Cancellation by customer. Going to Court for my money **WON**

[mutley2007]

I hope some of you may be able to give some advice on my battle with First Choice over a cancellation issue? Excuse the length of the following text but this has got very INVOLVED as I am already at the Court stage:

I booked a holiday this year at short notice with a view to travelling only ten days later. Unfortunately I had to cancel the entire trip due to personal circumstances that manifested themselves some days after booking. First Choice predictably refused to refund any of the full cost of the holiday that I had paid. This would be accepted and understandable under the circumstances, if it were not for the following:

When I booked, I did so the day after my initial visit to their store whereby a very short conversation was had with their staff member where no information was imparted to me at all. When I actually booked and paid (therefore making the contract) I did so over the telephone by credit card on the basis of being informed of cost and travel timings and accomodation only. Accordingly no cancellation terms or penalties were imparted to me 'pre contract' which I now contend makes their written terms and conditions (which i never saw) irrelevant and so my monies should be refunded due to their failure to make these t's and c's part of the contract that I in reality, entered into.

First Choice are playing the 'its not us, we are just the agent' card and are passing any responsibility 'buck' to the tour operator. But, I was never told of any third party or tour operator and so this potentially becomes (as I have discovered from my research to date) a matter of Undisclosed Principal, which renders them liable in common law and therefore under the Package Travel Regs, I hope.

I have been to Court once so far and used the foregoing representations and am now due back there following an adjournment by the Judge for further case law and info gathering (Hone vs Going Places etc), in order to assist the technicalities and legal principles. They have employed a Barrister and I am 'in person'. David and Goliath and all that....

Any tips?

[NFMac]

Hone v Going Places is the undisclosed principle case on which you're relying but - I think - that in that case it was still deemed that 'normal' terms and conditions would apply whether GP were the principal or not.

 

The general principle is that even if you can argue that you were not made aware of the specific terms and conditions, it's reasonable to assume that some terms would apply.

 

Would one be that you can't get your money back if you choose to cancel?

 

That would be up to the judge to decide. My money's firmly on it being very reasonable for such a term to exist.

 

Indeed...you say at the beginning that First Choice 'predictably' refused to refund any cancellation. My only tip would be that language like that would suggest that you expected such a term to exist.

[mutley2007]

But from a consumer's point of view, perhaps not a lawyer's, the balance of obligation must be on the part of the company i presume? I hear what you say as regards the contractual element however Reg 9 of the PTR does state that the penalty for non disclosure of terms (preferably in writing where possible) is the ability for the customer to then cancel accordingly. Does that mean that further to that cancellation, given that no terms were disclosed as such, monies should be refunded in full? Assuming your contention that there are assumed or implied terms, there must be a steer on what those terms should state or else I guess that any scale of cancellation charges could be used 'post contract'? That woudln't be in the interests of the consumer which the PTRs are there to protect.

[NFMac]

But I'm assuming that the written terms would have been available if you'd asked to see a copy? That's the obligation under the Package Travel Regs.

 

The fact is that businesses and consumers make contracts without reference to specific terms. You chose to do it as much as the travel agent.

 

Just because they didn't say, 'hang on, don't book, here are the specific terms and conditions. Have a read and then phone us back' doesn't mean - to my mind - that no terms apply.

 

I would say that it is almost universally known that package holidays cannot be cancelled without incurring charges and that it's perfectly standard for cancellation charges to be 100% very close to departure. That's one of the reasons why travel insurance is sold and also why very expensive fully-flexible business tickets are available.

 

I'm also unsure why you think that a refund should be offered even if you can argue that no terms at all applied to a booking. Standard contract terms don't allow for cancellation or refund if one party changes their mind (or if personal circumstances change).

[mutley2007]

My interpretation of Reg 9 of the regulations is somewhat different as i believe them to state that the terms MUST be provided.

I also hope that the Court will view matters from the point of view of a consumer who has no obligation to be armed with belief, buying experience or any knowledge of contract law, after all, and the 'almost universally known' in your previous message is key to that perhaps? We will see. Thanks for responding.

[mutley2007]

I won. Just had judgement in my favour due to First Choice's breach of Regulation 9 of the Package Travel Regulations. I proved that they were liable as the travel agent by way of Undisclosed Principal. A full refund of my £3120.00 was ordered by the Judge. More details if anyone wants them......

[wanderingsoul]

Well done Mutley! Score for the Consumer!

 

I would love some further info on how you achieved it. I am a backpacker, so always booking, changing, cancelling etc etc. I fully agree with you that agents never make it clear of their terms. All terms should be shown clearly before booking - weather it be common sense or not. Obviously this is a huge issue that consumers go through all the time. There should be a regulation that states that agents MUST show you the terms, and the customer MUST sign and agree to these terms.

 

How would this be unfair at all?

 

I try to book directly via the airlines now as I have had far too much trouble with agents trying to get every red cent. Never again!

 

Well Done again!

[mutley2007]

The crux was that tehy failed to divulge their terms and conditions before taking my money (over the telephone by credit card). This meant a breach of the regulations and also meant that i was legally unaware of their cancellation terms prior to entering into their contract. This possibly has implications for the whole travel industry as many holidays are booked by payment over the phone and you can bet that most agents dont follow the regs as they are set out. A refund is then due if they dont adhere to these rules and you decide to cancel before travel.

[Bookworm]

That is EXCELLENT news, thanks for letting us know! I'll change your title, more people should be made aware of this.

 

Congratulations to you!

[fuzzylittlethings]

Hi there im in the same situation as you. I booked a holiday and a paid a low deposit, cancelled the holiday 14 weeks beofre departure thinking nothing of i and now im getting paperwork almost everyday from them saying there taking me to cor for the £350 deposit. The company is phoning me at least 5 times a day and sends me letters with the envelopes saying 'BAD DEBTOR' and 'DO NOT IGNORE - VERY URGENT; the postman must think im crazy. Ive writtent to them adivsing i was not made aware of there terms and condition under the travel regs but they deny that saying they posterd them out, which they sen two supid bits of paper mainly about insurance and I NEVER signed or sent back cos I cancelled by that time. Whats my next action to take?

[clairus99]

writing 'bad debtor' on the front of their envelopes is a bit dubious... isn't that libelous?!

 

im just trying to research the £50 fee that first choice want to apply because we want to change a name on the booking (which is why havent got my own thread on it yet!). it looks like i signed something to say that with changes charges 'may apply'.... i looked at their t&c's online too and it doesnt specify an amount or breakdown. on another thread i see the argument about how it's a commercial business (when comparing with banks... tbh i dont get that but anyway) but they are holding you to ransom. do i lose the £50 or £130 deposit for the person who doesn't go, out of principle. truthfully i want to cancel the whole damn thing now, this has really soured me (i usually book everything direct and dont use travel agencies for this kind of reason) but then we'd lose around £180 each.

 

sorry went off the point....

 

mutley i think my situation is certainly in the same postcode as yours as i did not get an actual t&cs just their 1-page "Important Customer Information", which I signed, saying that i 'accept' their conditions, etc. they didnt tell us anything in the shop, but i can't prove that. am worried as well as i only have the same kind of information (or lack of it!) that you were given. i knew of no third party until today when i tried to get the name change and questioned the charge - tbh i still dont really get it, and no-one is giving me any answers. the people at the shop just threw the phone down on me when i asked her not to be so argumentative.

Edited July 29, 2008 by clairus99
typo

[mutley2007]

Hi there im in the same situation as you. I booked a holiday and a paid a low deposit, cancelled the holiday 14 weeks beofre departure thinking nothing of i and now im getting paperwork almost everyday from them saying there taking me to cor for the £350 deposit. The company is phoning me at least 5 times a day and sends me letters with the envelopes saying 'BAD DEBTOR' and 'DO NOT IGNORE - VERY URGENT; the postman must think im crazy. Ive writtent to them adivsing i was not made aware of there terms and condition under the travel regs but they deny that saying they posterd them out, which they sen two supid bits of paper mainly about insurance and I NEVER signed or sent back cos I cancelled by that time. Whats my next action to take?

 

Do they concede that they 'posted them out' but presumably after you paid your deposit? Was the deposit paid over the phone?

[mutley2007]

Hi

 

Did the terms and conditions mention the tour operator/ a separate holiday firm? Depending who the travel agent is, many of them are travel agents and the tour operator anyhow.

On teh one hand, signing the T's and C's (even if you havent read them) acknowledges that you have read them and shows acceptance of them. there is lots of precedent relating to such circumsyances.

But, on the other hand, if the terms elude to a host of anonymous and amiguous conditions such as ' all conditions wherever they may be contained' then you may be able to argue that it is not binding to seek to hold you to conditions that you could not possibly be aware of.

This all very much depends on what your contract says.