which I can help with, including bank account freeze, charging order on their property (and then apply to force a sale), application to wind up the company if £750 or more is owed (if suing a limited company), apply to summons them to court for questioning, all of which can ensure you are actually repaid the money.

You may find they just pay you after receiving the letter before action – hopefully they will want to avoid litigation.

I hope this helps and answers the question which is easy to understand - please feel free to ask me anything else. I will reply as soon as I can to help with any further queries.

Thanks for using our services and have a good day,
Jim

Customer: replied 21 days ago.
The agency was a Chinese agency. We paid using online payment (we chat pay I believe) not credit card. The first query we have is, is it fraudulent to sell us a flight that never existed? BA resumed flights to China on specific days - Thursday & Saturdays only. The flight of 30 & 31 October were Friday and Saturday. These flights never existed. Until 5 Nov there were only ever Thursday and Saturday flights from LHR to PVG.
Customer: replied 21 days ago.
far we have submitted the complaint on BA's website. They've replied saying we should ask the Chinese agency to pursue our request for refund. We would prefer to do it ourselves. Is this our right or must we use the agency?

Hi there, if the agency sold you a non-existent flight then your contract is with the agency and it is they who would be liable here. It would be fraudulent to sell something which doesn't exist, and criminal law may come in to this - as they obtained a pecuniary advantage knowing that you would not have a flight.

Customer: replied 21 days ago.
But BA themselves advertised daily flights at that time but we happened to use the agency when booking.

Thanks, ***** ***** advertised it then they would also be liable in my view. You would have a potential claim against both BA and the agency. My view is they are jointly and severally liable. So you could simply sue BA if you wanted to.

Customer: replied 21 days ago.
Thanks for that confirmation.The next issue complicating things is that we are a mixed nationality family & would have been traveling on different travel documents, myself as a British citizen on UK passport, my husband is Chinese on a Chinese passport, our son is British with UK Passport but on a Chinese Travel Permit. We were checked into the flight on 5the at the airport but then put in a queue for seat allocation as it was oversold. At that point the staff said the Chinese Embassy had announced minutes before that non-chinese would not be permitted to fly as non-chinese were being denied entry to China. (not accurate - non-Chinese on certain visas were being denied entry). We were removed from the queue and taken off the flight list as an entire family & told we'd have no refund, no compensation, no reschedul - my visa was not checked and the fact that my husband and son are classed as Chinese citizens was not considered. I feel we at least are due cash refunds for my husband and son (I don't want a BA voucher for my refund and want cash under the circumstances too) - I also believe that they at least (if not all of us) should receive 600 pounds compensation each under the EU law for not being admitted to our flight at zero notice for a long distance flight. What is your view on this please?

Hi, yes, the European Commission recently announced that vouchers are not acceptable that refunds must be given in these situations. You can ask for the further compensation on top for the issue with the flight too - I cannot see a court arguing over that. So I agree with your proposal.

Customer: replied 21 days ago.
Must we pursue this via the agency or can we continue our complaint directly with BA?

I would pursue it directly with BA since they are the airline who you have a contract with and who would also pay compensation too.

Customer: replied 21 days ago.
Thank you for answering my questions so far. If we have further questions will my query come back to yourself or another solicitor?

Yes, no problem. If you reply to this thread then I will be available to answer. If you post a new question to the main site, another lawyer may pick it up to help you

Customer: replied 21 days ago.
Great. Thank you. I will respond to BA this afternoon considering your advice & informing them of our obtained legal advice & inform them of our intention to go to small claims court if they do not agree.

No problem, thanks - you do have strong consumer rights against them.
If you have to issue a small claim, ensure you name them properly, so it would be British Airways Plc, and their address: Waterside, PO Box 365, Harmondsworth, UB7 0GB

Customer: replied 21 days ago.
Should we simply write to that address or continue using BA's online complaints procedure at this point?

For the time being I would use their online complaints procedure. Only if you have to issue a small claim you would first send a letter before action to their address - if they still refuse to pay you can then issue a claim and name them as the defendant in your claim (the money claim online site will ask you for BA's details, which I have given to you now)

Customer: replied 21 days ago.
ok. Thank you for the clear steps to progress on this.

My pleasure

Customer: replied 17 days ago.
Yesterday was the deadline we gave BA to reply with a satisfactory answer after we asked for a full refund plus compensation - we've heard nothing from them whatsoever. I understand that the caa don't get involved until 8 weeks have passed. Is there anything I ought to do between now & 8 weeks have passed before I involve the caa?

Hi there, it could be BA are very busy with existing complaints so I would recommend you give them a bit more time. There is nothing else you can do in the meantime unfortunately. The 8 weeks is a normal timeframe in this situation.

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