What constitutes a package holiday?
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Many will be familiar with Teletext Holidays. Through its website, Teletext offer discounted holidays for sale.
The consumer then has to pick up the phone and complete the booking with a third party travel agent. It is rarely clear at the time of booking that the consumer might actually be entering into a contract with the airline, hotel and transfer supplier directly, rather than booking a package holiday in the traditional sense. The booking documentation that follows tends to reveal a complicated set of arrangements with various vouchers and tickets being provided to the consumer ahead of their departure.
The importance of whether an individual has booked a package holiday comes into play if something goes wrong while they are abroad. The Package Travel, Package Holidays and Package Tours Regulations 1992 (the 1992 Regulations) make a tour operator liable for the acts or omissions of its suppliers (airline, hotel, local bus company etc.) where there is a failure to exercise reasonable care and skill. Whether or not there is a failure is judged against local standards or regulations in the Country where the holiday takes place. The consumer, however, has the added protection of being able to pursue the tour operator in the English Courts where higher damages and a more beneficial procedure apply.
While staying at a hotel in Cyprus, Mr Titshall was badly injury when the balcony door to his room shattered. He issued a claim against Qwerty Travel on the basis it was liable for the poor performance of the holiday contract under the 1992 Regulations.
Mr Titshall had booked his holiday on a last minute basis and in response to an advert on the Teletext Holidays page. The holiday advert offered flights and hotel accommodation at an all inclusive price. To complete the booking Mr Titshall had to speak with a Qwerty Travel representative. It was truly a last minute holiday as he was due to depart the following day at 8.30am.
Qwerty Travel claimed it was merely acting as booking agent and there was no package holiday as the flights and hotel accommodation were booked separately. It claimed this was evidenced by the booking documentation, which showed First Choice as the flight provider and Hotels4U.com as the accommodation provider.
In a victory for consumers, the Court of Appeal found Mr Titshall had booked a package holiday with Qwerty Travel and that it could potentially be liable under the 1992 Regulations. In this case the Court was persuaded a package holiday existed because:
- During the 12 minute booking telephone conversation it was not suggested to Mr Titshall he could book the flights and accommodation separately;
- The booking documentation showed a service cost which was linked to the flights and accommodation being sold together and not separately. In the absence of any other explanation for this cost, it suggested Qwerty had sold the components as a package and
- The booking was made in response to a Teletext advert offering a last minute holiday at an inclusive price.
Tour operators and travel agents are increasingly setting up complex chains of contractual relations to minimize their exposure to liability if things go wrong while the consumer is in resort. This case shows that the Courts will delve into the background and context in which the holiday booking is made. Consumer perception is key. This is why it is important, where possible, to keep detailed notes at the time of booking.
Mr Titshall's poor recollection of what went on at the time of booking probably helped him. All he wanted was a last minute holiday to Cyprus. The scheduled departure time was early the following morning and he was not intent on questioning the arrangements and quizzing the Qwerty Travel representative to see whether more suitable arrangements might be available by changing, swapping or altering the constituent parts of the holiday.
This is a fact sensitive area of law and whether an individual has booked a package holiday will differ case by case, depending on the circumstances of the booking.
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