Consumer Rights Act 2015

This thread is to give information, advice and share experiences on deploying the Consumer Rights Act (CRA or CRA15) in complaints against British Airways. It's not really an opinion thread, nor is this the best thread to have a go at "compensation culture", there are better places for that. The main purpose is non-judgemental advice.

The Consumer Rights Act (CRA) was an important piece of legislation implemented in 2015, improving a series of other pieces of legislation relating to consumer rights in the UK. Originally aviation was excluded from the CRA but after a consultation the government implemented it for aviation from 1 October 2016.

Caveat
I am not a lawyer. Moreover this is new legislation with little casework associated with it, so there many aspects of the CRA are unclear / uncertain at this stage. More reports in this thread (or via PM) would be most welcome, in order to clarify the legislation's position in respect of air travel.

Key benefits
- Service to be provided with reasonable care and skill
This can interpreted as the words suggest in plain English and is the most important phrase in the legislation. One way to look at this is whether another airline is/was able to provide a similar service with similar expected outcome.

- Information on the service to be binding
If BA provides information on its products and services, e.g. via a website, and the consumer uses this information to make a decision about flying with BA, this information becomes binding on the airline.

- Consumers to enforces terms about services
If the service provided by BA doesn't conform to the contract made with the airline then consumers have the two remedies mentioned below.

- Requirement for contracts to be fair and proportionate
Companies are not allowed to rely on contracts which are unfair or disproportionate. The legislation outlines examples of this, such as obliging the consumer to fulfil all of the consumer's obligations where BA does not perform the airline's obligations. For example: BA delayed an outbound service but did not allow the consumer to change the inbound to maintain the length of their holiday.

How to use the CRA

[If some of the terms used here are unclear it's best to look at the main EC261 thread in the forum's Dashboard]

- As part of a claim to CEDR
At this stage I'm not sure this is going to work: CEDR mainly works around EC261 and sometime the MC. Those with complaints don't need to identify specific legislations, CEDR sorts that out on behalf of both sides. I haven't seen any clear evidence of CEDR using the CRA, however there is a media report of a CEDR claim being settled by BA for consequential losses.

- Money Claim Online (MCOL) / Small Claims court process
This appears to be the best way to enforce the provisions of the CRA. Unlike the CEDR, you do need to be specific about using the CRA, either on its own or in conjunction with EC261 and/or the MC.

- Section 75 of the Consumer Credit Act
A section 75 claim can also be made against a UK credit card if the total transaction was over �100.

- Other options
Other options include asking for help from the Trading Standards team at your local council. It's unlikely the Civil Aviation Authority would help unless CEDR had been exhausted and the CAA was interested in using the case to test the legal reception to the CRA.

Example of potential areas where the CRA could help
- Extra car parking costs due to delays, due to BA not exercising reasonable care and/or skill
The Montr�al Convention limits the liability for delays but doesn't have many other constraints, other than airlines are not responsible where it "took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures". In the past airlines have fought off claims on the basis that they did take "all measures" - EC261 has pushed that bar quite high in its field, and I imagine the CRA would apply to a similar threshold. Moreover consequential losses are not part of EC261 but neither the MC nor the CRA excluded them so my view is that this is now in scope. One view would be that the CRA would not be necessary here, a claim could be made under the MC alone, but if for example another airline could have got the passenger back home without resulting in extra charges, then the care/skill argument can be deployed.

- Cancelled tickets due to no show on one leg (perhaps!)
See case law below involving Mr. Dove. The contractural issues on ticketing is the one area of the CRA that the CAA has highlighted.

- Downgrades where 2-4-1 vouchers have not been replaced
My argument here is that this is not in scope for MC if this is a plain oversale (so the downgrade wasn't caused by a defective seat) since the cause has nothing to do with embarking the aircraft: if an airlines sells too many seats then that's not aircraft operations, there is nothing wrong with the aircraft, but a commercial decision to have too many passengers for the available seats. The CRA emphasises repeat performance, so in my view a 2-4-1, or an upgrade on another service, would be suitable remedies here. If BA doesn't agree to do this then this gives grounds for a partial refund.

- Additional costs paid due to cancelled flights
A flight is cancelled and you are rebooked to another service, but this causes you additional costs. Unless the cancellation was completely unavoidable (bad weather for example), I can't see how BA could argue its way out of its responsibilities. Not least because clause 50 also says that consumers need to expressly agree to any changes to contracts.

- EC261 claim resulting in an insufficient remedy
You are delayed returning home and BA's telephone lines are jammed / closed or the contact centre is unable to offer a non BA alternative. You are able to get an alternative flight, so you book your own replacement service. You successfully claim for some expenses but the EC261 compensation offered is insufficient. For example BA caps a taxi cost at �50. Had BA offered sufficient care/skill they would have avoided the consequences of you being left out of pocket. The CRA seems well suited for this scenario.

- Not getting ground services (e.g. lounges) as described.
If a lounge is indicated as part of the service and you don't get it (e.g. BA closes it or changes the lounge supplier) then that seems a good case for a partial refund. This may well also apply if there has been some basic failure of service at an airport.


Not claimable under CRA
- (Probably) areas covered directly by the Montr�al Convention (e.g. baggage losses beyond MC's limits).
MC has clear primacy in some key areas such as baggage. If you try to use CRA to get more then I doubt it will work, particularly if you are seeking compensation: BA already places for necessary replacement items against receipts for baggage delayed away from home.

- Loss of enjoyment claims relating to onboard service
My view is that there is way too much case law in this area over multiple courts, and pretty much all of it says that loss of enjoyment on board an aircraft is not claimable in its own right. However that doesn't stop someone from articulating this via other lines of argument (e.g. had you known your CW seat was not going to recline, you would have paid for a WTP seat instead, and therefore you want a partial refund. See also next section).

- Psychiatric damage not causing bodily injury whilst on board
MC specifies "bodily injury" and there is considerable case law that says that psychiatric damage isn't included. However some mental health conditions are caused or demonstrated after bodily injury to the brain (e.g. PTSD) so this can be in scope. There is significant case law of this area.

- Punitive damages
This isn't part of CRA at all, or MC, or largely EC261. When it comes to courts in the UK you would be advised to keep to realistic claims. By all means take a broad view of this, a judge would reduce the findings if necessary but can't increase your claim, but the start point needs to be reasonable.

Uncertain areas (due to interplay with Montr�al Convention)
- Seats defective and therefore not reclining as advertised
Generally onboard services are covered by the MC, so if a seat goes defective after the aircraft has departed then this doesn't look good from the consumer's perspective. However I think there are arguable cases here in some circumstances: if the seat was defective before boarding but wasn't fixed before departure, then I think the "care and skill" argument is applicable. Furthermore there is a view that the CRA is merely a refinement of MC (see next post), and BA still need to exercise care and skill to fix problems like this, even after take off. One specific area that seems certain, however, is that you cannot claim for loss of enjoyment, you have to look at other lines of approach.

- Not getting advertised service on board due to staff shortage.
On the face of it, this isn't covered since this seems to be within scope for the MC, and the MC was designed to prevent local legislation from creating claims for onboard issues. However this probably needs to be tested more thoroughly in the senior courts.

- Defective IFE system
BA's website indicates an entertainment package which may be partly responsible for a consumer buying a ticket. If it fails on board, is that covered by the MC (no remedy in other words) or the CRA? If the CRA is admitted, then the partial refund would perhaps be quite modest, but it may be more than offered by BA's Customer Relations. However if BA CR did offer an amount and the consumer thought it insufficient under the terms of the CRA, then I can see this being arguable in court. I can see any claim here would be quite modest, however.

Remedies
- Repeat performance
This is the focus of the legislation: if a service is not being done with reasonable care/skill, the consumer is entitled to ask for a repetition of the service. Now for flights this may or may not be viable, but this may give scope to request the reinstatement of a 2-4-1 voucher, as an example. Generally speaking, if a repeat performance is possible, this should be the focus of remediation, however the legislation does recognise in many cases this will be impossible. Note that the clear sentiment of this area is that the consumer should ask the airline to enable repeat performance, and the airline should oblige - this does not necessarily need to require legal processes to enforce this remedy, which should be done quickly and without inconvenience to the consumer.

- Price reduction or refund
If repeat performance isn't possible or if BA refuses to offer it, then the consumer has the right to a partial or full refund as a remedy under the CRA. It should be offered in the same means of payment as the original transaction unless the consumer expressly agrees to an alternative. Again this may be a good facility for 2-4-1 related issues.


Coverage
- The Consumer Rights Act covers purchases made in the United Kingdom. Clearly if you are a UK resident (of any nationality, and including temporary residents) who bought a ticket in the UK, then you can use the CRA. If you are a US citizen resident in the USA, who bought the tickets when in the USA, then I doubt you will be able to enforce the CRA in the USA. And then there are all sorts of other scenarios in between. Claims can only be made for flights after 1 October 2016.

Effect on Montr�al Convention
A brief summary here, it's a really big topic which isn't easy to cover. I will put a longer version in the next post.

We don't know for certain how the courts will interplay the CRA and the Montr�al Convention (MC or Convention). The Department for Transport in their consultation review said they believed that the CRA would not replace the MC, but work alongside it, and therefore not have much impact on airlines. This view, however, is not necessarily a correct interpretation of the law. MC provides exclusive remedies for
- cargo,
- baggage,
- personal injury,
- death and
- delays
when travelling on BA and almost all airlines. It gives limits to liability, and covers the period from embarkation to disembarkation. What we know for sure is that the CRA can work alongside MC, what we don't yet know is whether it will help when there is a gap in MC's coverage. Furthermore there have been a number of court cases where it has been stressed that you can' t use "deft pleading" to get around the intent of the MC, which is to provide a single point of reference for airlines, such that they aren't dragged into legal battles over hundreds of jurisdictions. There are some senior court rulings that essentially say "if you want a remedy for onboard mishaps, you must find it inside the MC".

However take consequential losses: your service is cancelled, you are late back to your car, your car parking fee has sharply increased due to the delay. It's the airline's fault, so you are entitled to EC261 Article 7 compensation for that delay (125 to 600€, depending on various factors), but not consequential losses (no cover is mentioned in EC261). MC doesn't exclude consequential losses, but it does cap them at SDR 4694 (approximately �5000). The CRA could be used to claim for these losses if BA didn't exercise "reasonable care and skill" to avoid the delay.

What we could certainly do with is more case law to find out how this will play out.

Effect on EC261
EC261 has an interesting place here, since it has been deemed to occupy a different stage in the system compared to the Montr�al Convention - so it covers aspects not connection with embarkation (e.g. Involuntary Denied Boarding) and for delays it gives a more granular compensation than the MC. Since there was a delay in implementing the CRA to check on its applicability to aviation, I think there is an argument for saying that like EC261, the CRA is occupying vacant territory. To use the legal precedents, IATA v Department for Transport applies, not Sidhu v British Airways. Either way, the CRA can potentially be used, where EC261 applies, to extract more consumer protection than EC261 alone would cover. Consequential losses have been mentioned already, but also for example for partial refunds on tickets where a cancelled ticket has led to additional costs. One big one would be downgrades: EC261 provides cover for downgrade reimbursement, but not compensation, and we know BA don't automatically provides replacement for 2-4-1 vouchers: on the face of it, this is both an example of insufficient care and skill, as well as a disproportionate contract.....

Case law
We have remarkably little, one reason for this thread is to find out cases and share experiences.

1) One case we do know about, albeit with Iberia, considered Mr Dove, who unfortunately for the airline concerned is a barrister. He held return tickets from London to Madrid, for some reason turned up late for the LGW-MAD sector, the loss of which he accepted; but Mr Dove was dismayed when Iberia automatically cancelled his return flight from Madrid back to London. He successfully argued at Small Claims court level (so not setting precedent) that this cancellation was a disproportionate contract, bearing in mind other airlines (e.g. easyJet, Ryanair) don't do this.

2) Any other cases anyone?

Links
Consumer Rights Act 2015 wording
Statutory Instrument implementing this for aviation [for reference, not much detail]
Montr�al Convention (PDF)
CAA link (unfair contracts area only).


Media and legal stories
Guardian article on CRA and aviation though essentially speculative.
Kennedys Law blog post - again mainly speculative
Which? Consumer Rights article

Montr�al Convention wording on delays (in its entirety)

The current limit to liability for delays is SDR 4694. For baggage it is SDR 1131. If you enter "Google Currency Converter" into Google then you should get a conversion table that include Special Drawing Rights as a currency.
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Montr�al and the CRA - further discussion
This section is a stab at trying to illustrate the complexities of the Montr�al Convention (MC) in respect of consumer legislation. It's not essential to plough through this if you are interested in making a claim under the CRA but it does provide some more context, particularly if the complaint centres on service on board the aircraft.

The MC was adopted in 1999 and was a development from the previous Warsaw Convention, both were conventions that tried to set an international framework of rules and responsibilities for those involve in air travel. In particular it established some limits to liability, to enable airlines to operate in multiple jurisdictions.

The courts in the UK, USA, Canada and elsewhere have generally ascribed significant primacy to the MC over domestic law. In the UK the most significant case was Sidhu v British Airways, which involved passengers detained in Kuwait during the Iraqi invasion of that country, while on BA149 scheduled for LHR-KWI-MAA-KUL. Full details in Wikipedia here. Some passengers were detained by the Iraqi r�gime for over 4 months, often in appalling conditions. The Sidhu family attempted but failed to sue British Airways for damages for their detention. The House of Lords, then the UK's most senior court, held that there could be no exceptions to the then Warsaw Convention, any remedy would have to found in that Convention, there was no coverage for this sort of detention, hence the Sidhus were unsuccessful. That landmark decision has been upheld in many similar cases all over the world, and essentially makes the MC foremost legislation for events that happen under the Conventions' scope. Full judgement text here. Here is a typical quote from the judgement: "The Convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas with which it deals - and the liability of the carrier is one of them - the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law".

However EC261 was enacted in 2006, which did provide a range of protections for air travel. IATA brought a case in the UK against the Department for Transport, seeking clarification as to whether this European Community Regulation was compatible with the MC. In IATA v Department for Transport, the CJEU held that EC261 was still valid since it was deemed to be consistent with the MC. Full judgement here.

Another case worth mentioning is Stott versus Thomas Cook, the Supreme Court ruling is here. In this case there was a clear breach of domestic disability legislation, which was enacted after both the MC and EC261, but with enormous regret the court could not award damages to Mr. Stott since the MC did not cover the fairly horrible circumstances of the flight from Zante to the UK. This is perhaps an extreme case, there are actually many dozens of other examples of case law that can be identified, here I'm just giving a few examples.

Now to some extent, as an outsider, this sounds all rather convenient for the airlines, but it does give us some clues as to how the CRA can work here:
- Sidhu clearly indicates that some contractural matters relating to aviation are not covered by the MC
- IATA and Sidhu together appears to suggest that where MC clearly has competence then your best approach is to argue that the MC and CRA are working together.

One difference between the CRA and the disability legislation was that in the case of the CRA there was a specific consultation on whether aviation should be covered by the CRA, and indeed implementation of the CRA in aviation was deferred by a year during this consultation. UK airlines, via their trade association objected on the grounds that it would be onerous on them in the context of the MC. The UK government decided to implement anyway. In their response to the consultation (to be found here in pdf format), the Department for Transport said "Given that most air routes are governed by one of the Carriage by Air Conventions, the scope for additional claims under the CRA will in practice be limited in the aviation sector. The Government has therefore concluded that the balance lies in favour of bringing the CRA (including section 53) into force in full." Section 53 says that the CRA is "subject to" any other enactments, presumably meaning the MC in this context. To my mind this must mean that the CRA has some power in respect of airline travel, clearly there is a debate to had as to its extent.

 

Now if you have managed to get this far, you will perhaps appreciate there is a tentative and largely untested feel to the information provided here. There isn't that much online about the Consumer Rights Act 2015 and aviation, but I guess we may as well start somewhere.

Any thoughts of comments - to what could perhaps be regarded as a Beta thread at this stage - would be welcome, particularly from any lawyers with insights into this area.

 

Thank you for this very useful pr�cis. I am assuming that the CRA applies to any purchase in the UK even from an overseas entity.

So if I buy a flight ticket in the UK from American Airlines, Qatar Airways, or Norwegian Air Shuttle (for example), and they fail to perform the service in some way covered by the CRA, then my rights are the same as if I bought the ticket from British Airways or Jet2 (for example)?

(Has this been throughly tested in court?)

 

Good !!!

 

I believe it does apply to UK consumers buying tickets on non UK airlines, so long as you can (potentially) provide a UK address for the airline. I know you can for Norwegian, for example.

As far as I can tell, this entire area is largely untested in court, but any examples would be informative.

 

Worth noting that Norwegian is an umbrella brand for (I think) four different airlines, so make sure you take any proceedings against the right one.

 

Is there a statue of limitations on CRA claims? Does it have the same, or more/less than EU261's six year deadline?

 

As any protection afforded under the CRA is based on a contract for the supply of goods or services, the limitation period is 6 years from the date giving rise to the claim (claims for personal injury are covered by MC and so unavailable under the CRA).

 

Thank you for starting this thread on what may become an important part of the legal landscape for airlines.

One suggestion though: Would it be an idea to change "Montr�al" to "Montreal"? The former word does not appear on an FT search for the latter, which is how most of us would type the word.

 

In the past, some have bought to attention BA subbing Club World aircraft for ones featuring Club Europe - namely on TLV and DME routes when ex BMI 321's haven't been available.
Under EC261 BA refused to acknowledge the downgrade because Business Class was still offered albeit in a diluted form. I'm guessing this piece of legislation will now make such aircraft swaps more open/closed on service received - whereby someone might have purchased a ticket on an affected flight because of the flat bed feature advertised but didn't receive it.

 

We are in a very gray area of law here and we cannot say such issues (or indeed any aviation related issue) can be thought as open/closed under CRA. The MC is a powerful piece of work intended encompass all claims for damages arising from air travel from embarkation and all the way to arrival. Ergo many 'contract' claims will fall outside the CRA because of the supremacy of the MC.

There are certainly openings here, and hopefully we can now dip our toes in the water and see how far the courts will go.

 

Both the UK and the EU are signatories to the Montreal Convention. It is a treaty obligation, in this case, of the UK (and 118 other nations). It serves to, on the one hand, make certain liabilities relatively easy to prove and collect and, on the other hand, to limit the application of local laws.

Hard to imagine the UK withdrawing from the Convention which protects carriers elsewhere in the world where one might suggest that local laws are not quite so balanced, in order to honor claims from those who argue that they paid for a higher thread count hot towel than was given.

 

Thank you CWS, very interesting.

I wonder if we on the FT community can help crowdfund some tests cases in the future?

 

In addition to Tobias' comment, Article 35 of MC has a 2 year limitation on it, and the airlines have in the past stuck to this firmly. The Sidhu case was particularly unfortunate since those remedies available in the Warsaw Convention were not open to the people on that flight: the victims were too slow in making their legal claims. On the other hand Dawson v Thomson Airways was a landmark case which gave EC261 a 6 year window. Either way a case even part reliant on MC is best brought in the first 2 years, I would say.

I'm staying out of Qu�bec's linguistic disputes, however there is only one official name for Montr�al, even in English, and it includes the accent. However this thread is primarily about the CRA rather than the MC.

It's an interesting thought. Any initial interventions at MCOL level should be relatively cost effective. However to get a Huzar level of clarity the CRA needs to go to a court where precedent is more weighty and case law can be attributed. It would be a bit unlikely for a BA case to end up there, but some other airlines are probably less complicated in their thinking. I suspect organisations like the CAA and Which? may be more interested in funding this at some point. It took nearly a decade for EC261's provisions to become clear.