england-and-wales
How can laypeople investigate an airline&#39;s allegation of &#39;extraordinary circumstances&#39;?
<p>Some airlines allege 'extraordinary circumstances', e.g. to deny liability and shirk compensating under Recital (14) of <a href="http://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:32004R0261" rel="nofollow noreferrer">Regulation (EC) No 261/2004</a>: </p>

<blockquote>
  <p>(14) As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.</p>
</blockquote>

<ol>
<li><p>How can passengers cost-effectively check if the airline's telling the truth, without and before a lawsuit? Doing so after the lawsuit looks foolish. as:</p>

<ol start="2">
<li><p>a judge may not grant you a subpoena/witness summons.</p></li>
<li><p>if you learned that the airline were truthful only after filing the claim, then you'd lose and must pay legal costs (e.g. in England &amp; Wales).</p></li>
<li><p>the airline can falsify its records without a layperson's knowing it. </p></li>
</ol></li>
</ol>

<p>Assuming you have suffered a delay, you may complain both to the airline and the national enforcing body with <a href="https://ec.europa.eu/transport/sites/transport/files/themes/passengers/air/doc/complain_form/eu_complaint_form_en.pdf" rel="nofollow noreferrer">this form</a>. If you don't know your NEB, <a href="https://ec.europa.eu/transport/sites/transport/files/2004_261_national_enforcement_bodies.pdf" rel="nofollow noreferrer">this</a> will tell you where they are. <a href="https://ec.europa.eu/transport/sites/transport/files/themes/passengers/air/doc/neb/neb_airlines_procedures.pdf" rel="nofollow noreferrer">This document</a> spells out the procedure interaction between your NEB and the airline, specifically addressing the "extraordinary circumstances" question.</p>

<blockquote>
  <p>If  information  provided  by  airlines  is  of  a  coherent  and
  detailed  character,  NEB  are  left  with  a  margin  of  flexibility
  and  can  apply  a  system  of  random  checks,  respecting  the
  principle  of  proportionality.    If  information  is  only  provided
  in  a  generalised  manner  not  allowing  NEB  to  draw  sound
  judgements,   each   incident   has   to   be   followed   up   on
  individual   case-by-case   assessment    requesting for example, as
  matter of proof, logbooks, incident reports, maintenance manuals etc.</p>
</blockquote>

<p>The airline may provide the NEB with sufficient evidence that there were "extraordinary circumstances", in which case you're probably not going to get compensation, or they were too vague and the NEB will follow up, and you either get compensation or you won't. If the NEB doesn't rule the way you'd like, you could sue (which is a risk) if you think there was a misinterpretation of the regulation, for example, if the NEB didn't get the message that care is always mandated and only compensation goes away. Or, it may be necessary to sue in order to get an official interpretation (such as what "arrival time" means), but such cases are rare (<a href="https://ec.europa.eu/transport/sites/transport/files/themes/passengers/air/doc/2015-summary-of-the-most-relevant-ecj-judgements.pdf" rel="nofollow noreferrer">this</a> seems to contain the applicable case law)/ </p>

<p>This only goes to the question of whether the airline interprets the facts in accordance with the law, where the NEB will correct the airline if necessary. There is no cost effective way to test whether the facts reported to the NEB were falsified.</p>

<p>Slow down tiger, before you head off to court do you actually have a dispute? If you don’t, the court will quite rightly tell you to bugger off. If you do, then you know what it’s about.</p>

<p>First, there must have been an event that you believe entitles you to a refund. Second, you must have asked for the refund and been refused under this clause; in doing so the airline needs to tell you the event they are relying on. Most of these are trivial to verify from independent sources. Notwithstanding, the airline will have a dispute resolution clause (probably) where they would provide you with the evidence.</p>

<p>Losing and paying the other parties costs are the risks you take in any litigation.</p>

<p>Finally, you need help for your paranoid delusion that an airline would falsify records and risk their entire business just to avoid refunding you a few thousand dollars.</p>
