My brother-in-law sued Emirates

[Danger]

...

Sorry I thought the reason for the cancellation was due to the error fare, as you posted the comments by expedia and the link to Flyertalk.

Regarding the schedule change, that is indeed correct. They postponed the start of the Penang service by three weeks to 1 May 2020, and after that, indefinitely.

If your brother bought the fare you linked to on Flyertalk, it was a PEN-SIN fare. This was a constructed routing via DXB, and there was no stopover in DXB.

Sounds like he bought a different fare, allowing a stopover in Dubai? And if so, the link to the FT deal was a bit confusing!

So what he's suing for is that he had a ticket to Dubai, Emirates cancelled the route entirely and offered a full refund, but he bought a replacement fare at a higher cost? If he was just going to SIN, why did he route via DXB?

My BIL and I both thought the reason for the cancellation was EK claiming it was an error, never because of the price but because of what EK said in its statement of defence to my BIL (and in the email from Expedia) that the routing was erroneous. But when my BIL asked the EK rep in court if that was the reason, he said no. The rep said the entire ticket was cancelled on 11 February because that's when EK cancelled the PEN-SIN flight he was booked on in April, in part - get this - due to covid. Covid flight cancellations on 11 February! My BIL repeatedly refuted the rep's claim that the PEN-SIN flight was cancelled on 11 February and referred him to this blog article from 28 March that discussed, just as you said, talked about the route being cancelled only in late March. The rep's response? The blog isn't a reputable source.

I should have been more clear on the routing. Both visits to DXB were less than 24 hours (something like 22 hours both times I think). The longest visit to SIN (which was DXB-xSIN-DXB) was nine hours.

My BIL hasn't bought a replacement fare, nor did he when he won against BA in 2015. Case law also doesn't require the money to have been expended to claim loss.

My BIL wasn't "just going to SIN". He was going to DXB as well. More than anything, though, he was earning points, 50K AS miles to be sure.

Post automatically merged: Dec 31, 2020

Thanks for keeping the thread civil. I’m enjoying the differences of opinion and looking forward to the result of the case. Despite whether or not the original fair was taking advantage, I feel airlines do need to be held to account as they would of us.

I agree totally with that. Disagreement is always welcome, provided it's polite, something FlyerTalk has never learned how to do.

Save for another delay, the verdict is due in minutes.

 

[Danger]

Delayed until 7 January.

 

[Captain Halliday]

An interesting case.

But I’m curious why EK (and in the former case BA) didn't just settle. The sum involved must be very small from EK’s point-of-view and likely much less than the cost of defending the claim.

@Danger what, if any, implications were there for your BIL following the BA case? Was he blacklisted by BA? Even informally? Any indication his file has been marked or noticeable change in service?

 

[MEL_Traveller]

My BIL and I both thought the reason for the cancellation was EK claiming it was an error, never because of the price but because of what EK said in its statement of defence to my BIL (and in the email from Expedia) that the routing was erroneous. But when my BIL asked the EK rep in court if that was the reason, he said no. The rep said the entire ticket was cancelled on 11 February because that's when EK cancelled the PEN-SIN flight he was booked on in April, in part - get this - due to covid. Covid flight cancellations on 11 February! My BIL repeatedly refuted the rep's claim that the PEN-SIN flight was cancelled on 11 February and referred him to this blog article from 28 March that discussed, just as you said, talked about the route being cancelled only in late March. The rep's response? The blog isn't a reputable source.

I should have been more clear on the routing. Both visits to DXB were less than 24 hours (something like 22 hours both times I think). The longest visit to SIN (which was DXB-xSIN-DXB) was nine hours.

My BIL hasn't bought a replacement fare, nor did he when he won against BA in 2015. Case law also doesn't require the money to have been expended to claim loss.

My BIL wasn't "just going to SIN". He was going to DXB as well. More than anything, though, he was earning points, 50K AS miles to be sure.

Post automatically merged: Dec 31, 2020

I agree totally with that. Disagreement is always welcome, provided it's polite, something FlyerTalk has never learned how to do.

Save for another delay, the verdict is due in minutes.

I'm struggling with the concept of what your BIL is seeking from EK? If he hasn't suffered any loss, and hasn't bought a replacement ticket, what is he suing for?

Let's say there was a contract, and you refer to the EK's conditions of carriage... the fare your BIL bought - if it is the one linked to FT - is a PEN-SIN-PEN fare. What does EK's contract say about agreed stopping places and where they ultimately need to deliver you to conclude their end of the contract? I suspect they only have the obligation to fly you to SIN, and return. It's sort of like those constructed fares across the USA, or even a BNE-MEL via SYD... the airline only needs to get you to your final destination (unless there is an agreed stopover in one of the intermediate cities.)

Yep, that's the change I was talking about . Bold away by all means, but in such circumstances its conventional to add something like : (my bolding).

As to the rest, I still don't see what the 'regular consumer' has to do with it. What individual punters know or don't know, or are supposed to know, or assumed to know ... is not relevant, IMHO to whether they can, or should, be able to book what's presented in front of them and, importantly, is accepted by the booking agent and money taken.

Would the Lifemiles screenshot method be known by 'regular consumers'? I'd say certainly not - its an 'insiders technique' shared on forums like this (just like the fare in question was). So is it actually not legitimate based on your reasoning?

Whether someone knew - or ought to have known - of a potential mistake can be a fundamental part of success in an action for mistake under contract law. Therefore the knowledge of the purchaser can, depending on the grounds of mistake being argued, very much be an issue!

The Lifemiles example is not really a valid analogy because there is no claim of mistake or wrongdoing. It is permitted under the terms and conditions of the program. Whether that's common knowledge isn't really relevant.

(I accept it is convention to mention something like 'my bolding' if it has the potential to change the quoted material, for example by placing a different emphasis, but that's not what happened in my quote! But your views are noted nonetheless.)

 

[Danger]

An interesting case.

But I’m curious why EK (and in the former case BA) didn't just settle. The sum involved must be very small from EK’s point-of-view and likely much less than the cost of defending the claim.

@Danger what, if any, implications were there for your BIL following the BA case? Was he blacklisted by BA? Even informally? Any indication his file has been marked or noticeable change in service?

I know both cases intimately. In the BA case, my BIL put an offer to them but it was rejected. BA put a counter offer that my BIL rejected. Both offers weren't monetary. In this case, my BIL made an offer at an earlier hearing (what's could a status hearing or something) to settle for something like $2500. EK flatly refused and also refused to put forward any offer at all. Considering EK could have asked for an NDA, I agree that it seems a little odd on the face of it.

Absolutely no negative implications whatsoever for my BIL following the BA case. Throughout the whole affair, BA acted largely professionally (the same can't be said for the lawyer, DLA Piper, the second largest in the world, that did the legwork). Only a few weeks after the verdict, my BIL flew Club Europe with BA. The cabin supervisor came up to him at the start of the flight and said "Mr X, my name is Y. There's a message from the company to welcome you onboard. If there's anything I can do during the flight, please let me know." Good ol' English manners. Even the head of BA's Australian operation that my BIL dealt with leading up to the trial was entirely gracious post-verdict. Not so much, in this case:

That the Defendant submits that this action is frivolous or vexatious within the meaning of the Rules and the Claimant should pay the Defendant’s costs of the proceeding.

...

No airline should be put to the trouble and expense of defending a claim such as this, particularly during a pandemic that has had serious consequences for the whole industry, without an Order for costs to redress the situation.

 

[Danger]

I'm struggling with the concept of what your BIL is seeking from EK? If he hasn't suffered any loss, and hasn't bought a replacement ticket, what is he suing for?

The cost of a replacement ticket, less what was refunded. Again, this is what he argued in the BA case and what the court accepted. His judgment there was for something like $5.5K.

The loss is the ability to undertake that trip for USD1600.

Let's say there was a contract, and you refer to the EK's conditions of carriage... the fare your BIL bought - if it is the one linked to FT - is a PEN-SIN-PEN fare. What does EK's contract say about agreed stopping places and where they ultimately need to deliver you to conclude their end of the contract? I suspect they only have the obligation to fly you to SIN, and return. It's sort of like those constructed fares across the USA, or even a BNE-MEL via SYD... the airline only needs to get you to your final destination (unless there is an agreed stopover in one of the intermediate cities.)

I don't think that's all that relevant here, purely because EK didn't argue any of that. If EK had turned around and said 'You bought a ticket from PEN-SIN. We'll fly you on that 90 minute flight and that's it', maybe. But EK didn't bring that up.

Whether someone knew - or ought to have known - of a potential mistake can be a fundamental part of success in an action for mistake under contract law. Therefore the knowledge of the purchaser can, depending on the grounds of mistake being argued, very much be an issue!

The Lifemiles example is not really a valid analogy because there is no claim of mistake or wrongdoing. It is permitted under the terms and conditions of the program. Whether that's common knowledge isn't really relevant.

(I accept it is convention to mention something like 'my bolding' if it has the potential to change the quoted material, for example by placing a different emphasis, but that's not what happened in my quote! But your views are noted nonetheless.)

The three elements of mistake in contract - that one party made a mistake, that the other party knew or ought to have known and that the non-mistaken party set out to prevent the mistaken party from discovering the mistake - never came into it. They were central to my BIL's BA case and he was successful certainly in proving elements two and three did not stand up. In this EK case, though, while EK originally said there was an error in the routing (again, not the price), when it came to trial, the EK rep said it wasn't anything to do with that, that his ticket was cancelled because his PEN-SIN flight in April was cancelled on 11 February, something my BIL and I both know to be factually incorrect.

 

[Danger]

On the subject of not having bought a replacement ticket, there's examples in case law where the aggrieved party does not first have to expended funds to claim loss.

For example, in Radford v De Froberville [1977] 1 WLR 1262, [1978] 1 All ER 33, the plaintiff received judgment against the defendant for costs he would be forced to expend as a result of the defendant’s breach, not costs he had already incurred. The full court in that case agreed that the plaintiff’s intended use of any damages was irrelevant, the court upholding the principle that a breach of contract is a breach of contract and must not go unpunished.

A similar judgement was delivered in Bellgrove v Eldridge [1954] 90 CLR 613. The plaintiff had contracted the defendant to build a home, only to later learn that the concrete used was defective. The defendant argued that the cost of rectification of the concrete was all that could reasonably be awarded. However, Their Honours found otherwise, finding that the plaintiff’s loss:

… can, prima facie, be measured only by ascertaining the amount required to rectify the defects complained of and so give to her the equivalent of a building on her land which is substantially in accordance with the contract

These cases are, of course, in addition to my BIL's successful BA case where he also hadn't bought a replacement ticket.

 

[MEL_Traveller]

The three elements of mistake in contract - that one party made a mistake, that the other party knew or ought to have known and that the non-mistaken party set out to prevent the mistaken party from discovering the mistake - never came into it. They were central to my BIL's BA case and he was successful certainly in proving elements two and three did not stand up. In this EK case, though, while EK originally said there was an error in the routing (again, not the price), when it came to trial, the EK rep said it wasn't anything to do with that, that his ticket was cancelled because his PEN-SIN flight in April was cancelled on 11 February, something my BIL and I both know to be factually incorrect.

I agree. I was responding to RooFlyer's more general question around why the knowledge of the purchaser mattered in cases of an alleged mistake fare.

The thing with legal cases is that they are never certain. The Swiss fares were initially incorrectly argued and Swiss lost. For round 2 onwards Swiss argued mistake and were successful. A lot can depend on the airline choosing the right angle to defend.

My initial concern here is that EK is arguing 'no contract'. you BIL will be arguing the opposite? If he is successful, won't EK then turn to their terms and conditions and the fare which was a SIN-PEN? And argue that is all that they need to reimburse?

 

[Buzzard]

Will be interesting to read the outcome in January.

 

[drron]

The only thing I know is that the only certainty is that the lawyers will be rewarded.

 

[Danger]

I agree. I was responding to RooFlyer's more general question around why the knowledge of the purchaser mattered in cases of an alleged mistake fare.

The thing with legal cases is that they are never certain. The Swiss fares were initially incorrectly argued and Swiss lost. For round 2 onwards Swiss argued mistake and were successful. A lot can depend on the airline choosing the right angle to defend.

My initial concern here is that EK is arguing 'no contract'. you BIL will be arguing the opposite? If he is successful, won't EK then turn to their terms and conditions and the fare which was a SIN-PEN? And argue that is all that they need to reimburse?

Yes, Emirates had argued 'no contract' but in seemingly very contradictory ways. For example, in its original defence, it states:

The defendant denies that a legally binding contract came into force.

Alternatively, the defendant denies the existence of a legally binding contract for the carriage of the claimant on the flights and dates of the purported booking.

(Of course, my BIL never made any issue of the "flights and dates". EK was simply trying to blur the lines here.)

But later in the same submission:

Further it was a term of any contract which was to come into existence that a right to a refund represented the only right of the claimant against the defendant if carriage did not take place for any reason.

(Which is false. See 9.2 below.)

And then, in a later submission:

The booking made by the claimant was subject to the defendant's conditions of contract and conditions of carriage [my emphasis].

And in court this week, when specifically asked by the magistrate, the EK rep surprised him (and the magistrate, I suspect) when he said that, yes, a contract was in force.

Yes, my BIL is arguing very much a contact was in existence. Take, for example, the opening paragraph in the aforementioned conditions of carriage:

If you have been issued with a ticket for carriage by air by Emirates, you will have a contract of carriage with Emirates. That contract gives you the right to be carried on a flight or series of flights and its terms are governed by ... [my emphasis].

And section 2.1.1:

These Conditions of Carriage form part of your contract of carriage with us ... [my emphasis].

In particular, my BIL has focused on section 9.2 of the contract:

9.2 Remedies for cancellation, rerouting and delays

9.2.1 Sometimes delays in departure times and the time taken for an aircraft to fly to a destination occur because of circumstances beyond our control (for example, bad weather or air traffic control delays or strikes). We will take all reasonable measures necessary to avoid delay in carrying you and your Baggage. These measures may include using an alternative aircraft or arranging for a flight to be operated for us by an alternative airline, or both.

9.2.2 You will be entitled to choose one of the following three available remedies if we cancel a flight; fail to operate a flight reasonably according to the schedule; fail to stop at your destination or Stopover destination; or cause you to miss a connecting flight with us or with another airline for which you hold a through booking/confirmed reservation and adequate time existed to make the connection after the
scheduled time of arrival of your flight. The three available remedies for you to choose from are available without extra charge and are set out in Articles 9.2.2(a) to (c) below. See also Article 9.2.3 for limitations on your rights and our liability.

9.2.2(a) Remedy One - we will carry you and your Baggage as soon as we can on another of our flights on which space is available and, where necessary, extend the period of validity of your Ticket to cover that carriage.

9.2.2(b) Remedy Two - we will re-route you and your Baggage within a reasonable period of time to the destination shown on your Ticket on another of our flights or on the flight of another airline, or by other mutually agreed means and class of carriage. We will also refund you any difference between the fare, taxes, fees, charges and surcharges paid for your carriage and any lower fare, taxes, fees, charges and
surcharges applicable to your revised carriage.

9.2.2(c) Remedy Three - we will give you an involuntary refund in accordance with Article 10.2.

He was not afforded any of these options, as required under this section, even after EK has repeatedly acknowledged cancelling his ticket.

Will be interesting to read the outcome in January.

Unfortunately the court doesn't produce anything in writing, other than a simple order saying 'Defendant is ordered to pay $x' or 'The case is dismissed'. Transcripts cost about $2.10 a page and the hearing this week apparently ran for about three hours so it wouldn't be cheap to obtain.

 

[MEL_Traveller]

Yes, Emirates had argued 'no contract' but in seemingly very contradictory ways. For example, in its original defence, it states:



(Of course, my BIL never made any issue of the "flights and dates". EK was simply trying to blur the lines here.)

But later in the same submission:



(Which is false. See 9.2 below.)

And then, in a later submission:



And in court this week, when specifically asked by the magistrate, the EK rep surprised him (and the magistrate, I suspect) when he said that, yes, a contract was in force.

Yes, my BIL is arguing very much a contact was in existence. Take, for example, the opening paragraph in the aforementioned conditions of carriage:



And section 2.1.1:



In particular, my BIL has focused on section 9.2 of the contract:



He was not afforded any of these options, as required under this section, even after EK has repeatedly acknowledged cancelling his ticket.

They have certainly tied themselves in knots! I would have just gone down the mistake path, voided the contract.

 

[Danger]

They have certainly tied themselves in knots! I would have just gone down the mistake path, voided the contract.

That would have been my BIL's preference (and mine). Between the two of us, we have ample examples of similarly and better-priced fares so EK would have fallen at the second element (the other party knew or ought to have known there was a mistake).

 

[MEL_Traveller]

That would have been my BIL's preference (and mine). Between the two of us, we have ample examples of similarly and better-priced fares so EK would have fallen at the second element (the other party knew or ought to have known there was a mistake).

Alternate airfares are tricky - IIRC they haven't usually been accepted as evidence of knowledge. (There are lots of new cars for $40,000. But that doesn't mean the Rolls Royce for $40,000 is not a mistake!)

 

[samh004]

The effect of all this is that Emirates has argued to a court that, at least in Australia, no contract exists between Emirates (and, presumably, any other airline) and the passenger when a ticket is paid for and the airline issues that confirmed itinerary. Emirates appears to have argued that a contract doesn't actually exist until the passenger physically checks-in.

Surely in this case it would actually be a good thing if he lost, as he and everyone else in Australia would win through easier refunds right up until check-in? The precedent would be devastating for the industry

It is the same method he used when he brought action against British Airways over its cancellation of the Dusseldorf to Kuala Lumpur F fare back in August 2015. He won that case.

Sounds like vexatious litigation to me, almost seeking out issues that could arise.

Full disclaimer, I've only taken advantage of one mistake fare, that was published on AFF about flights to Japan at the wrong award rate. I didn't end up taking them but they did ticket.

 

[Danger]

Surely in this case it would actually be a good thing if he lost, as he and everyone else in Australia would win through easier refunds right up until check-in? The precedent would be devastating for the industry

Somehow I think you'd still need to take EK to court if you wanted to avail yourself of that 1975 case, the case that, in my opinion, was decided the way it was because the terms of a contract were presented to the passenger together with the ticket, not in advance as they are today.

Sounds like vexatious litigation to me, almost seeking out issues that could arise.

Full disclaimer, I've only taken advantage of one mistake fare, that was published on AFF about flights to Japan at the wrong award rate. I didn't end up taking them but they did ticket.

Are you saying my BIL's litigation is vexatious?

 

[samh004]

Are you saying my BIL's litigation is vexatious?

Probably the wrong word by the dictionary/thesaurus definition, clearly got my words mixed up. Just sounded like the way you mentioned he also sued BA and won that he books fares for the express purpose of them being cancelled and then heading to court. My dictionary suggests vexatious perhaps wasn't the word I was searching for, but not sure what word I was?

 

[trevella]

Probably the wrong word by the dictionary/thesaurus definition, clearly got my words mixed up. Just sounded like the way you mentioned he also sued BA and won that he books fares for the express purpose of them being cancelled and then heading to court. My dictionary suggests vexatious perhaps wasn't the word I was searching for, but not sure what word I was?

Worst worded apology I’ve seen in recent history.

 

[Danger]

Probably the wrong word by the dictionary/thesaurus definition, clearly got my words mixed up. Just sounded like the way you mentioned he also sued BA and won that he books fares for the express purpose of them being cancelled and then heading to court. My dictionary suggests vexatious perhaps wasn't the word I was searching for, but not sure what word I was?

He books lots of fares, prior to BA and since. This is only the second time he's taken an airline to court over what's been termed an error. Considering the time and energy required to prepare a case, I'm sure he wouldn't agree that he goes after fares just to be able to sue. It's far from cut and dry (as much as I think it should at least be more cut and dry than it is).

At the end of the day, both he and I share the ACCC's view that it's a one way street with the airlines. You make a mistake, you're on the hook. The airline makes a mistake (or even doesn't make a mistake but delays your flight by a week or changes the aircraft or ...), you have to suck it up.

From my perspective, on the issue of so-called error fares, provided the airline acknowledges the alleged error inside 24 hours or 48 at the most and refunds monies paid very quickly (like, a week), I'm content, assuming I'm not otherwise out of pocket. In this case, EK cancelled within about 48 hours - but took four months to refund.

Post automatically merged: Jan 1, 2021

Worst worded apology I’ve seen in recent history.

Well I would politely disagree with that, too. First, I don't think samh004 needed to apologise. Second, I don't see anything wrong with either of his posts. He was merely expressing an opinion and he did so politely.

 

[samh004]

At the end of the day, both he and I share the ACCC's view that it's a one way street with the airlines. You make a mistake, you're on the hook. The airline makes a mistake (or even doesn't make a mistake but delays your flight by a week or changes the aircraft or ...), you have to suck it up.

That's certainly true and a good way to look at it. They have a lot of power to take your money, hold it and set very onerous conditions and I think COVID has certainly opened a lot of eyes to the industry practices, though I'm not sure any governments are going to make any changes to the way they operate any time soon.

Holding money after cancellation for 4+ months is, unfortunately, I think what a lot have come to realise is standard practice.