We at Flightdelaypay have always preferred the use of Assignment as it transfers the right to take action to us and by doing so produces many benefits to the client as detailed below. An Assignment can be Equitable where our client has agreed to transfer the right but have not signed a formal agreement. FlightDelaypay.com prefer a Legal Assignment which is in writing signed by the passenger as it is clear to all parties that the right in the claim has been transferred and avoids the airline asking us to join in the passengers as a party to the proceedings.
- It transfers the right in the claim to FDP who can then progress the claim and report back when the matter is concluded allowing clients to get on with their lives. The passenger still receives their percentage of the recovery by way of a delayed purchase price when the claim is settled. If the claim is not disputed payment of the purchase price is made without delay.
- It means the client need not commence action in their own names.
- Small Claims Court usually don’t allow costs but in certain circumstances they can be allowed and this procedure isolates clients from such dangers.
- It allows clients access to justice.
- The party taking the action is an expert in Flight Delay and so able to respond to the complex arguments put forward by the Airline and their legal representatives.
- The Airline has legal departments and access to solicitors and barristers by assigning to FDP the balance is redressed.
- Assignment means that the claim is brought in the Company name and ensures a full review is done before litigating ensuring that the courts are not clogged up with poorly thought through cases.
Is a claim under EU 261/2004 personal by its nature or impersonal and therefore capable of being assigned? An EU261/2004 claim is assessed impersonally by calculating the distance of the flight and the period of delay. We therefore believe it is plainly an impersonal and can be assigned.
Two legal doctrines have been employed by defendants to prevent the Assignment of Claims these are Maintenance and Champerty.
Maintenance is the “ wanton and officious intermeddling with disputes of others” being provision of assistance where the party has no interest in the outcome.
Champerty is an aggravated form of maintenance where one party pays some or all the costs in return for a share of the proceeds. The rules were based on public policy considerations. The principle of Equity before the law in feudal days required the protection of the weak against exploitation by outsiders. These two doctrines were formed to protect the weak against the powerful but have long outgrown their use in the commercial world of today which allows litigation backed by Unions , Employers and the state under Legal Aid and lawyers are now permitted by law to run cases on behalf of their clients on a contingent basis. Precious few cases now come before the Courts without outside backing and Assignment used properly is an acceptable extension of that approach.
It is clear the Airlines do not like EU261/2004 and will do all they can not to pay compensation. They particularly dislike Legal Assignment as provides an avenue to claimants to pursue their claim without having to understand the legal process and the law as it applies to flight delay.
FDP has several cases with the County Court where Legal Assignment is being resisted by Airlines – we shall provide an update shortly.
We at FlightDelayPay.com look forward to the law being clarified on the use of this option and for carriers to recognise this as a means of allowing clients to pursue their rights.