Holiday cancellations are in the news given the issues with travel to Sharm el-Sheik.
Package holidaymakers are protected and can expect a full refund or an alternative holiday if Foreign Office advice prevents them flying to Sharm, but people who have booked independently may lose money. They should be able to transfer their flights, but if they have booked accommodation separately they will almost certainly be charged if they are unable to go to Sharm. In some cases the cancellation fee can be 100% of the cost of their stay. It really does depend on the terms and conditions of individual hotels at the time the booking was made. Also, most travel insurance policies will still provide cover for holidaymakers in a country at the time of FCO advice change.
We are frequently asked to mediate in relation to package holiday complaints so this guide may be of help.
Holiday complaints are particularly well suited to mediation as holidaymakers do not want to have to spend time going to the small claims court and tour operators want to resolve cases rather than become embroiled in litigation as well. It is often possible to find a way through to settle at a reasonable figure.
The first thing to establish is whether the holiday is a “package” holiday. Assuming that it is, what can the holidaymaker claim if the holiday is not as good as expected?
In mediations the function of the mediator is not to give legal advice but often parties will not have had access to advice and so are mediating “blind.” As part of the process the mediator will explore the best and worst alternative outcomes which involves looking at what the outcomes might be.
The mediator often has to work hard to help the parties to consider their expectations. For example, the holidaymaker will often want a complete refund, whereas a Court is unlikely to award this so it is unlikely that this will be offered. It is rare that a holiday has been completely ruined. In order to resolve the dispute the holidaymaker needs to take into account what would be recovered in Court – the best and worst alternative options, as with all mediations. Nowhere is it more true that a bird in the hand is worth more than in the bush! There are limits to what you can expect in compensation and people frequently have unrealistic expectations.
If you buy a package holiday the tour operator needs to comply with the following regulations:-
Regulation 4:- states that no travel organisers can supply consumers with misleading information.
Regulation 5:- requirements as to brochures. In particular, the brochure must be ‘legible, comprehensible and accurate’ regarding the price and the information provided.
Regulation 14:- 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, 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.
A holidaymaker’s worst nightmare is often finding out that builders are working around the hotel. The Regulations apply to this also. If the tour operator is a member of Abta, then the Abta Code of Conduct will bind them.
If the tour operator becomes aware of building works, which may reasonably be considered to seriously impair the enjoyment of travel arrangements, it must notify clients of the situation without undue delay.
The operator must provide the clients with accurate information about the extent of the building works and offer them the opportunity to transfer to alternative travel arrangements.
If you want to claim compensation for a package holiday, damages in travel claims can usually be broken down into four headings:
1. Loss of value – This is the difference between the value of the holiday you paid for and the one you actually got.
2. Out-of-pocket expenses – Any reasonable expenses you incurred as a result of the breach of contract
3. Loss of enjoyment -Compensation for the disappointment and distress caused by things going wrong
4. Personal injury – Compensation for any personal injury incurred abroad.
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 case of Terence Milner v Carnival Plc 2010 is a case in point which concerned a cruise of a lifetime. It was explained in this case that damages for honeymoon cases and ordinary family holidays rarely exceed £2,000. That is the top level. When judges look at these cases they often have in the back of their minds the yardstick of personal injury claims so they are unlikely to award more than someone would get for a personal injury that results in many months’ loss of amenity pain and suffering.
Damages are higher when holidaymakers are planning to marry on holiday, for example. A special occasion ruined is worth more than a “normal” holiday.
In a run of the mill case damages ranged from £83-£1876. If you were offered free alternative accommodation by the tour operator, then your loss will be minimal. There are some things that are outside the tour operator’s control, like the weather!Disclaimer: The information and any commentary on the law contained in this article is for information purposes only. No responsibility for the accuracy and correctness of the information and commentary or for any consequences of relying on it, is assumed by the author. The information and commentary does not, and is not intended to amount to legal advice to any person on a specific case or matter. The article was written on the date shown and may not represent the law as it stands subsequently. For the avoidance of doubt, the views in this article are personal to the author and not attributable to any other individual or organisation.