Which? Legal member Barry Robinson faced waiting up to four months to get his deposit back after a cancelled cruise. Barry booked to go on an American Waterways cruise, which was due to depart in September. He and his wife put down a deposit of £3,334 – with half paid directly to the operator, Fred Olsen Cruises, and the rest to a travel agent, Readers Offers Ltd (ROL). The pandemic meant the operator was forced to cancel the cruise in July, and it advised Barry to get in touch with ROL to request a refund. ROL said that it could take up to 16 weeks for the refund to be processed.
Barry benefited from protection under the Package Travel and Linked Travel Arrangements Regulations 2018. Under Regulation 13, when a package travel contract is cancelled, even for extraordinary circumstances, the customer is due a full refund. Regulation 14 also states that the refund is to be provided within 14 days of the cancellation date. A short delay would be tolerated, but a 16-week wait would be considered unreasonable.
We advised Barry to make a formal complaint to the travel agent and cruise operator, setting out his position under the legislation and to request that the refund be processed in a more acceptable timeframe. Just over a week later, he had received a refund of the deposit in full. ROL said: ‘At the time, we advised that refunds could take up to 16 weeks, but we were able to process Mr Robinson’s full refund in just over eight weeks. We sincerely apologise for the delay he experienced.’ Fred Olsen Cruises told Which?: ‘We have a ‘no quibble’ refund guarantee for cruises affected by COVID-19 and we promise to refund monies as soon as possible. Generally, this has been in under eight weeks, including the refund for this guest.’
Which? Legal member Brian Gratton was one of the thousands of would-be holidaymakers whose plans were interrupted by COVID-19. His £4,355 Riviera river cruise was cancelled on 15 April due to the pandemic.
Brian promptly wrote to Riviera requesting a full refund but received no reply (Riviera says it never received the letter). When Brian chased Riviera, it told him it would take up to eight weeks to process a refund and offered him alternatives. After Brian reminded Riviera of its legal obligations, it offered to refund him within five working days.
We told Brian that package holidays are governed by the Package Travel and Linked Travel Arrangements Regulations 2018, which says that if a tour operator cancels a holiday due to extraordinary circumstances, it must refund you within 14 days. Where your package holiday is cancelled, or if it can no longer be provided by the tour operator, it must refund you in full. We advised Brian to put this in writing as a complaint to Riviera to prove his right to a refund. Riviera’s Paul Green told Which?: ‘Once Mr. Gratton told us he wanted a refund it was paid in 11 days. Offering an £800 rebooking incentive and a refund credit note didn’t replace or delay the payment.’
In light of the pandemic, the body that represents tour operators, ABTA, advised its members to offer credit notes as an alternative to refunds. We found that many tour operators used this as a way to refuse refunds. We have received complaints about Riviera, as well as many other holiday companies, which refused to comply with their legal obligations.
A Which? Legal member got in touch after her booking for a cottage holiday coincided with the coronavirus lockdown. Although the trip was cancelled, the cottage company, Together Travel, told her it wasn’t able to give refunds and offered a voucher instead, which had to be used within one year.
The member was disappointed – the six-day retreat had cost her £1,300. As an NHS key worker, her annual leave had been cancelled indefinitely due to the pandemic and she was unsure when she might be able to rebook. But Together Travel still said it couldn’t refund her.
As the cottage was booked during lockdown, it was impossible for the contract to be fulfilled by the cottage company. We advised that under the Law Reform (Frustrated Contracts) Act 1943, the contract had become impossible to carry out and the member should receive a refund. We also advised the member to ask for their request to be forwarded to the owner of the cottage. Subsequently, the member received a full refund from Together Travel.
When you’re making a booking, check whether the company is acting as an agent. If its terms and conditions confirm that its role is as an intermediary, your claim is with the service provider. This argument is focused on the doctrine of ‘frustration’, which can be difficult to argue if there is a glimmer of hope that a contract will be fulfilled. Most contracts will also have specific terms, called a force majeure clause, that layout the way in which extraordinary circumstances will be handled. We approached Together Travel for a reply, but it declined to provide a comment.
Which? Legal member Bill Platts and his wife booked a 24-night package holiday to Johannesburg, Victoria Falls and Cape Town, plus a cruise back to the UK, in November 2016. It cost £12,498.
The Platts were left disappointed when they weren’t given time to explore Johannesburg as advertised. A last-minute hotel change meant they missed the luxurious steam-train ride they were promised, and were given drinks and canapés instead of the advertised five-course meal.
When the Platts contacted Imagine Cruising, the company said the events had been beyond its control. However, it offered a £60 goodwill gesture for the difference in price between the five-course meal and the canapés, along with a £100 voucher off a future cruise. Bill then contacted Which? Legal for advice.
Bill was advised that as they had booked a package holiday with Imagine Cruising, the company was liable for its failure to provide what had been advertised in accordance with The Package Travel Regulations 1992. As the Platts had experienced loss of value and loss of enjoyment, they would be entitled to compensation. Bill had sent several letters to Imagine Cruising to no avail; he ended up having to initiate court proceedings. Imagine Cruising settled the claim in full when it received the court papers, and the Platts received a cheque for £1,570.
When booking a package holiday, the consumer will be afforded protection in accordance with The Package Travel Regulations 1992. Regulation 15 holds the organiser liable for the proper performance of the contract by its suppliers. Damages for a ruined holiday can be difficult to calculate, but judges will regularly award compensation for distress and disappointment.
In 2010 the Court of Appeal in the case of Milner v Carnival Plc (trading as Cunard) set out a guide on the assessment of damages for distress and disappointment. Bill had asked Imagine Cruising to reassess its compensation in line with this case.
When Which? Legal member George Turnbull booked a seven-night cruise he never expected the ship would stay berthed in the same spot for three nights – or that the passengers would endure long minibus trips of up to five hours just to get to sites they wanted to see.
But that's exactly what happened when George and his wife booked a cruise on the River Ganges with holiday company VJV (Voyages Jules Verne) for £4,390.
In its brochure, VJV stated that customers would avoid frenetic road travel during the trip. On the first day, the ship did make a two-hour trip – a round trip back to the same spot it had sailed from. But there the ship remained for three nights. Instead, they had to take minibus rides of three to five hours on the roads they were supposed to be avoiding. In fact it was only in the late afternoon of the fourth day that they set sail again.
The passengers were told the reason the ship couldn’t cruise as advertised was because of a ‘turtle sanctuary’. However it wasn’t as if the ban had just been introduced – in fact it was a 20-year-old ban. They were offered no alternative holiday or refund. George sent a letter by recorded delivery to VJV, which said no compensation was due. George came to Which? Legal for advice.
We advised George to argue that VJV had breached its obligations under the Package Travel Regulations 1992, which apply to packages sold in the UK. These say that descriptions about package holidays mustn’t be misleading and that particulars in brochures are terms of a contract entered into by the consumer and the holiday companies. The holiday firm is responsible for making sure the contract is stuck to, even if another supplier carries out the service. You can claim compensation from the holiday company.
This is a rare exception to the general rule against claiming damages for stress and inconvenience in English law. Prior cases have established that for a ruined ordinary holiday you can generally claim a sum in the low hundreds of pounds, but special holidays have attracted claims of more than £1,000 and, for very special ones (such as weddings abroad), claims can run into several thousands. George pursued VJV as we advised. He was offered and accepted £1,200.
If you book a holiday, who is responsible if things go wrong – the travel agent or the company offering the holiday?
When Edgar Glucksman booked a 14-night cruise with a cruise company via a travel agent, the agent offered a deal that included free parking and $100 on-board credit.
But when Edgar visited the Cruise Relations desk on the last day of the holiday and asked for a copy of his account, he discovered that the promised credit hadn’t been applied.
The ship’s staff refused to credit the money, even though he was able to show them a copy of his booking invoice which detailed the $100 credit. The ship’s staff called the travel agent, which admitted that it had forgotten to advise the cruise company of the credit and said it would reimburse Edgar when he got home.
A week after the cruise ended, Edgar called the travel agent to find out why he hadn’t received a cheque for the $100 in question. He was told by the manager that the travel agent could not pay him the money as it no longer worked with that particular cruise company.
Edgar then contacted Which? Legal lawyers for advice.
We advised Edgar that his contract was with the cruise company and that it was legally required to honour the terms of the deal he booked with its agent. As it had refused to do so, he had a breach of contract claim against them for the value of the $100 credit he had been promised.
We advised Edgar to send a complaint letter to them enclosing a copy of his booking invoice as proof of the deal he had booked via its agent.
Edgar received a phone call from the customer services department at the cruise company thanking him for his letter. It advised Edgar that it would send a cheque for the equivalent of $100, which he then promptly received.
When you arrange a holiday contract via a travel agent, the travel agent will usually be acting on behalf of another company, in this case, the cruise company.
In legal terms, the travel agent will be the ‘agent’ and the company it is acting on behalf of is known as the ‘principal’.
If you’re buying a package holiday (this includes most cruise holidays), the principal is the party that your contract will be with and this is likely to be a tour operator or cruise company – even if you paid your money to the agent. In Edgar's case, this meant the cruise company was responsible for upholding the contract, not the travel agent.
On the rare occasions when the agent fails to advise you who the principal is, the agent itself could be legally liable for any breaches of the contract by the principal. This is often referred to as the ‘undisclosed principal’ rule.
One couple nearly missed out on a dream family holiday because of a mistake by a travel agent.
Bob and Nesta Nevatte had saved for a long time to pay for the £1,770 two-week holiday in Cyprus with their daughter and grandchildren. They booked the trip through The Co-op Travel Agency in Portsmouth to stay at a Thomson Gold Hotel.
The holiday was due to start on 12 July 2013 but when they got home with all their paperwork they realised that the shop assistant had mistakenly booked them for a holiday leaving on 12 June 2013. They returned to the travel agent the next day and a different assistant contacted Thomson to change the date. Thomson said it would only do this if the Nevattes paid an extra 50%, which it said was the cost of going on the holiday a month later, plus a booking fee.
Faced with the prospect of missing their holiday or paying extra for someone else’s administrative error, the couple called our lawyers at Which? Legal.
Our lawyers advised them to write a letter to Thomson asking it to change the dates of the holiday at no cost, as the error was made by The Co-op as Thomson’s representative. Thomson refused to put anything right, saying that it was The Co-op’s fault.
After further advice from Which? Legal, Bob went back to The Co-op Travel Agency. The travel agent said that since it had made the mistake, it would change the dates on the Nevatte’s booking, and agreed to pick up the cost of £302 imposed by Thomson.
Under the Package Travel Regulations, the tour operator is responsible for all aspects of a holiday. In addition, any terms and conditions in the holiday contract are subject to the Unfair Terms in Consumer Contracts Regulations.
The Office of Fair Trading has given guidelines for what would be considered an unfair term. For example, if a contract said that a customer would have to pay to correct a booking mistake that was made through the fault of the ‘principal’ (the tour operator) or ‘agent’ (the travel agent) it could be argued that such a term is unfair. If a mistake is made during the booking, the tour operator or its agent – the travel agent – should cover the cost of correcting it.
Which? members Frank and Janice Turner paid £2,420 to hire a villa for a family holiday, then found the British owner insisted on living in an outhouse during their stay. The Turners were looking forward to unwinding on their break in France after a busy year. But when they arrived at the villa on 10 August 2014, they discovered the boiler was broken.
The owner, who was there, said it had broken two days earlier and would be fixed the next day. For hot water, she suggested they boil kettles or use a sink in an ‘outhouse’ at the end of the garden that ran off a different boiler.
They were disappointed, especially as their two infant grandchildren were with them. The owner said she’d spend the night in the outhouse to make sure the boiler was repaired the next day. It wasn’t fixed and, nearly nine days later, the owner was still in the outhouse and asked if she could continue to stay there until the end of their fortnight’s holiday. The boiler was not fixed until 18 August. To add insult to injury, the Turners discovered a review on the Homeaway website, where they had found the villa, from people who’d stayed there before them and who said that they also hadn’t had hot water.
We advised Frank and Janice that, as the owner had been aware of the issues with the boiler long in advance of their arrival, she should have fixed the problem or informed them about it and given them the chance to cancel. As she hadn’t, they were entitled to claim any loss of value, loss of enjoyment and out-of-pocket expenses they suffered because of her breach of contract.
To avoid having to take court action, the couple were prepared to accept £2,500 in full and final settlement. They made this offer in a ‘without prejudice’ letter – this meant that if matters went to court, the letter could not be submitted as evidence against them. The £2,500 represented half the cost of the villa rental, the ferry crossing and some compensation for loss of enjoyment. The claim was settled without legal action.
Under Section 13 of the Supply of Goods and Services Act 1982, a supplier must carry out a service with reasonable care and skill. If the contract is broken, the defects should be put right at no cost to the injured party, within a reasonable time, and without any significant inconvenience. Where they are not, the consumer can claim compensation.
Which? members John and Eileen Andrews won back £1,162 with help from our legal experts when their 14-night cruise was cancelled without their knowledge.
The couple booked a £3,912 Scandinavian and Russian cruise, including an unlimited drinks package worth £768, with Thomas Cook.
They paid a £300 deposit to Thomas Cook and were sent a booking confirmation by cruise operator, RCL Cruises Limited, which said the balance was due eight weeks before the May 2013 departure. Thomas Cook said it was due 17 weeks before and sent a reminder, but the couple relied on RCL’s booking confirmation as it was in line with other cruises they’d been on.
John went to pay the balance on March 21 and found that Thomas Cook had cancelled the booking two days earlier. It had tried to call them but left no message, and it also didn’t email or write to say what it was going to do.
John and Eileen contacted RCL, which refused to reinstate the holiday, claiming the contract was between the couple and Thomas Cook. It let them rebook, but without the drinks package.
The couple went on the holiday, and complained to RCL and Thomas Cook when they got back. RCL offered £400 in vouchers for a cruise, which they rejected. Thomas Cook didn’t respond.
We advised John and Eileen that their contract was with RCL, not Thomas Cook. They wrote to both saying they intended to make a claim in the county court. RCL said Thomas Cook was at fault, and Thomas Cook failed to respond. The couple claimed for the loss of the drinks package and drinks bought on the cruise. RCL said its conditions were valid and Thomas Cook cancelled the cruise in error. Thomas Cook offered to settle for £1,162 and no further action was taken against RCL.
Thomas Cook had no right to demand payment outside the conditions of the RCL contract. By cancelling, it breached an implied term in the holiday booking contract. Under The Supply of Goods and Services Act 1982 a service must be provided with reasonable care and skill. It also breached Abta’s code of conduct by failing to respond to the couple. Abta members must acknowledge complaints in 14 days and send a detailed reply, or explain why there’s a delay, within 28 days. See abta.com/about-abta/code-of-conduct.
Which? Legal member Valerie Jackson booked a luxury family holiday to Tunisia to celebrate her husband’s 60th birthday – only for the booking agent to cancel it five days before the flight.
Valerie paid £4,348 to Thomson Holidays for the couple, their three sons and partners to stay for a week at a four-star resort.
When Thomson Holidays said that the trip couldn’t go ahead, she asked it to provide an alternative holiday. She told the company that the family could be flexible on the dates and the airport they flew from. However, Thomson couldn’t provide an appropriate alternative and the cost of the holiday was refunded.
Valerie asked for compensation. The response was a £280 voucher, which she returned saying she expected appropriate compensation.
Valerie spent three months trying to resolve the matter, but a suitable outcome couldn’t be reached, so she contacted Which? Legal for advice.
Our lawyers advised Valerie to give Thomson a final chance to reach an agreement. This prompted a response from the company, although it simply repeated what it had said before.
Which? Legal advised on issuing proceedings for breach of contract, seeking £3,500 damages for the family.
Thomson then offered £1,000 in settlement. After further contacting our lawyers again, Valerie said that she believed Thomson had already had a chance to negotiate, and as such she would seek a decision from the court. Thomson then decided to offer £3,000 plus £73 court fees, which Valerie accepted.
In a breach of contract claim, damages are usually limited to financial loss, such as the cost of a holiday. Compensation for inconvenience isn’t usually recoverable. But if a contract’s purpose is relaxation or enjoyment, you can claim for loss of that enjoyment. In this case the obligation was to provide the holiday, which Thomson failed to do. It’s difficult to put a price on a holiday’s benefit, but the court may take into account how important the occasion was when making an award.