Portland Direct

[mooo_ella]

Morning All.....

 

Just A Quick Question, Last Year I Paid A Low Deposit Online For A 2 Week Holiday To Bulgaria With Portland Direct......

 

To Cut A Long Story Short - I Didnt Want To Go And Cancelled The Booking...... Had A Letter To Say That I Needed To Pay The £300 Which Was The Rest Of The Full Deposit (only Paid £70 Online To Secure The Place)

 

I Have Had Today A Letter From Solicitors Demanding The Full Cost?

 

Do I Have To Pay This Full Deposit? Can I Say Anything To Get Myself Out Of This Charge - I Really Dont Want To Pay Nearly £400 For Something I Havent Had, Or Signed For!???

 

Help Meeeeeeeeeeeeeeeeeeeeeee

[MAGZY]

You are covered under the unfair contract terms i.e it's a penalty for "breach of contract" where the fee for this has not been agreed in advance - so it must be a reasonable one. You may want to remind them of this and tell them politely to stick it. The worst that can happen is for them to take it to to the small claims court where you will be able to defend it most vigourously with case law (repost on here if they do that) You will find that the balance of opinions is hugely stacked in your favour - causing them to drop it but they will most likely give up at the first letter you send them.

[mooo_ella]

Thanks ever so much, i have sent a letter with your advise and returned their demand letter along with it...... Hopefully they will back off, there is no way I can pay that amount this side of christmas:eek:

[MAGZY]

Just to reiterate, Don't cave in to their demands.Send them a letter saying "Dear Sir,Thank you for your letter dated xx/xx/xxI understand that you are wanting £xxx in addition to £70 in respect of holiday to bulgaria ref xxxxxPlease be aware that this £xxx charge is in fact a penalty charge for cancelling the agreement we had between ourselves whereby the charge far exceeds the loss caused by cancelling. This is in fact unlawful under The Unfair Contracts Terms Act 1977. Furthermore, if this £xxx charge is a fee for a service then it must be reasonable under section 15 of The Supply of Goods and Services Act 1982 I appreciate this was not the answer you were hoping for but you do have the right to take this further in a court of law.Yours faithfully"This is given in an inofrmal basis only - but it will make 'em think twice about setting a precedent and disclosing all their costs in court.They bank on a percentage of people paying the cancellation charge and they know that some people will pay it when they don't have to. Personally I would even go as far to say that you want some of your £70 back and that you will take them to court over it if they can't prove that it is a reasonable cost. But that's just me me :)If they claim againist you (highly unlikeley) then repost on here for further advice.

[mooo_ella]

wow - superb letter, ive screwed mine up and practically copy & pasted yours!!!

 

Thanks for that:D

[mooo_ella]

now im worried - had a reply letter from Newman Debt Collection Agents saying

 

We refer to the letter we received from you on the 3rd Nov

 

Following instructions from our client we can advise you of the following.

 

We write to advise you that you have entered in to a legal and binding contract. This contract is subject to a number of terms and conditions, one of which is that you are liable for a percentage of the holiday cost, should you cancel within a certain frametime.

 

Further to this we will quote the Office of Fair Trading report of April 2003, "Cancellation charges levied in sample periods between 1998 and 2001 have not shown to be disproportionate. Following a two year in-depth analysis, the Office of fair Trading has concluded that the income generated from cancellation charges in the periods examined does not appear to be disproportionate to the overall company losses the operators incurred from cancelled holidays and flights. The office of fair Trading take the view that the tour operators cancellation charges represent no more than a genuine estimate of companies losses overall"

 

Further to this the terms and conditions are clearly listed in the booking brochure and the written booking confirmation you would have received. OUr client holds no responsibility if you fail to read them. In light of this I will hold your account seven days for an immediate payment in full. Failure in this will leave us no alternative but to pass the matter back to our client to proceed with the isue of leage action without further notice

 

we now leave this matter in yours hands

 

signed... Mrs Wainwright!!!!!

 

ARRRRGGGGGGGGGGGGGHHHHHHHhhhhhhhhhhhhhhhhhhh now what do I do!!!!

 

I cant afford to pay that:shock: someone please help me

 

(excuse any typos i dont have a scanner so ive just copy typed the letter)

[MAGZY]

Rest assured that they are only trying to scare you off court action. And they seem to be doing just that judging by your reaction!

 

However, all is not lost.

 

Firstly, their OFT quotes are from 5 years ago - meaning that in the last 5 years, the charges could be unreasonable.

 

Secondly, their quoting the OFT ruling faild to highlight a few important points in that report:

 

"Term 1 ("Our agreement") had allowed the company to levy a

cancellation charge for failure by the consumer to pay the balance of the holiday price eight weeks before departure, while giving the company discretion over when to regard the cancellation as having occurred. The term was amended to provide expressly that the company did have discretion to charge the amount set out in the cancellation scale if the period for payment was extended at the consumer's request. However it was considered that the term could be used to charge more than the deposit if the consumer failed to pay by the due date without the period being extended at his/her request."

 

Report here:http://www.oft.gov.uk/NR/rdonlyres/18BED3C2-385B-434D-BC00-9FE7BC771C33/0/oft720.pdf

(Do a search for "cancellation" in this PFD and read through some of the OFT rulings)

 

In any case, it still remains that Portland holidays have unfair terms in their contracts. In that you have to pay for all of the cost of the holiday - when in fact you don't!

 

The Unfair Terms in Consumer Contracts Regulations (UTCCRs) came into force on 1 October 1999 and replaced the 1994 Regulations. The regulations implement an EC Directive (EC Directive 93/13) in the UK. UTCCRs apply to standard contract terms used with consumers in contracts made after 1 July 1995. The Regulations say that a consumer is not bound by a standard term in a contract with a seller or supplier if that term is unfair. They also give the OFT and other Qualifying Bodies powers to stop the use of unfair standard terms, if necessary by obtaining a court injunction.

 

Ultimately only a judge in the County Court can decide whether a term is unfair - and not Portland direct's solicitors (they can merely only express their 'opinion')

 

My ninjalike googling has brought this OTF test case to hand:

It concerns virgin holidays and their unfair terms and conditions many clauses which were forced to be changed in march 2003.

 

OFT press release: fairer contracts from Virgin Holidays

 

May I draw your attention to the following paragraph:

 

"[the contract] Allowed the company to cancel the holiday, retain the deposit and charge a cancellation charge if the consumer failed to pay the balance of the holiday by the due date. The term also gave the company discretion as to the exact date of cancellation, giving them control over the level of cancellation charges levied. Change - the term now states that if the balance of the holiday is not paid by the due date, the booking will be cancelled and the consumer will forfeit the deposit only."

 

Write back to portland direct solicitors and quote this above.

(PM me if you need a letter writing)

 

Also state that you are willing to go to court to get ALL of your money back and force them to change their terms and conditions in accordance with the OFT ruling.

Plus costs (£30) and all of your expenses. You have opinion that the terms and conditions are unfair. (and they are in my opinion)

Untimately, only a judge can decide if it is.

 

If PH are sensible then they will back down, if not then go ahead with the court action. File a claim in the County court for £30 requesting all of your money back plus costs. One of 2 things will then happen.

 

a) the judge will rule against you...(very very unlikely) and you pay the money back but don't have to pay their costs because it's a small claim.

 

b) the judge will rule in your favour and you will get most of your money back plus your reasonable costs AND PH have to change their terms and conditions so that tyhis will never happen to anyone else again!!

 

Unfortunately, the corporate animal being what it is, they will want their money come hell or high water! But thank God that you live in England, the land of the free where you can use the court system to take on the corporate lions - and WIN!

 

Keep us posted on this, and don't pay them a penny! I will be most intrigued as to what they say after reading your next letter...

 

Magz

[mooo_ella]

Thanks Magz, you're slowly turning into my hero!!! I shall draft a letter this afternoon and get posting.

 

Thanks again, a bit of encouragement from this site really does give me confidence

[Bookworm]

Magzy, you do realise that it's not a cancellation charge, but the rest of the deposit that they're asking for? Your ninjalike googling seems to me to confirm that OP is in fact liable for the deposit...

 

You are also misleading the OP in the matter of the small claims court. If they issue claim and OP loses, she will have to pay the money plus the court fees AND the solicitor's fees for issuing the claim (not for going to court), and that alone can be upwards of £150. She will also have got herself a CCJ, the only way to mark as satisfied and not hamper her for 6 years, is if she then pays up IN FULL within 30 days of judgment.

 

If OP wins, she'll come out of it with not having to pay the extra money, hardly any hope whatsoever to get the £70 back should she consider trying that, and I would in fact strongly advise for her not to even try, and possibly reasonable travel expenses, depending on the judge.

 

I think there is every chance they will pursue OP in court, and have a very strong chance of winning. The OFT quote is not from 5 years ago, but 3, and a judge is very likely to accept that a 2-3 yrs enquiry by the OFT has some weight.

 

I also would strongly advise against OP starting a claim for the £70 to pre-empt the other side's lawsuit, as she is then laying herself open to costs for bringing on a vexatious and frivolous lawsuit, when it is quite clear she would have gone on the attack so as not to have to defend the other side's claim. All they have to do is counter-claim, and bring to the attention of the judge that OP didn't make the slightest attempt to reclaim the £70 until they approached for the balance of the deposit.

 

I wish I has seen this thread from the start, as I certainly wouldn't have advised OP to tell the other side to "stick it". Unfortunately, I fear it may be too late now...

[MAGZY]

Just out of interest, how much was the total cost of the holiday?

[MAGZY]

Bookworm,

In that case, there is then the question of weather the £70 is all of the deposit or not.

 

According to chambers english (UK) a deposit is:

 

"deposit verb (deposited, depositing) 1 to put down or leave something. 23 to give (a sum of money) as the first part of the payment for something, so guaranteeing that one can complete the purchase later. to put (money, etc) in a bank, etc, for safekeeping or to earn interest. "

Chambers Reference Online

 

So in effect if £70 has alreay been paid and this is the first payment, then, by the definition above (and by default), any subsequent payment cannot consitute a 'deposit' because the first payment has been made. Further payments to this £70 cannot be anything of the sort.

 

Further payments can be 'installments' or 'balances', but a 'deposit'?

 

It has to be said that the 'charge' is still unfair but you may be able to stick a thorn in PH side by also disputing what their definition of 'deposit' actually means - if the judge is to take advice from Chambers dictionary then the remainder (£300) is a punitive charge for cancelling the holiday.

 

I have to agree with bookworm for not asking for the £70 deposit back.

If you are to go ahead with this you will have to wait until they take you to court and then submit a defence.

[Bookworm]

I Didnt Want To Go And Cancelled The Booking...... Had A Letter To Say That I Needed To Pay The £300 Which Was The Rest Of The Full Deposit (only Paid £70 Online To Secure The Place)

 

 

Bookworm,

In that case, there is then the question of weather the £70 is all of the deposit or not.

 

I think that is it highly likely the contract will somewhere state that the deposit is a certain percentage or set sum, which will be suficient for the other side to establish that OP accepted this when "securing the place". If one needs to use Chamber's dictionary to argue a point of law in small claims, one is in trouble, as we're now taking of splitting hair, and a judge is unlikely to take kindly to that, IMO.

[MAGZY]

In that case, we need to see the wording of the contract and know the total value of the holiday (plus surcharges).

 

can you post it on here?

[mooo_ella]

i threw it all away months ago - when i cancelled, the £70 was the deposit I paid on my card, they are now asking for full deposit which is showing as £422 on the letter from the baliffs......

 

The total amount of the holiday was in the region of £1999

[Bookworm]

From Portand Direct's current website, Q&A section:

Once your on-line booking has been completed, we will send (to the UK address that you provide) a Holiday Invoice confirming all details of the holiday you have booked and the amount of deposit you have paid. It is important that you check this invoice carefully. If you have taken advantage of a low deposit offer, we will send you a reminder when the balance of the deposit is due.

 

And in the agreement:

 

The deposit amount will be specified by us or your travel agent when your booking is made and for Our Accommodation may be 100% of the price. If you pay less than the deposit under a low deposit booking scheme, this is only part of the deposit referred to in this paragraph.

 

and

 

Cancellation charges

 

 

These charges are based on how many days before your booked departure we receive your cancellation notice. These charges are a percentage of the total cost of your booking, not including your insurance premium.

 

Period before departure within which written notice of cancellation is received% of total booking price

 

More than 56 days - Loss of deposit*

55-29 days - 50%

28-22 days - 70%

21-8 days - 90%

7-0 days - 100%

 

* Where the standard deposit is increased to secure specific facilities or an additional payment has been made for transport tickets (see Section 10 and 11.3 above) and these are non-refundable in whole or in part, then the scale of charges shown will be calculated based on a % of the cost of all other arrangements and the non-refundable charges will be added to that cancellation charge to give the total charge. If a low deposit scheme was used for your booking, the deposit will need to be paid in full upon cancellation, if you have not already paid it.

 

Not looking good.

[heidi1]

Bookworm is right I'm afraid hun,

 

When you enter a "low deposit" scheme, regardless of whether you intend to travel or not, the remainder of the deposit will need to be paid. And they will not let it go. Dont want to scare you or put the mockers on it, but thats how it is I'm afraid! You can try to negotiate with them, offer so much a month, or ask if they will sit on it til after xmas..... no guarantees but its worth a try.

 

Everything you try now, all they will do is refer you back to the booking conditions, and the solicitors letter is right, its not thier fault if you didn't read them (not meaning to be rude or funny, please dont take it like that). You could maybe argue the point that it should be made clearer before you agree to these terms on their website, its not like you rush off to read the conditions before booking a holiday is it!! lol

 

I hope you get somewhere I really do, but I do not want to give you false hopes either!

 

And just incase anyone reading this thinks I dont know what I'm on about and thinks I'm being a right old sour puss (maybe they're right, lol) I've been a Travel Agent for around 10 yrs, and I will help in any way I possibly can, but I am not about to give out false information just because thats what you want to hear.... We have to be realisitc!

 

Gosh I've read that back and I sound soooo harsh! Sorry, dont mean it like it sounds, its hard when you have to type out your response!!!

 

Good luck 'hun

 

Heidi

[mooo_ella]

No that didnt sound harsh at all Heidi, your input really helped....

 

thanks kindly, I shall ring them and see what I can negotiate

 

thanks everyone else for taking the time to try and help me out, i really appreciate that

[MAGZY]

MOO,

 

One last straw to clutch - but I think I have a solution for you.

 

I went through a pretend online booking with PD website...

 

When you did the online booking with portland you would have had to agree having your own insurance OR getting their own insurance.. If you did inded have insurance then read on...

 

Reading through the small print it would appear that you are covered in the event of you cancelling the holiday up to the limit of the cancellation charge.

 

see insurance here: Portland | Essentials | Insurance

 

search the page for 'cancel'

 

You will have to speak to PD about the claim or read through it in more detail but you should be covered and will be able to claim back the £300 + £70 (which is in effect their cancellation charge)

 

If you had a different policy then check that too as you still may be covered for some of the cost.

 

I suggest you pay what they ask and to avoid court and then claim on the insurance (but double double check you can do this with them first)

 

Magz

[bigboyprice69]

Moo, please don't let Magzy lead you up another garden path. You have to have a valid reason for cancelling to be able to make an insurance claim i.e death, illness, major disaster. The insurance company will not pay out just because you didn't want to go on the holiday.

 

Take the advice of the travel agent poster above, try to make arrangements to pay in instalment, before you dig yourself into deeper doo doo.

 

Good luck

[Bookworm]

Thank you, bigboyprice69, you beat me to it.

 

Magzy, why on earth would you think that ANY insurance would pay simply because Ella didn't want to go? That is displaying a serious lack of knowledge about travel insurance, and totally misleading Ella.

[heidi1]

Thanks guys, you are sooooo right!!

 

The insurance co, be it with PD or with any other (by the way the operator is not allowed to make you take their insurance whether there is an offer of discount or not!) will not allow you claim for this reason. You will have to claim for health reasons or similar, and would need a doctors note to say you are unfit to travel. Its not quite so easy as just claiming!

 

Forget about the insurance angle all together, its not going to work! Try and negotiate something with them. Be nice and you will probably find they maybe more willing to help!

 

If you need any more advice or anything, I am more than happy to oblige.

 

Heidi

[heidi1]

Hi Moo Ella,

 

Did you speak to them?? Have you managed to negotiate anything??

 

Heidi

[mooo_ella]

believe it or not, i have misplaced the letter for the collection agency and havent called them. I'm hoping that they will write to me shortly so i can make arrangements!!! Dizzy blonde - thats me!