British Airways colluded with CEDR to Frustrate Claim. Any Idea to Assist?

[A1A]

Thank you.



The passengers were father, mother, and college level daughter and son (three bookings with father and mother on one booking). They got to Heathrow Airport Terminal 5 at 111 minutes before the flight scheduled departure based on the Parking Ticket displayed time. From their testimonies they were at the check-in-Desk in sufficient time well before the check-in was closed. They also provided recorded voice message of the BA agent who affirmed that she received them and in the recorded voice she suggested reimbursement via the email provided to them by the BA Supervisor.

Would you suggest that the passenger make an application for Norwich Pharmacal Order so that the British Airways agent, who according to the written evidence of the passenger, intentionally delayed them unnecessarily to disclose her full name and to give evidence as to whether the passengers got to her in sufficient time before the check-in was closed and that the order be extended to cover the Duty Managers who had directed them to write the Customer Relations for reimbursement for the new tickets they purchased for their statements? I asked this because the CEDR Adjudicator stated they got to the Check-in-Desk four minutes before the scheduled departure.

[efpom]

Please answer the questions posed in post 14.

Norwich Pharmacal order is pointless - no 3rd party.

[A1A]

I'm sorry if my last post did not answer the post at #14.

They were travelling to Houston, USA, with British Airways transiting via London Heathrow Terminal 5. It was not a package holiday.

They stayed in London with their own personal resources. It was the same booking reference for the father and mother. The daughter had her own different booking reference. The son had his own different booking reference.

Please let me know if I answered the question.

[R0b]

I think what Efpom is trying to ascertain is (with my added questions):

- How & where were the tickets purchased? Were they purchased in the UK or elsewhere i.e. Houston? Did they use a travel agent or some other third party or did they purchase directly from BA?

- Were the tickets purchased by a single person collectively or did each family member pay for their own tickets separately using their own bank cards (or cash).

- The tickets that were purchased, were they all a single ticket going from A to B with a connecting flight at Heathrow or did the family members split their tickets? For example, ticket #1 departing from A to Heathrow then ticket #2 from Heathrow to Houston.

I generally agree with Efpom that condition 6c and 6e of BA's terms could be construed as an unfair contract term. I guess your primary argument will likely be breach of contract by BA by denying you boarding. That will likely result in BA arguing that you were late for check-in and might refer to condition 6 in their defence, at which point you argue that those conditions are an unfair contract term.

You have no control over how fast or slow check in staff are proceeding but all you need to do is arrive in good time. If the queue is moving slower than normal because of additional checks, my questions would be: (a) how many hours did check in desks open, usually its 2-3 hours before departure (b) what time did you arrive in the queue for check-in (c) how may BA staff were checking people in and was that reasonable given the size of the queue?

During the covid period and the relevant rules and regulations, it would be foreseeable that check-ins may take longer to complete because of the additional verifications the staff need to do with regards to jabs or other certifications and forms etc. If BA failed to ensure there was an adequate level of staff or open the check-in desks earlier to anticipate delays based on the checks and queue sizes then in my view, that is their fault and not the family members.

That's just a simplified argument and there may be other valid points they can add as part of the claim. There could be an argument for frustration of contract where the contract is terminated and parties put back to their respective positions if performance of the contract is impossible. I wouldn't solely rely on that argument because it's not easy to be successful on that point.

Just going back to my earlier post about address for service of documents and CPR 6.23, it does say that unless the court orders otherwise which suggests the family members could make an application to the court for documents to be served at their addresses or even a nominated address on behalf of each member but they would need to make an application at a cost of £275 provided they are claimants under a single claim, otherwise it would be that fee multiplied by the number of claims issued.

[efpom]

Ok - you have answered the questions

The check in desk at any airport is either ‘"Open"’ or “"Closed”".

You say that pax presented on time at check in desk, i.e. desk was "“Open"”.

But the check-in desk personnel took such a long time in checking pax travel docs that the check in personnel decided not to issue boarding cards, presumably because pax had run out of time to board the flight. i.e. that during the process of check in of the subject pax, the check in became “Closed”.

If you can evidence that the above is true, there is no need to establish the time you arrived at the check in desk as because check in was "“Open"” pax were in the process of boarding the aircraft, the issue of boarding cards, being a step in that process & were prevented from boarding, by the delay in issuing those boarding cards.

I assume that, in fact, the travel docs were ok, as the pax left on a later flight.

A couple more q? which may turn out to be irrelevant.t

I am assuming tickets were through tickets for point A to Houston with a stopover of more than 24 hrs in London.

But what was the date and airport the journey commenced? - Not LHR - the original departure point (point A above).

[efpom]

R0b at #19 and my posting at #20 crossed.

All of his questions are highly relevant.

My #20 was aimed at evidence which you say you have, e.g. recordings, of what happened at the check in desk.

If that evidence shows that, in fact the desk was"Open" when the pax started the process of getting the boarding cards issued, then you do not need to rely on secondary evidence such as the time the pax parked their car at LHR's car park.

[A1A]

Thank you both.

The Tickets were purchased directly from British Airways. Each of the booking reference had a complete return trip journey.

The tickets were paid for by the mother. Though the father and mother had one booking reference so one payment was made for that booking reference that contained the returned trip itenerary. The daughter, still in college, had her own booking and the mother also paid for it. The son had his own booking and the mother also paid for it.

They don't have physical tickets. The mother and father both have one electronic ticket for the trip. The daughter has one electronic ticket for the trip. The son had one electronic ticket for the trip. They were able to see at the time the whole journey itenerary from British Airways Web Portal at the time by the booking reference and surname.

Each of the booking reference journey was a returned journey ticket (round trip). It was only the ticket they purchased from Heathrow Terminal 5 after they were denied boarding pass that was a single ticket to Atlanta. So they had to wait until in the afternoon of the same day to travel to Atlanta and from Atlanta they bought another set of single trip tickets to Houston.

The single ticket from Heathrow to Atlanta was purchased by the father. British Airways did not give them a new booking reference for this single trip to Atlanta instead inserted the new trip to Atlanta in each of the "old" booking reference to Houston [I pause here to remark that maybe this created the confusion that British Airways thought the time noted on the Booking Notes for the Atlanta flight was the time they arrived for the Houston flight as you can see in the Defence provided below].

So, for emphasis, no new booking reference was given for the London to Atlanta trip. They, the four passengers, accepted the suggested flight to Atlanta because it was later the same day as they would not have to do another set of PCR tests and it was cheapest in terms of cost from all the alternative suggested by British Airways to them. One of the alternatives suggested by British Airways for them to wait in London at their own expebse to travel directly to Houston at a higher ticket price were more expensive and British Airways also said that on top of that they would have to do new PCR Tests if they waited.

The following was the defence provided by BA to the CEDR



BA Defence

All the Passengers were booked to travel on the following flight:
BA0195 / London Heathrow (LHR) to Houston (IAH) / 26DEC21 09:25 / 26DEC21 14:10 The Passengers were denied boarding from BA0195 on 26 December 2021.

THE CLAIM
The Passengers are claiming a total of £5,306.00. This is comprised of the following:
• £2,054.00 – denied boarding compensation
• £2,502.00 – replacement flights

• £300.00 – interest
• £450.00 – expenses

THE FACTS

The Passengers claim they were denied boarding from BA0195 on 26 December 2021 due to the staff at the check-in desk at London Heathrow taking too long to check the documents they were travelling with. I now refer you to notes added into the bookings by London Heathrow:


ALL RX UKWN RX ***** CUSTOMER MISSED FLT THEY WOULD TO GO ATL HAVE REPRICED TKT WHICH 0 26-Dec-21 09:21
ALL RX UKWN RX TOOK A WHILE AND AGENT HUNG UP TRIED TO CALL BACK 0 26-Dec-21 09:21

In addition to this, we raised an Airport Query with London Heathrow to try and find out exactly what happened. They did respond with the following:

From: <*****@ba.com>
Sent: 24 January 2022 16:16
To: *****
Subject: RE: Airport Queries - LHR has been reassigned

“Good afternoon
I have had a look at the PNR. To be honest we deal with similar situations daily so can’t remember exactly what was the issue. However, If the customer said the agent took too long to check docs I would have put this in the rmks. If there was to be free of charge change a CEM would have authorised this. I had probably given alternatives and then was up to the customers to make a choice. They must have agreed to the change.
Regards”

I can confirm the Passengers were not offered a change free of charge, which confirms the Passengers were denied boarding due to turning up late for the flight. In addition to this, the Passengers advised the staff at the check-in desk that they were offered a free flight, which was not the case:

CONCLUSION

Based on the above information, we are denying the claim for denied boarding compensation, expenses, interest and the cost of the replacement flights as the Passengers were late to check-in for their flight.

[efpom]

One can pick holes on BA's defence evidence at #22 but, at bottom, I think your claim stands or falls on whether you can prove that BA's assertion that you turned up late at check-in was wrong.

To do that you need evidence. See my #20.

Do you have that evidence?

[A1A]

At #20 you wrote

"But the check-in desk personnel took such a long time in checking pax travel docs that the check in personnel decided not to issue boarding cards, presumably because pax had run out of time to board the flight. i.e. that during the process of check in of the subject pax, the check in became “Closed”."

The passengers were not provided the CCTV footage. BA wrote them, when they requested that the CCTV footage would demonstrate they got to the Check-in desk in sufficient time before 8:25 hours when it was scheduled to close, that the CCTV footage would not change their decision. This was before the CEDR process.

They told me that there were three Check-in-Desks agents that attended to them on that day. The first one who made them not to board left shortly after she secured the tickets for them to Atlanta. The next one who took over went shortly for break. The third one booked them and checked them in.

Also they informed me that Supervisor of BA was aware of the matter and gave them the email address for them to use to request refunds. Furthermore that the two Dury Managers were also involved and informed them to use their respectice names when they sought for the refunds. So I don't know whether these six individuals could be summonsed to give Statement of Truth. Five of them could give Statements as to when they arrived at the Check-in-Desk (only the the third Check-in-Desk agent probably may not know).

The passengers do not know how best to put across their points in Letter before Claim as well as Particulars of Claim. They told me that they have a contact in the UK whose address could be used to issue the Court proceedings. They need generous assistance to draft the Letter before Claim as well as the Particulars of Claims. I would appreciate your assistance and anyone here in this regard.

[efpom]

Yes but see my #23. It is for the pax to prove their assertions - do they have any evidence to support their assertions?

[A1A]

efpom Please can you let me know what will count as evidence given all I have provided about the matter on this thread?

To my mind evidence could be in the form of a statement of truth. Do you agree with me on this? I mentioned this statement of truth given there was no clarity from British Airways confirming what time they believed the passengers actually arrived from the five officers (two check in officers, one check in desk supervisor, two duty managers) who knew about their case. So any way to compel them to give evidence as to when the passengers arrived and evidence from the entry system recorded time as to the capture of the COVID 19 negative test BA agent uploaded to the system for the Houston flight before they were administratively removed from the flight.

BA Defence redacted the name of the person they communicated with at Heathrow so difficult to tell if that individual was one of the five officers the passengers stated have knowledge on their case. The sixth person, the third checked-in-Desk agent probably had no knowledge as to when they got there as she finalised the checked in for their respective travel to Atlanta.

You already recommended at #16 that Norwich Pharmacal Order was pointless. Can you then suggest how to have any evidence to deal with this matter given all I had said about the matter?

Would you suggest that the CEDR be made as a Co-Defendant given that they appeared wholly unreasonable to simply ask British Airways what time they say the passengers arrived at the Check-in-Desk given my reading in the Defence they never absolutely stated the passengers arrived at 4 minutes before scheduled departure as FOUND by the CEDR Adjudicator whose decision they, CEDR, asserted cannot be reviewed by CEDR as that decision is FINAL. That the only option for the passenger is to go elsewhere if they don't agree with the Adjudicator's decision.

[efpom]

For me the problem is whether the pax have any evidence in their possession which is enough to corroborate their assertion that they arrived at the check in desk in time. Without that, all they would have are their witness statements signed and containing a statement of truth in conformance with the CPR.

They could, of course, submit a subject access request to BA, in the hope that something turns up which tends to corroborate their assertion.

[A1A]

They requested for CCTV footage within the first three weeks of their arrival in the USA. British Airways wrote them that CCTV footage would not change their decision yet failed to provide them the footage.

They again wrote this time they requested by including under the "Data Protection Regulation". British Airways waited for about three weeks to respond to them that British Airways was not the Data Controller and signposted them to London Heathrow Limited for the CCTV footage then provided them under the SAR heavily redacted Subject Access Request which included the material British Airways used for their Defence. There were no much information from those disclosed Subject Access Request as they were heavily redacted.

They immediately requested same day of receipt of the SAR to London Heathrow Limited and London Heathrow Limited responded almost immediately that the footage had been replaced with new footage as they replaced them after a month.

So would you suggest CEDR be made co-defendant given that they refused to decide fairly on the balance of probabilities that the passengers were at the Check-in-Desk before the Check-in was closed?

How would you suggest for them to have the full names of five of the six British Airways agents/staff who were involved do that they be summonsed to give statement of truth?

Can you be kind to draft how the (1) Letter before Claim be structured, and (2) Particulars of Claim be structured?

[efpom]

I will answer the 3 questions you pose, as follows:
Add CDER as defendant? - No
How to obtain the full names of BA staff involved in this matter. aimed at applying for a witness summons? Not relevant.
Draft LBA and POC? - No - have a go yourself and post those up.

I only have one question which I have asked you 3 times already and which remains unanswered which is: DO the pax possess any evidence that they turned up on time?

[A1A]

You wrote "I only have one question which I have asked you 3 times already and which remains unanswered which is: DO the pax possess any evidence that they turned up on time?"

I thought I answered your question. I provided you all the information about the matter. I stated from the beginning that the passengers provided: (1) Heathrow Terminal 5 Parking Ticket that showed they got to the Airport about 2 hours before the flight scheduled departure; (2) They provided voice record of the discussion they had with the Check-in-Desk agent (that was recorded after they were denied to travel). In the voice record it can be heard that the Check-in-Desk agent stated when they arrived at her desk, she took their PCR Tests and because they didn't not upload those information via the Verifly App it took some time.

In relation to the other matter: Are you able to throw light to me why you recommended that those actions of CEDR as a Co-defendant as well as seeking to have witness statements from those BA agents/officers not required?