Consumer Protection
Package Holidays or Independant Travel
As the summer holiday season is nearly upon us again many of you are avidly flicking through brochures, searching the internet and deciding what is the best deal for that perfect summer holiday.
Over recent years many holiday makers have opted to use low cost airlines and make separate hotel bookings directly with hoteliers or online agents rather than purchasing a traditional package holiday through well known tour operators to save money and create flexibility. However, do they know that in doing so they are throwing away protection that is afforded to package holiday makers?
Independent arrangements are not covered by The Package Travel, Package Holidays and Package Tours Regulations No 3288 of 1992 (“the Regulations”). In order to obtain the protection afforded by the Regulations your holiday must satisfy the following definition:
“A 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 time more than 24 hours or includes overnight accommodation”
The components mentioned are transport, accommodation or other significant services.
Included within the definition are arrangements put together by a travel agent according to the specifications of the consumer, covering tailored standard packages as long as one organiser/retailer arranges it and one price is paid to the organiser, creating one contract. Using links to other web sites when booking low cost flights or clicking through to the hotel section of that particular website, does not fall within the definition. Two contracts would exist, one with the airline and one with the hotel company.
So what protection do the Regulations give?
The Regulations provide wide reaching protection on all aspects of “package” travel, the most notable of which are those contained in Regulations 4, 5, 14 and 15. Following the awful Tsunami disaster, these provisions were really set to work providing protection and assistance for many holiday makers while unfortunately those who had opted for independent travel were left to make their own independent arrangements.
Regulations 4 and 5 relate to the descriptions of holidays provided by organisers/retailers within their brochures. These must provide legible, comprehensible, accurate, adequate information in respect of the holiday including (amongst others) the destination, transport used, accommodation, meals, itinerary, passport, visa and health requirements, cost and payment terms. It must not be misleading in any way. Failure to do so is an offence and the retailer will be liable to a fine.
Regulation 14 places a liability on the organiser of a package holiday where, after departure, a significant proportion of the services contracted for are not provided or the organiser becomes aware that they will not be able to be provided. In this situation suitable alternative arrangements at no extra cost must be provided to the consumer together with compensation for any difference between the services contracted to be provided and those actually provided. If, alternative arrangements cannot be provided or are reasonably rejected by the consumer, the organiser will where appropriate provide the consumer with equivalent transport back to the place of departure or another place if the consumer has agreed and will compensate the consumer for any loss suffered.
Regulation 15 goes one step further in that the organiser of a package holiday is liable to the consumer for the proper performance of the obligations under the contract irrespective of whether they are to perform those obligations personally or through a third party. The organiser is liable for any damage caused to the holiday maker as a result of their failure to perform their obligations unless it is not their fault i.e. the holiday maker causes or contributes to the damage themselves or it has occurred as a result of a force majeure like the Tsunami.
For example, if a holiday maker is under the influence of alcohol and dives into the shallow end of a swimming pool causing serious personal injury it is unlikely that a Court would place liability upon the tour operator even if the tour operator failed to provide adequate warnings around the swimming pool. However, gone should be the days when, you have the fear of being met upon arrival at your chosen destination and rather than having that perfect summer setting with facilities to satisfy all your needs you are met with a large building site outside of your balcony, a swimming pool full of rubble and only a small sandwich bar.
Tour operators must tell you of any building works on site and if this affects a significant proportion of the services contracted for or prevents the proper performance of the obligations under the contract, the tour operators would be liable. Potentially they would be liable to a fine if they failed to inform you or provided misleading information.
Even where, like in the Tsunami, a force majeure situation prevents the proper performance of the contract and therefore places no legal liability upon the organiser, Regulation 15(7) steps in and provides a legal duty to “give prompt assistance to a consumer in difficulty” and where this is done, there is also an entitlement to compensation.
However, where arrangements have been made and fall outside of the package holiday description any problems encountered would have to be dealt with separately based on the contracts entered into and the duties expected in the performance of those contracts. This carries with it, its own problems.
Therefore, although independent travel can have its advantages in terms of cost and flexibility, care should be taken before booking to ensure that much forethought has been given to what is lost in doing so and alternative measures are put into place to seek to provide as much protection as possible in the event of problems occurring.
Marianne Johns
Lemon & Co Solicitors
This article gives a general view and cannot be relied upon in any particular case. The need for specific legal advice must always be considered. For further information, contact Marianne Johns by email on marianne.johns@lemon-co.co.uk or alternatively, please visit our website at www.lemon-co.co.uk for articles on other legal issues.
If you would like to receive more information from Lemon&Co and be kept up to date with legal and statutory updates please register here.
Link to this article:
If you wish to link to this article, please paste the follwoing code into your web page:
<p><strong><a href="http://www.lemon-co.co.uk/article_package-holiday.php">Consumer Protection
Package Holidays or Independant Travel</a></strong><br />
Over recent years many holiday makers have opted to use low cost airlines and make separate hotel bookings directly with hoteliers or online agents rather than purchasing a traditional package holiday through well known tour operators to save money and create flexibility. However, do they know that in doing so they are throwing away protection that is afforded to package holiday makers?...</p>