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Flight rights - Case studies

Which? Legal member Mr Ray Whitford and his wife were stranded in Australia earlier this year after their flight home was cancelled due to the pandemic. Following the cancellation, Mr Whitford sought assistance from Emirates to find a route home, but the responses offered very little help. After contacting the British High Commission in Canberra and waiting several days, they were told they could fly home with Qatar Airlines for £9,223.

Our advice

Under Article 19 of the Montreal Convention 1999, an airline must reimburse losses suffered as a result of a cancellation, if reasonable steps weren’t taken by the airline to avoid the loss. Emirates made no attempt to assist Mr Whitford in securing flights to the UK with an alternative airline. On our advice, Mr Whitford submitted a formal claim to Emirates, for the cost of the replacement flight. It was rejected on the basis that the amount he sought was more than the cost of the original flight, but Ray stood firm and was eventually reimbursed for the additional sum.

The law

The Montreal Convention establishes passenger rights in case of delayed or lost luggage, flight delays and cancellations, and certain injuries. Article 19 of the Convention can be applied for up to two years from the intended date of travel, provided that all necessary documentation is kept. A claim can be made via the airline’s website.

What Emirates says

Emirates told Which?: ‘Following the temporary suspension of passenger flights as a result of the COVID-19 pandemic, Emirates has worked to ensure all customers receive full applicable refunds and have completed over 1.4 million refund requests to date. We’re pleased to hear that Mr Whitford has received his refund, and hope to welcome him on board again.’

Which? Legal members Lesley Reynolds and John Truelove flew from London Gatwick to Innsbruck, Austria, for a walking holiday with friends.

Unfortunately, the holdall containing their walking boots did not arrive with them, so before leaving Innsbruck airport they completed a Property Irregularity Report (PIR) to log it as missing. The holdall was eventually found and delivered to their hotel, but they had already bought replacement boots at a cost of £310 after waiting for three days without an update.

On returning to the UK, Lesley contacted the airline and asked to be reimbursed for the cost of the replacement boots. After the company offered her £50 in compensation instead, Lesley contacted Which? Legal for advice.

Our advice

We advised Lesley that she was protected under the Montreal Convention 1999 and the Package Travel Regulations 1992. We explained that she was legally entitled to claim for the reasonable costs of replacing the items that didn’t arrive with her in Austria, as walking boots were an essential item to allow both her and John to enjoy their holiday.

As the airline refused this refund, Lesley then had the right to escalate the complaint to be independently reviewed by the Centre for Effective Dispute Resolution (CEDR). This can often be used as leverage to influence tour operators to reconsider their position. This resulted in a full refund of £310 to reimburse Lesley and John for the cost of replacing the walking boots.

The law

Articles 18 and 19 of the Montreal Convention 1999 make the air carrier liable for damage or loss of baggage while under its control, so it was legally responsible for ensuring the bag arrived in Austria. The tour operator was ultimately responsible for the holiday under the Package Travel Regulations 1992. Under both these laws, Lesley and John were entitled to claim for their financial losses.


Airline offered just a €20 voucher after couple spent more than €400 trying to get home

Which? member John Lloyd and his partner Antonia Watt suffered nightmare flight delays and had to spend €443 of their own money on accommodation, meals and travel to get home from holiday.

As compensation, the airline, Vueling Airlines, offered just a €20 voucher for another flight with it, which had to be used within six months.

John had booked flights from Nice to Barcelona in May 2014. The return flight to Nice was for 24 June, but it was delayed. When they got to the airport he got a text to say it was cancelled.

The couple’s hotel booked them on a flight for the next morning, but when they got to the airport, it was first shown as delayed, then cancelled.

John queued at the Vueling check-in desk for three hours only to be told there were no flights to Nice that day or the next. The check-in assistant at the desk booked them on a flight to Turin to catch a train back to Nice.

Vueling booked the flight to Turin, but the couple had to find a hotel and book the train. In the end they flew to Turin and took two trains to get back to their car at Nice airport. They arrived in Nice on 27 June, having spent €443.42 and travelled for an extra three days.

John wasn’t impressed by the €20 voucher and asked for our help. We advised that he wrote to Vueling’s chief executive. He was given a full refund.

The law

Under the Denied Boarding Regulation, an airline must offer you help if your flight is cancelled or delayed beyond a certain point. You’re protected if you fly from an EU airport, or a non-EU airport and into an EU airport on a ‘community carrier’ (an airline with its HQ and main place of business in the EU). You must have a confirmed booking and have checked in at least 45 minutes before your flight was due to leave.

If a flight is cancelled, you should get two free calls, meals, drinks, plus hotel accommodation and transfers if you must stay overnight. You should have a choice of a full refund for direct flights or re-routing to your destination.

How much compensation you can get depends on flight distance and how late you arrived at the final destination.

An airline won’t have to give compensation if cancellation is caused by ‘extraordinary circumstances’, such as a natural disaster or industrial action. These don’t include technical faults.

Getting stung with a charge for excess baggage is something that would irritate many of us – especially when you’ve taken the trouble to pack carefully to avoid an excess baggage charge.

That’s the situation Dr Richard Jakeman and his wife faced when flying with Qantas to Sydney in 2010.

Arriving at Heathrow Airport, the couple discovered that the flight check-in was operated by British Airways.

They wanted to check in three bags between them, but were told that the check-in baggage allowance was limited to just one piece of baggage each. Confident that Qantas’ terms and conditions had no limit on the number of bags, just the weight, Richard complained to the BA check-in staff.

However, British Airways was adamant there was a limit so Richard had no option but to pay a £40 surcharge. No excess baggage charge was made on the return flight.

When the couple returned home, Richard checked Qantas’ terms and conditions again and they clearly indicated the weight allowance. However, no mention was made of the number of cases that could be checked in. Richard complained to Qantas.

Several emails later with no satisfactory response from the airline, Richard telephoned Which? Legal for advice on what steps he could take to get his money back.

Which? Legal advice

We explained that, although he could issue proceedings in the small claims court, he first needed to send a formal pre-action letter, giving the company a time limit within which to respond.

Qantas failed to respond within the time given and we therefore advised Richard on how to issue a claim in the small claims court.

Richard issued proceedings against Qantas.


The airline subsequently wrote to the court stating that it had misunderstood the issue and agreed that the luggage was in fact within their weight allowance. It reimbursed Richard the excess baggage charge and his court costs of £25.

Legal points

The Civil Procedure Rules set out what parties to a potential claim should do before proceedings are issued – this is known as the Pre-Action Conduct.

The Court expects all parties to have complied with those Rules and any relevant pre-action protocols, which set out the steps that must be taken in certain types of proceedings.

There is no specific protocol such as this in most consumer cases, but the rules still give guidance on pre-action procedure, the Civil Procedure rules actions you must take before proceedings, and set out what must be in a claimant’s letter before making a formal claim.

Which? Legal can help you take the necessary steps to resolve your issue and make sure you have complied with pre-action protocol if you need to take the matter further.

Doug McIntyre, his wife Gisela and daughter Alysia were looking forward to their flight to Nairobi. But when they arrived at Heathrow Airport, they were told that the flight had been cancelled because of ‘technical problems’.

After a great deal of queuing and what they felt was rude customer service, the family were rebooked on a flight leaving the following day, over 22 hours later than planned.

Two days before the couple was due to return to London – their daughter having flown home earlier – they received a call to say their return flight had been cancelled.

The airline offered the couple seats on a flight leaving the next day or a night flight on the correct date but with another airline. As both had work commitments back home, they chose the overnight flight.

Back in the UK, Gisela wrote to the airline asking for compensation. The airline acknowledged that the flights ‘were disrupted due to operational reasons’. While it had previously offered the couple 25,000 air miles per person at the airport, no financial compensation was offered in response to Gisela’s letter.

Doug then called Which? Legal for advice. 

Which? Legal advice

We explained that, under the Denied Boarding Regulations, Doug had a right to compensation for the cancelled flights unless the airline could show that they were due to ‘extraordinary circumstances’. Because of the distance they were travelling, the compensation would be €600 per person, per cancelled flight.

Doug wrote again to the airline claiming for the five cancelled flights. This time they blamed ‘a shortage of aircraft’ for the cancellation of the outbound flight and ‘strike action by the company carrying out maintenance on the plane’ for the cancelled return flight. The airline still refused to offer compensation, so Doug started court action.


The airline then offered £1,770 compensation. Keen to avoid having to go to court and wary that strike action could be classed as ‘extraordinary circumstances’, Doug accepted the offer.

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