"These terms are governed by the laws of England an Wales"

[Drew32]

Hi all.

I will go into details about why I am asking the following shortly. Just need a quick response to this specific thing.

T and C for an airline read:

1. "these Terms and all services provided by us to you pursuant to these Terms, including in respect of yourself and/or your Baggage, shall be governed by the laws of England and Wales"

And also reads:

"We shall not be liable for indirect or consequential damages of any nature whatsoever and howsoever arising. Unless expressly provided in these Terms, nothing shall waive any exclusion or limitation of
our liability under the Convention or other Applicable Law and to the extent consistent with the Convention, in no event will our obligations exceed any liability specified in these Terms."

I am confused. Please advise. The UK law of tort means a company can be held responsible for consequential loss, at the discretion of the Court, is my understanding, so the two terms above seem to contradict each other.

My read of the above is that the first term overrides the second term, as English and Welsh law obviously dictates that the company cannot rule themselves out of being held to said law.

Am I wrong?

[efpom]

The governing law of the contract - the "Applicable Law" (tort is not in play) is England & Wales.

If this is a contract of carriage by air on an international flight, the contract terms incorporates the Montreal Convention, to which the UK is a signatory.

There is no conflict of laws here, and to answer your question - you are wrong.

[Drew32]

The governing law of the contract - the "Applicable Law" (tort is not in play) is England & Wales.

If this is a contract of carriage by air on an international flight, the contract terms incorporates the Montreal Convention, to which the UK is a signatory.

There is no conflict of laws here, and to answer your question - you are wrong.

If tort was in play?

[R0b]

The "Applicable Law" is not necessarily England and Wales, that's just the law that governs the contract. It would be helpful to know which airline you are talking about and also where you reside because the "Applicable Law" may be defined along the lines of where the services are provided and/or where the individual resides.

Consequential losses under English law are recoverable, but they can also be excluded and it is very common to do that. Unless something in English law (or other applicable) confirms that consequential losses can be recovered (which I would think is exceptionally rare) then you would have to argue that contractual exclusion is unfair.

I agree with Efpom, there is no conflict of laws based on what you've described.

[efpom]

What tortuous liability do you think is in play here?

[Drew32]

Here is the case, was going to post elsewhere, but might as well post here:

Hoping for some feedback. I feel I have a good grasp of this situation, but could do with some qualified legal advice.

At the start of Covid, I had a voucher from an airline to redeem against a future booking. It states on the voucher that the voucher “can be redeemed against the cost of a future booking by calling us.” That is it. No other mention of any further calls being necessary.

I live abroad, and wished to make sure that the booking I made could be changed or cancelled online after making the booking, as costs from my current country to the UK are about £2 a minute.

As it happens, I was sent an email from the airline, because of Covid, to promise customers that all new and future bookings with them could be changed and/or cancelled online. Basically because of the media reporting on hold times of many hours.

Also, I found from the airlines own T & C that they advise customers that their bookings can be managed online. There is no mention in either these terms or the email they sent me that you might have to call afterwards. So 1 month after the email making said promise was sent, I called, at much expense, and used the voucher to make a booking, between London and Spain, return.

A few months later, sure enough, I needed to change dates.

I could not manage this booking online, Kept getting error messages.

Spent a ridiculous amount of money calling the airline, kept getting recorded messages, after two minutes, to tell me they were busy and call back again. Emails and webform messages were all ignored.

When I finally got through, and moaned about the call costs, I was told that I actually could change it online. I felt like an idiot. I ended the call.

This turned out to be bad information. I have since been told that the booking, as it was made by an agent when I called to use my voucher, could only be changed by an agent, by calling. So the opposite of the promises made i.e. can manage online.

I have a system note from the airline that proves they told me I could change it online in the above call. This is the result of a DPA request.

I made many more calls, on hold, not getting through to anyone. I sent Tweets and DM’s and they initially responded to ask for my information, and then they ignored me, a dozen further messages received no response.

When I finally got through to the airline again, I recorded the call, to ensure that I had proof of the warning I gave them that I was spending £2 a minute and expected to be compensated. By this point the outgoing flight had already flown. The agent in this call tells me the returning flight, two weeks from the date of the call, had now been cancelled, confirms that I was not emailed to be notified of such, and confirms that my not flying the outgoing flight did not affect my ability to use the returning flight. He confirms that I could have arrived at the airport, only to discover the flight was not running.

In this call, he offers me a refund in the form of the difference in cash paid, and the voucher reinstated. He told me he could not compensate my call costs, and I told him I would be forced to litigate.

We ended the call amicably, after I accepted the refund. I also tell him I have to make sure I still have the card I originally used, and I double check this during the call, before confirming he can refund.

Okay…

Two weeks later, with no refund, and the card now closed, I called again. In the first call, I am told that the agent did not make the refund as I ended the call prematurely (I have those call notes, and the call recording, proving this is a blatant lie – no attempt to email or call me either, following the lie, he just ended the case/call note, without doing anything). I told the agent in the first call that my original payment card was now cancelled, and to wait for new card details. She then hung up on me.

Second call, after being on hold 20 minutes, I get through to an agent who told me they could not help me as the booking was open elsewhere.

Third call, I am told the refund was made to the original card. I was furious. I was told I had to contact my UK bank to get a letter proving I had closed the account, in order to get the money part of my refund.

Of importance here, worth mentioning in case you missed it - the refund was done whilst I was not on the phone. So why didn’t the man who lied a few weeks before do it when I was not on the phone?

Okay, so basically I pursued the airline, and I intend to go into what happened next, shortly…

But I would be grateful, before this, if anyone who has time to comment could advise me what they think the legal basis of my claim would be?

[Drew32]

As you can see from the above, call costs would certainly fall under the heading of both consequential losses, and also forseeable costs that I can claim back because of the tort i.e. negligent misrepresentation.

I think in this case that applicable law overrides the clause that states they cannot be held liable for consequential loss. Call costs from broad are obviously going to be a factor in their thinking, as they are an airline.

[efpom]

If my understanding is correct, you booked an international flight, the flight did not occur, the airline offered you a voucher in compensation, redeemable for a future flight with the same airline. You attempted to redeem that, and were put to time and expense in trying to do so.

You wish to make a claim for that against the airline.

That would be a claim in contract.

[Drew32]

efpom the claim is essentially that I was enticed to enter into contract by negligent misrepresentation i.e. changes can be made online.

Turned out to be false, and my economic losses were the call costs from abroad, further compounded by other negligent misrepresentations, i.e. the agent I first spoke to telling me I was wrong and could make changes online - which was in fact false, and led to my ending that call, then needing to make even more calls.

[R0b]

Long and short is you could have a claim both in contract and tort but you can't recover damages for both as that would be a double recovery. Of course you can plead both cases to maximise the chances of winning in the event one argument fails.

I think what you are alluding to from a tort perspective is reliance on section 2(1) of the Misrepresentation Act 1967. I won't go into detail as you can do some research into that but the measure of damages the court will assess is the same a fraudulent misrepresentation. That means as long as you satisfy the criteria for misrepresentation, you are entitled to claim all losses flowing from the misrepresentation regardless of whether they were foreseeable or anticipated at the time the contract was entered into which would include consequential losses.

There could be an argument for recovering the cost of your calls having relied on the fact that you could manage this all online and assuming there was no qualification to that in the email or discussion. Claims under the Misrep Act are more favourable because of the damages you could claim.

There is also the question that by agreeing a voucher, whether that falls under the same existing terms you agreed for your initial purchase or does it constitute a brand new agreement in which case there may be no terms at all... something to consider.

[Drew32]

thank you R0b

This is why this is so confusing. I have a legit claim, yet the Defendant states that this term insulates them from Tort (and breach of contract):

""We shall not be liable for indirect or consequential damages of any nature whatsoever and howsoever arising. Unless expressly provided in these Terms, nothing shall waive any exclusion or limitation of
our liability under the Convention or other Applicable Law and to the extent consistent with the Convention, in no event will our obligations exceed any liability specified in these Terms."

[R0b]

It is a matter of interpretation and that clause could be interpreted in different ways. For example, the clause excluding liability for consequential losses is qualified by the sentence after it which says nothing in the contract will exclude or limit their liability under applicable law. Since the Misrep Act is legislation, does that mean their liability is or isn't excluded? Who knows, only a judge could give you the answer.

I think also what you need to bear in mind is that many losses categorised as a consequential loss can also be a direct loss. So just because consequential losses are excluded doesn't mean you can't claim under a direct loss.

Have you put this to the airline and if so, what was their response? Are you at a stage of issuing legal proceedings or do you need to send a letter before action?

[Drew32]

Lol I just took the airline to Court.

The Judge specifically agreed with the Defendant that they were protected by this clause.

I am appealing as it cannot be right that a clause in a contract protects them from common law.

Should I post the exact wording from the Judgement?

[Drew32]

Here it is:

[Drew32]

As you can see, it is odd. It is as if the Judge purposely fudged the understanding/interpretation of common law principles of tort in order to cleanly terminate my claim.