At this time of year many of us will be thinking about our summer holiday and looking forward to a well-earned break. Indeed for many, this is one of the main highlights of their year, something they have saved up for all year. But what do you do when that dream holiday does not live up to expectations? In this week’s blog Michael Sproates, from our dispute resolution team, considers the issues……
Out of office
The time of year has finally arrived where you begin receiving a steady stream of out of office replies back from those fortunate enough to briefly escape the (not so) glorious English weather. A quick check of the calendar and you still have a few more weeks to survive before taking your own out of office revenge.
In eager anticipation you check the passport is still in date, the holiday insurance has been taken out and you’ve made sure you have a big enough stockpile of sun tan lotion to protect the kids during a fortnight stay on Mercury. However, and without trying to sound like a killjoy, what many jetsetters are not inclined to check before they set off are the legal and contractual rights they have whilst on holiday, just in case the dream holiday doesn’t quite turn out as expected.
Your Rights
What rights you have under your contract and/or legislation will largely be dependent on how you booked the holiday. For example, if you booked the holiday as a package your contract would be with the tour operator. However, if you booked the flight, hotel and any other services separate, you would have a separate contract with each individual service provider and therefore the respective terms may be different.
Before you set off, it is advisable to at least have a quick check through the terms and conditions provided by the tour operator or, alternatively, the hotel/flight operator if booked separately. The terms of agreement with a tour operator will likely be made up of booking conditions, information within the brochure as well as any representations made by the agent. Likewise, airlines or hoteliers should also provide you with a copy of the terms and conditions applicable to their specific service.
As a general rule, UK consumer law contained within the recently implemented Consumer Rights Act 2015 requires service providers to use reasonable care and skill when providing the service. Essentially, what this means is that it is implied into the contract that the holiday must match its description i.e. the hotel must look like the photos represented within the brochure. Further, the service provided must also be of a reasonable standard.
In particular, when checking the terms, it is advisable to take notice of the complaints procedure offered by each operator. That way, if you arrive in Australia to find the sink draining anti-clockwise, you know exactly what steps to take to inform the appropriate person. Being aware of the complaint procedure also means that there is a greater chance you can resolve any issues before it has the opportunity to spoil the whole trip. Due to the fact that you’re under a duty to mitigate your loss, it would also be advisable to complain as soon as possible. Also, make sure you take lots of photographs and compile evidence of the issues.
But what happens if the issue is so bad that it ruins your holiday of a lifetime?
Your Remedies
As mentioned previously, the first port of call is to complain to the operator. If the issue can’t be resolved during the trip, you should also be able to make a formal complaint in writing when you get home, however, please do so as quickly as possible and keep copies of any correspondence for your records.
In the context of package holidays, the Package Travel, Package Holidays and Package Tours Regulations 1992 apply to the contract and tour operator’s trade associations have code of conducts in place which are compliant with these Regulations. You may therefore, also wish to consider making a complaint to those trade associations which include The Association of British Travel Agents (ABTA) and the Association of Independent Tour Operators (AITO). Failing this, you could also consider whether your holiday insurance covers your loss or, alternatively, you could lodge a County Court claim against the service providers for any loss you suffer.
In respect of loss, in certain circumstances you may be able to claim for loss of value i.e. the difference in the cost of the trip to what was provided and/or your out of pocket expenses. For example if you were incorrectly told there was no ongoing construction, or, if before commencing your double backflip into pike from the high board, you notice that the pool is a weird shade of dark green, you may be able to claim a breach of contract and thus recover compensation to the value of the loss. The level of the loss, however, may be dependent upon the seriousness of the breach and the breach must be the fault of the provider. Therefore, you can’t claim compensation because of the weather!
In addition to this, holiday claims are the exception to the rule when it comes to loss of enjoyment and you are therefore able to claim for mental distress, inconvenience or disappointment. However, in the case of Milner v Carnival Plc (t/a Cunard) [2010] EWCA Civ 389 (Lawtel, 20 April), it was decided that the level of compensation can be dependent upon whether the holiday is considered special i.e. if you were intending to get married whilst on holiday or were on your honeymoon when the issues arose.
As a side point, and in addition to being able to pursue the operator for the loss discussed above, if you booked the trip using a credit card, you may also have a right against the credit card provider under the Consumer Credit Act 1974. This legislation provides that the credit card company is equally liable for the breach and may be particularly useful in situations where the operator is no longer in existence.
If you would like advice relating to issues highlighted in this blog, call Michael Sproates on 01642 873764 or email msproates@jacksons-law.com.
