Representing yourself in court, or acting as a ‘litigant in person’ to give it its official title, is certainly an option when it comes to making a flight delay claim; but is not without its potential pitfalls.
Even consumer champion Martin Lewis says “If you’ve met rejection from the airline after the CAA/other European regulator has ruled in your favour and you may need to go to the small claims court, or you’ve a particularly complex case, using a solicitors firm like Bott and Co, which has been pioneering in this field, may be a help.”
We’re often approached by people who assumed they would just have to issue proceedings against the airline and that they would then roll over, admit liability and pay out compensation.
Our research suggests just 24% of people are successful
Unfortunately this is rarely the case. It’s not unusual for litigants in person to be on the receiving end of a complicated 10 page defence filled to the brim with complex aviation jargon and intimidating European Case Law.
But that’s not to say it is impossible to take your own flight delay case to court. Our research suggests just 24% of people are successful when claiming themselves however if you do decide to go it alone, we look at what should you expect; how much of your time it will take; and the potential pitfalls you should be wary of.
It is certainly possible for you to claim against the airlines yourself: The rules are there for a reason and anyone can access them, however it is important to know what you are letting yourself in for.
The rules and regulations surrounding flight delay compensation can be lengthy and complicated if you’re not familiar with the language being used. If you are acting as a litigant in person we cannot stress how important it is to take the time to read the regulation, understand it, and then familiarise yourself with what may happen if you go to court.
Whilst these ECJ cases are binding on the County Court, you should still expect to have to explain how and why they are relevant to your case.
When starting litigation you must be prepared for the fact that you may need to attend court with evidence to present your case. If you wouldn’t feel confident to represent yourself in court then you may want to reconsider whether being a litigant in person is the right course of action for you.
The skeleton argument is an important part of the process: This is where you set out your case and the arguments you will be using in court ahead of the hearing. It is likely that you will be referencing some key European Court of Justice (ECJ) cases in your own.
It is important to note that, whilst these ECJ cases are binding on the County Court, you should still expect to have to explain how and why they are relevant to your case. At the same time it is likely that the airline’s legal representative will try to show that your case is different to the ECJ case you are referencing so make sure you are prepared for that argument.
If you are taking your own flight delay claim to court, we have a number of free tools to help you. Our flight claims calculator can tell you if you have a valid claim with up to 95% accuracy. Just enter your flight date and number for an instant decision.
You can also download our free claim letter which you can send to the airlines to get your claim started.
Our website also gives you access to a number of noted cases, along with commentary as to why they are so important, for you to reference when preparing your case.
Unfortunately, what Bott and Co cannot do is protect litigants in person if they have issued and made an error. Mistakes in litigation can lead to you losing your case, and in some cases having a cost order against you.
Whilst the information is definitely out there for anybody to take their flight compensation claim to court themselves, you must not underestimate the time and effort this will take.
To give yourself the best possible chance of success you will need to make sure that you have the time to be fully prepared: This will mean reading the regulations, finding the relevant case law to your claim, digesting the arguments, drafting your documents and then attending court on the day for a hearing.
Don’t underestimate the time you’ll need to commit to claiming
We have spoken to several litigants in person who have taken their flight compensation claims to court themselves and they suggest it will take a minimum of 20 hours over several months to see the process through from start to finish. If you work, don’t forget to factor in taking time off work for court hearings.
Aside from the time it takes to take your flight delay claim to court, there will also be some upfront costs to pay.
If you are using the Money Claim Online (MCOL) service you will need to pay an issue fee and a hearing fee. For an average flight delay claim these would be about £75 and £105 respectively, but these amounts go up on a sliding scale depending on how much you are claiming for. You can find full details of the costs involved here.
It’s worth noting that rules state that if you lose you have to pay the defendant’s (i.e. the airline’s) reasonable expenses (which can run into hundreds of pounds) and/or have to pay the defendant’s legal costs if the court feels the claimant (i.e. you) have been unreasonable. This could happen if you don’t turn up, if you refuse an offer made by the airline, or you bring a claim that was always doomed to fail.
Remember too that if you want to issue proceedings for more than one passenger you need to do this on an N1 paper claim form and then send it to the County Court Bulk Issue Centre in Salford which is slightly more expensive.
We see lots of people making the same mistakes when it comes to taking their flight delay claim to court themselves – and we don’t want you to be one of them!
Issuing yourself without the proper preparation leaves you exposed and gives the airline the leeway they are often looking for to defend the claim. A poorly prepared case will give the airline’s legal team the opportunity to argue not just on the facts of your flight delay but on a procedural technicality. Proper preparation will leave you free in court to only argue on the facts of the case itself.
Below we’ve put together a handy list to help you avoid the most common pitfalls we see for litigants in person.
1. Name the defendant correctly
The defendant (i.e. the airline) must be identified correctly with their full legal title. For example you would need to issue proceedings against ‘Jet2.com’ not ‘Jet2’ and ‘Thomas Cook Airlines’ not just ‘Thomas Cook’. If you don’t name the defendant correctly then your claim could be struck out by the Court or you could be unsuccessful at trial. Even if you are successful you may not have a valid judgment if the defendant’s name is not legally accurate. There is no grey area here – the defendant MUST be correctly identified.
2. The ‘locus standi’ point
The courts are now encouraging people to issue electronically via the MCOL. However, this service doesn’t give you the option of naming multiple passengers. As a result we often see one passenger issuing on behalf of others. It is at the discretion of the District Judge as to whether they will accept this. It’s important to note that airlines often run this argument to a final hearing and if you are unsuccessful, the other passengers on your claim will have to issue court proceedings themselves if the airline still refuses to pay.
3. Plead the case properly
Take care to plead the case properly: That means citing the regulations and confirming the flight details, length of delay, flight distance and statutory amount you are claiming. The more information you can provide to correctly set out the history the better.
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4. Child claimants
Children (under 18s) cannot issue court proceedings themselves, even as a part of a group of claimers. They will need to appoint a Litigation Friend instead. This must be pleaded and a certificate of suitability should be filed at court along with the pleadings.
5. Prepare properly
We would recommend that you file a skeleton argument prior to trial as well as filing your witness statement 14 days before the court hearing. The way you present your skeleton argument is really important: It should include references to the applicable parts of the judgments that you will be using in your argument, copies of those judgments in full, and reasoned justification for the court as to why they should find in your favour.
6. Limitation expiring
Something that catches a lot of people out is limitation (i.e. how long you have to bring a flight claim against the airline). Whilst the law says you have six years to bring a flight delay claim in England and Wales, it’s important to note that the ‘clock doesn’t stop ticking’ on your claim until you have issued court proceedings. If your claim is nearing six years old and the airline is disputing it then make sure you start court proceedings to avoid your case expiring.
If you’re representing yourself in court then you need to get it right. The Courts usually show a bit of leeway to litigants in person but Civil Procedure Rules are there for a reason and must be followed.
We have had numerous clients come to us asking for help after not issuing proceedings correctly.
We have had numerous clients come to us asking for help after not issuing proceedings correctly. Often it is not economical to continue with those pleadings and instead we have to discontinue and start again. In these cases you cannot recover the issue fee for incorrect pleadings even if you are successful in the end. That means that innocent passengers can find themselves not recovering as much compensation as they should because they aren’t familiar with the litigation process.
Most worrying is that the court has the power to strike out incorrect proceedings as an ‘abuse of process’ and award costs against the claimant (i.e. make you pay the other side’s costs). If that happens, not only do you not recover your compensation, it will cost you extra for not litigating correctly: The very definition of adding insult to injury
We’ve had lots of clients turn to us after coming to a dead end when claiming themselves, or having found the court process intimidating. If you want Bott and Co to take on your flight claim half-way through we will look at the full facts of your case and see if it is possible for us to take on the file or issue a Notice of Acting. If we do take on your claim we offer a no-win no-fee service which takes away all the financial risk to you that we have discussed above.
If you haven’t got the time or the inclination to learn this information but you still feel you have a valid claim then we will take on your case on a ‘no-win, no-fee’ basis and represent you to trial if need be.
To avoid a costly mistake like those explained above, it’s important that you have got a good grasp of the Regulation under which you will be claiming.
Regulation EU 261/2004 aims to protect air passenger rights in the case of long flight delays and cancellations. You can claim a fixed amount between €250 – €600 according to the length of your flight and how long your delay was. The amount of flight compensation you can claim is not affected by the cost of your ticket: The Regulation is there to compensate you for your lost time and the inconvenience of your delay as opposed to refund the ticket price.
To qualify, the delay must be more than three hours and the flight must be leaving an EU country or landing in an EU country on an EU airline. Airlines do not however have to pay this compensation if the delay is caused by what the regulation calls an ‘extraordinary circumstance’ which covers things such as industrial strike action, extreme weather or terrorism.
How Brexit Affects Your Claiming Rights
Right now you’re still covered by Regulation 261/2004 and you can benefit from the air passenger rights for care and assistance during delays of more than two hours (depending on the distance of the flight) and for claims for compensation of up to €600 for delays of more than three hours (depending on the flight distance).
If you have experienced a flight delay of more than three hours in the last six years and are yet to put in a claim for compensation then we would recommend you submit your details through our flight delay calculator as soon as possible while we have a clearer picture of your passenger rights.
As we learn more over the coming weeks and months and how flight delay claims and air passenger rights are affected we will continue to update you.
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