Questions of Cash: The Independent

Q. A skip lorry hit my car while I was driving it In February. There were no personal injuries, so we merely exchanged details as there was a dispute over who was at fault. No witnesses stopped at the scene. I informed my insurance company, Hastings Direct, and my vehicle was repaired under the terms of my comprehensive policy, with me paying a £350 excess. I maintain that the other driver was at fault, provided evidence and made use of the legal protection cover on my policy to pursue the other driver for an admission of liability and to recover my excess. It now transpires that the other driver was not insured. The police don’t want to know, but the solicitor acting on my behalf has submitted a claim to The Motor Insurance Bureau to recover my costs. But unless the MIB find in my favour, Hastings Direct will register the incident as a fault claim. How can Hastings Direct categorise this claim as a fault claim against my name when I have a valid insurance policy and have provided evidence of the uninsured driver’s negligence? SH, Hampshire.

A. The Motor Insurance Bureau meets the cost of claims arising from accidents where the ‘at fault’ party was not insured. It deals with over 30,000 claims every year from victims involved in accidents with uninsured and hit and run drivers. Given the circumstances of your accident, your excess can only be recovered if the Motor Insurance Bureau accepts that the uninsured driver was not only acting illegally in not being insured, but was also at fault for the accident. Hastings Direct says because you included legal expenses insurance and a no claims bonus protection when you bought your motor policy, it has been able to pay for your costs in pursuing the legal action against the Motor Insurance Bureau. Hastings explains that it changed its policy this year to include an uninsured driver promise, so that any driver involved in a non-fault accident can claim without it affecting their no claims bonus. Consequently, although you need to win your case to recover the excess, you do not have to pay the cost of the accident and your legal expenses are covered. Hastings Direct adds that your no claims bonus is protected.

Q. My son and I booked with Continental Airlines to travel from Edinburgh to Newark on 2 July. The flight boarded, but there was a fuel leak from one engine, so the flight was delayed, then cancelled, rescheduled for the next day and then cancelled again. We eventually travelled, but lost one and a half days of a six day holiday. At Edinburgh, Continental staff gave us a leaflet explaining ‘rights in the event of… flight delay or flight cancellation’. European Union regulations covering longer-haul flights where there were delays of over four hours stipulate compensation of €600 per passenger. I submitted a claim on 15 July. I did not receive a reply, so phoned the airline and was assured the matter was in hand. Five weeks later I was offered a ‘tangible gesture’ of Continental’s ‘appreciation of our patience’: two electronic travel certificates worth $300 each, redeemable on Continental flights. I have written to Continental to explain the EU regulations, but I have not had a satisfactory reply. Can Continental assert that its offer – which I have not taken up – frees it from its responsibilities under EU regulations? CC, Edinburgh.

A. Continental clearly thinks it does – we disagree. We have discussed your situation with the European Commission, whose regulations seem clear. Under Article 7, Paragraph 3 of EU Regulation 261/2004, €600 compensation is due on a long haul flight where there is the type of delay you have suffered. All flights from the EU are covered by this regulation, even if the carrier is not registered within the EU. Compensation may only be provided in vouchers where there is written and voluntary agreement by the passenger. Despite this, Continental is not for shifting. A spokesman for Continental says: “this case was handled appropriately and within the EC261 guidelines”. He adds: “Because all routine preventative maintenance actions were performed on the aircraft as scheduled, and the root cause of the extended delay was a technical issue caused by extraordinary circumstances that could not have been reasonably predicted or avoided, the event is considered force majeure and exclusionary to the mandatory compensation rules.” We were not satisfied with this response and obtained the view of the Civil Aviation Authority. Michael Evans, the Consumer Affairs Officer at the CAA, confirms that your flight and delay fall within the scope of the EC 261 regulation. He explains: “The Regulation advises that compensation should be paid to passengers who are subject to a flight cancellation, if the cancellation does not form an ‘extraordinary circumstance’. Examples of which include: adverse weather conditions, political instability and flight safety shortcomings. Whilst some airlines may consider technical difficulties to mean the same as ‘flight safety shortcomings’ you may be aware that in December 2008, the European Court of Justice made a ruling that, as a general rule, airlines should not refuse to pay compensation when a flight is disrupted due to technical problems. They would only refuse to pay if the problem ‘stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control’.” This appears to back your case that you should be provided with compensation at the higher amount and in cash, not vouchers. On this basis we went back to Continental, to give the airline the opportunity to reconsider its position. However, its spokesman confirmed its view that “the event is considered force majeure and that therefore no compensation is due under Regulation EC261”. The CAA offers to work with you directly to develop a case that challenges Continental’s refusal to pay compensation.

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