By law you have the right to expect the package holiday that you booked and paid for. So the holiday description must be accurate. If not, you have refund and compensation rights under the Package Travel Regulations.
By law you have the right to expect the holiday that you booked and paid for. So, look carefully at how the holiday is described in the brochure or elsewhere. A brochure is defined as a brochure in which packages are offered for sale, and therefore would apply to a wide variety of documents, including the internet which is how most holidays are sold these days.
If the holiday doesn’t match the description, then you may have a claim against the tour operator for compensation. The tour operator, if you have booked a “package holiday”, is liable for all the services - car hire, accommodation, flights, etc - as long as they were part of the package the tour operator arranged for you.
The Package Travel Regulations can be used to assist you in pursuing claims against tour operators, and how damages are assessed in holiday claims. This information applies to England, Wales and Scotland.
What constitutes a package holiday
In relation to any claim, it is essential to establish whether you have booked a package holiday within the meaning of the Package Travel Regulations. If your holiday contract falls within the definition, you will benefit from the additional terms implied into the contract by the Regulations.
Regulation 2(1) of the Package Travel Regulations provides that:
"package" means the pre-arranged combination of at least two of the following components when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation:
(c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package”
Importantly the submission of separate accounts for different components shall not cause the arrangements to be other than a package.
The fact that a combination is arranged at your request and in accordance with your specific instructions (whether modified or not) shall not itself cause it to be treated as other than prearranged.
The definition includes a wide range of travel arrangements. Clearly traditional package holidays described in brochures are caught, but it would also include tailor-made holidays where you have selected the separate components.
The Regulations also apply to packages which are not holidays, for example, business travel arrangements, conference arrangements, educational weekends, school trips etc.
Package holidays could also include holidays where the accommodation and the flights are supplied by two different suppliers, but “organised” or “put together” by a separate person.
Today it is becoming more common to offer holidays that are not packages. They may seem to be the same, as they include flights and accommodation, but care must be taken by the agent as to how they are described. A holiday will not necessarily be a package if it is made quite clear to you that there are two separate contracts, one with the airline and one with the accommodation provider. If phrases are used such as 'dynamic packaging', 'tailor-made holiday' or 'flight plus hotel deal' these holidays may not be packages.
The holiday must be as described
Regulation 4, "Required information in Brochure", provides that: No organiser or retailer shall supply to a consumer any descriptive matter concerning a package, the price of a package or any other conditions applying to the contract which contains any misleading information.
This is clearly wider than just brochures and none of the descriptive material should be misleading. This could be the case where the swimming pool referred to in the brochure does not exist or the beach is considerably further away from the hotel than the 5 minutes walk suggested. If it is misleading the organiser or retailer is in breach and may be liable to you for any loss.
Regulation 5 sets out the requirements as to brochures. In particular, the brochure must be “legible, comprehensible and accurate” regarding the price and the information required pursuant to Schedule 1 of the Regulations. This states what information in addition to the price must be provided (Schedule 1 Regulation 5):
1. The destination and the means, characteristics and categories of transport used.
2. The type of accommodation, its location, category or degree of comfort and its main features and, where the accommodation is to be provided in a Member State, its approval or tourist classification under the rules of that Member State.
3. The meals which are included in the package.
4. The itinerary.
5. General information about passport and visa requirements which apply for British
citizens and health formalities required for the journey and the stay.
6. Either the monetary amount or the percentages of the price which is to be paid on
account and the timetable for payment of the balance.
7. Whether a minimum number of persons is required for the package to take place and, if so, the deadline for informing the consumer in the event of cancellation.
8. The arrangements (if any) which apply if consumers are delayed at the outward or
return points of departure.
9. The arrangements for security for money paid over and for the repatriation of the
consumer in the event of insolvency.
The regulation applies to both tour operators and travel agents and failure to comply is a criminal offence.
Ensuring your contract is accurate
Regulation 9 sets out the necessary content and form of the contract. You must be provided with a written copy of the contract containing the information listed in Schedule 2 of the Regulations in a comprehensible and accessible manner.
1. The travel destination(s) and, where periods of stay are involved, the relevant periods, with dates.
2. The means, characteristics and categories of transport to be used and the dates, times and points of departure and return.
3. Where the package includes accommodation, its location, its tourist category or degree of comfort, its main features and, where the accommodation is to be provided in a Member State, its compliance with the rules of that Member State.
4. The meals which are included in the package.
5. Whether a minimum number of persons is required for the package to take place and, if so, the deadline for informing the consumer in the event of cancellation.
6. The itinerary.
7. Visits, excursions or other services which are included in the total price agreed for the package.
8. The name and address of the organiser, the retailer and, where appropriate, the insurer.
9. The price of the package, if the price may be revised in accordance with the term which may be included in the contract under Regulation 11, an indication of the possibility of such price revisions, and an indication of any dues, taxes or fees chargeable for certain services (landing, embarkation or disembarkation fees at ports and airports and tourist taxes) where such costs are not included in the package.
10. The payment schedule and method of payment.
11. Special requirements which the consumer has communicated to the organiser or retailer when making the booking and which both have accepted.
12. The periods within which the consumer must make any complaint about the failure to perform or the inadequate performance of the contract.
If your holiday is ruined by building work
If the tour operator is a member of Association of British Travel Agents (ABTA), then the ABTA Code of Conduct (20 Jan 2010 edition) will bind them and this specifically makes reference to the situation of building works.
Under rule 3I (that is 3 I for India) where a tour operator becomes aware or ought reasonably to have become aware of building works which may reasonably be considered to seriously impair the enjoyment of travel arrangements, notify clients of the situation without undue delay, provide them with accurate information about the extent of the building works and offer them the opportunity to transfer to alternative travel arrangements.
These days most tour operators will notify you of the existence of building works in the vicinity of the hotel/resort and most problems relate to the accuracy of the information provided relating to the extent of the building works.
Changes to a booked holiday
Regulations 12 and 13 of the Package Regulations are concerned with pre-departure cancellation or alteration by the organiser:
Regulation 12 (a) implies into the contract a term that, where the organiser is constrained before the departure to alter significantly an essential term of the contract, such as the price, he will notify the consumer as quickly as possible in order to enable him to take appropriate decisions and in particular to withdraw from the contract without penalty or to accept a rider to the contract specifying the alterations made and their impact on the price.
Regulation 12(b) requires you, to respond to the notification of the alteration of the essential term. You then have the option of withdrawing from the contract without penalty or accept a variation.
If you withdraw from the holiday contract pursuant to Regulation 12, or where the organiser cancels the holiday for any reason other than the fault of the consumer, then Regulation 13 gives you the following implied contractual rights:
(a) to take a substitute package (if available) of equivalent or superior quality; or
(b) to take a substitute package of lower quality (if available) and to recover from the organiser the difference in price between the price of the package purchased and that of the substitute package; or
(c) to have the purchase price repaid as soon as possible.
You would also be entitled to compensation in addition, if appropriate. For example, kennel fees, cloths bought for the holiday, suntan lotion etc. Provided you can show that these costs were genuinely incurred, they are in principle recoverable.
In the context of a package holiday contract, an alteration to an “essential term of the contract” is likely to include:
- the price;
- the precise accommodation, standard of accommodation and accommodation facilities;
- the type and standard of transport;
- the place of departure and destination;
- any facility or service advertised or promoted as forming a part of the package;
- any term required by the Package Travel Regulations or the ABTA Code of Conduct to be included as part of the contract.
In practice, the problem is that the tour operator or travel agent may not inform you of any pre-departure changes until shortly before your planned departure date. Many of you would have already have booked your holiday time off well in advance and find it difficult either to rearrange your holiday time or find an alternative holiday at the same price.
Invariably, you are left with little choice but to go ahead with the holiday, as the alternative will be no holiday at all. It is important to note that, even if you do decide to cancel the holiday (and you do mange to find an alternative holiday), you may still be entitled to some compensation in addition.
There are two defences which may be relied on by the tour operator. Firstly, Force Majeure (or “act of god”) and secondly, where the minimum number of customers required on the package has not been achieved. If either of these two defences can be raised, then the tour operator will not have to pay you any additional compensation.
If the tour operator is a member of ABTA then the Code of Conduct provides that changes should not be made less than 14 days prior to departure, unless it is necessary to do so as a result of Force Majeure, and that compensation may be appropriate.
Post departure changes
Regulation 14 provides that where, after departure, a significant proportion of the services contracted for are not provided, or the organiser becomes aware that they will be unable to procure a significant proportion of them:
- the organiser must make suitable alternative arrangements, at no extra cost to you, for the continuation of the package and will, where appropriate, compensate you for the difference between the services to be supplied under the contract and those supplied; or
- If it is impossible to make arrangements, or these are rejected by you for good reasons, the organiser will, where appropriate, provide you with equivalent transport back to the place of departure or to another place to which you have agreed and will, where appropriate, compensate you.
One of the main problem areas with these types of claims is the suitability or not of the alternatives offered by the tour operators. Obviously, each case is judged on its own merits and it is difficult to offer universal advice, but you have to be careful to ensure that you try to mitigate (reduce) your loss. The law expects you to act reasonably when faced with a problem and when considering possible solutions.
You may have difficulties if you decide to incur the additional cost of flying home immediately without giving the tour operator a reasonable opportunity to provide a suitable alternative.
If your tour operator says a problem is not their fault
Regulation 15 refers to the liability to the consumer of the “other party” to the contract. The term “other party” includes both tour operators and travel agents.
In relation to the civil liability of the tour operator the most important provision is Regulation 15, which provides:
“The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services.”
Important points to note are that the liability is imposed on “the other party to the contract”; that is usually the tour operator. Liability is in respect of the failure to perform, or improper performance of, the obligations under the contract. Therefore, it is important to ascertain what “the other party to the contract has agreed to provide under the package holiday contract” One area where there are often problems is the provision of excursions and services provided in resort, which will not be part of the contract.
The regulatory liability created under Regulation 15 applies irrespective of whether the performance is to be effected by the “other party to the contract” itself or by one or more of its suppliers. This will usually include owners of the hotel, the airline providing flights, coach transfers, restaurants at resort etc. Effectively, Regulation 15 imposes a form liability on the tour operator for the fault of the “other” suppliers under the contract, including agents and independent contractors as well as the fault of its own employees.
The exceptions are where the improper performance or non-performance (“a failure”) is not due to the fault of the tour operator or “another supplier of services” because:
(a) the failures which occur in the performance of the contract are attributable to the consumer;
(b) such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable; or
(c) such failures are due to—
(i) unusual and unforeseeable circumstances beyond the control of the party by whom this exception is pleaded, the consequences of which could not have been avoided even if all due care had been exercised; or
(ii) an event which the other party to the contract or the supplier of services, even with all due care, could not foresee or forestall.
None of the above defences are available to a tour operator unless it can first demonstrate that there has been no fault on its part or on the part of another supplier of services. These other suppliers of services will include not only suppliers engaged directly by the tour operator, such as an airline or hotel but also sub suppliers such as an airport catering company or contractors hired by a hotel to carry out building maintenance. Only if the tour operator can prove no fault can it go on to try to establish that the failure complained of by the consumer was due to the consumers own act or omission, the act or omission of an unconnected third party or, essentially, force majeure (act of god).
Regulation 15 (5) prohibits tour operators from trying to exclude liability except any further than is permitted by Regulations 15(3) and 15(4)
Regulation 15(3) allows tour operators to limit the amount of compensation payable in accordance with international conventions. The principal international conventions are the Warsaw Convention, as amended by the Montreal Convention, which governs international carriage by air and the Athens Convention which governs international carriage by sea. Both these Conventions set out maximum compensation payable for death, personal injury, delay and lost or damaged luggage.
Under Regulation 15(4) a tour operator is allowed to limit the amount of compensation he will pay for damage other than personal injury, provided the limitation is not unreasonable.
Under Regulation 15(7) a tour operator must give prompt assistance to you if you are in difficulty. These circumstances are when neither the tour operator nor any other supplier of services is at fault and you encounter a difficulty which arises out of your own act or omission or the act or omission of a third party unconnected with the package.
Regulation 15(8) states that if you complain about a defect in the package, to the tour operator or his local representative, if there is one, then the tour operator must make prompt efforts to find appropriate solutions.
Under Regulation 15(9) you must communicate at the earliest opportunity, in writing or any other appropriate form any failure which you perceive at the place where the services concerned are supplied. The purpose of this provision is to provide tour operators with an opportunity to rectify defects early enough to minimise their impact on a package.
Holiday compensation claims
Damages in travel claims can usually be broken down into four headings, although your complaint may not fall into every category:
1) Loss of value: the difference between the value of the holiday you paid for and the one you actually got
2) Out-of-pocket expenses: refund of any reasonable expenses you incurred as a result of the breach of contract
3) Loss of enjoyment: something to compensate for the disappointment and distress caused by things going wrong
4) Personal injuries (if applicable) for any personal injury incurred abroad, you are advised to seek specialist legal advice in relation to this.
In the case of unsatisfactory quality complaints there are no set guidelines as to the assessment of damages. In many of the reported cases the judge does not separate the damages for loss of value and loss of enjoyment, but awards an aggregate amount. The claims should, however, still be set out separately. Presenting the case in a detailed and logical format will facilitate an earlier settlement, and is likely to achieve a better settlement for you.