MarkJ HT Mod wrote:
It will be in the small claims court. Having been there myself (and incidentally won the case) it was made absolutely clear that as the claimant burden of proof wholly lies with me. That included having to counter claim the documents provided by the defendant. Just saying that those documents were not true isn't good enough - it needs to be substantiated. How a layman is going to counter claim any technical documents littered with technical jargon and having to need airline experience I don't know.
A small claims court will take the stance that the defendant is right unless proven differently and therein lies the crux of the matter. No different to a proper court where your innocent until proven different applies.
In cases of claims for compensation under 261/2004 in the small claims track the reverse burden of proof applies. Article 5.3 An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
That means that the claimant does not have to prove their entitlement to compensation but should rightly show that the defence offered by the airline cannot be considered 'extraordinary circumstances' either by reference to existing precedent case law or by demonstrating that the exact meaning of the words in the regulation should be considered in light of their everyday use in the english language
The defendant absolutely has to prove the defence not
the claimant. Like you, I too have had my day in court and won and forced BA to try to prove their defence, a point on which they failed. Have a look at Flightmole if you either disbelieve the reverse burden of proof aspect or want to see my case in more detail.
If one is taking a claim via MCOL then my reference to 3-4 months timescale refers to the time between the airline submitting its defence in response to the claim itself after about a month rather than the submission of witness statements and precedent case law referrals being produced 14 days prior to the hearing. The airline cannot change the whole substance to the defence they have submitted at the last minute.