Abta or small claims court?

[kassidy777]

Hi all

 

Apologies for the long post. I am in the process of a complaint ith Abta about a holiday i have yet to take but i believe there has been a breach of contract and i want a full refund or flights changed. When you read the complaint it may seem like a small issue but the deceptive behaviour and outright lies are what make me want to cancel with this company.

 

I booked a holiday to go to Turkey on 25th May. I paid the deposit online but received an email a few days later stating that the rooms are not available but they have a different room for £313.07 extra of which Loveholidays would pay half. I said that would be fine but the next day (Sunday) i received another email stating that even those rooms are not available.

 

• So i spent the day looking with other companies and found the holiday available with another company for a cheaper price on different dates which were preferential (during half term). My family discussed it and arranged the dates with their work. When i called Loveholidays, i explained that i am phoning to cancel as i have found the holiday cheaper elsewhere with different dates. She agreed as they were unable to find availability and said it would take 3-5 days to get our money back. As i knew it would take at least 3 working days to get the deposit back, i told the manager (Hannah) i had found the holiday cheaper elsewhere with better dates and asked if she could match the new price and dates rather than waiting for a refund. She said she will find out and call me back.
  She calls me back in the afternoon stating that she has once again found the rooms (the 2nd option) for the original date and that i will still have to pay the extra money. I explained that i did not want and would like to cancel it as the other company was still cheaper and the dates more suitable. She said i would have to pay £400 admin fees for the flights if i wanted to change them but i could not get a full refund as the flights are non-refundable. She had booked the hotel without my consent as i asked if she could match the new price and dates i had found.
   
  NONE of this was mentioned in the call earlier that day. I told her to make me an offer so i can choose whether to stay or cancel. At no point did she tell me that if she found room availability i would have to take it. Basically, the choice was taken away from me. If she had stated that in the morning i would definitely have cancelled and she should have mentioned this. Within a few hours i lost the ability to cancel this booking. I never asked her to book the rooms for me. I asked for her to give me options if she could match it but she has not.
   
  It is strange how they finally found room availability when i explained i had found the holiday cheaper elsewhere and i am extremely angry that she has done this. It is very conniving. I do not want to be held over a barrel and i did not ask her to book the rooms. I asked her what would be available for me if i decided to stay.
   
  While she has agreed to write off the extra money to be paid for the rooms, she has also given me no choice but to stay with Loveholidays.
  
• So my question is, should i bother pursuing it through the small claims court as i already know they have replied to Abta and disagree with me so we will be at deadlock. It may seem like a high price to pay for a principle but the lying incompetent manager should not be allowed to do this to people as a sneaky tactic of holding onto customers.
  
• Any help appreciated and sorry again for the long post.
  

[citizenB]

DO they have a set of terms and conditions anywhere Kassidy ?

[unclebulgaria67]

Hi all

 

Apologies for the long post. I am in the process of a complaint ith Abta about a holiday i have yet to take but i believe there has been a breach of contract and i want a full refund or flights changed. When you read the complaint it may seem like a small issue but the deceptive behaviour and outright lies are what make me want to cancel with this company.

 

I booked a holiday to go to Turkey on 25th May. I paid the deposit online but received an email a few days later stating that the rooms are not available but they have a different room for £313.07 extra of which Loveholidays would pay half. I said that would be fine but the next day (Sunday) i received another email stating that even those rooms are not available.

 

• So i spent the day looking with other companies and found the holiday available with another company for a cheaper price on different dates which were preferential (during half term). My family discussed it and arranged the dates with their work. When i called Loveholidays, i explained that i am phoning to cancel as i have found the holiday cheaper elsewhere with different dates. She agreed as they were unable to find availability and said it would take 3-5 days to get our money back. As i knew it would take at least 3 working days to get the deposit back, i told the manager (Hannah) i had found the holiday cheaper elsewhere with better dates and asked if she could match the new price and dates rather than waiting for a refund. She said she will find out and call me back.
  She calls me back in the afternoon stating that she has once again found the rooms (the 2nd option) for the original date and that i will still have to pay the extra money. I explained that i did not want and would like to cancel it as the other company was still cheaper and the dates more suitable. She said i would have to pay £400 admin fees for the flights if i wanted to change them but i could not get a full refund as the flights are non-refundable. She had booked the hotel without my consent as i asked if she could match the new price and dates i had found.
   
  NONE of this was mentioned in the call earlier that day. I told her to make me an offer so i can choose whether to stay or cancel. At no point did she tell me that if she found room availability i would have to take it. Basically, the choice was taken away from me. If she had stated that in the morning i would definitely have cancelled and she should have mentioned this. Within a few hours i lost the ability to cancel this booking. I never asked her to book the rooms for me. I asked for her to give me options if she could match it but she has not.
   
  It is strange how they finally found room availability when i explained i had found the holiday cheaper elsewhere and i am extremely angry that she has done this. It is very conniving. I do not want to be held over a barrel and i did not ask her to book the rooms. I asked her what would be available for me if i decided to stay.
   
  While she has agreed to write off the extra money to be paid for the rooms, she has also given me no choice but to stay with Loveholidays.
  
• So my question is, should i bother pursuing it through the small claims court as i already know they have replied to Abta and disagree with me so we will be at deadlock. It may seem like a high price to pay for a principle but the lying incompetent manager should not be allowed to do this to people as a sneaky tactic of holding onto customers.
  
• Any help appreciated and sorry again for the long post.
  

 

So have you gone through the full ABTA process ?

 

You can go down the small claim court route, but if they defended any claim, you might not get it resolved before May.

 

Were the flights and hotel part of a packaged arrangement or were you advised they were separate ?

 

When you booked, did they say the flights were not refundable ?

 

I think the problem with hotel rooms is that they buy them through some block arrangement and availability is not always clear. The hotels deal with different travel operators and they hold some rooms back so they are available for certain operators. When the rooms are then not booked, they are then available to other operators. I suspect the Travel Agent has attempted to try to book other rooms for you in the hope that you just accepted. But of course you have not. My understanding is that quite often the hotels don't receive any money from travel operators until about a month before the actual booked dates, so the option to cancel may still be there for your Travel Agent.

 

Contact ABTA about this and see what Arbitration is available.

[kassidy777]

Hi

 

Yes they do have terms and conditions on their website. It should be noted that they claim to not provide a package holiday so i cant claim under the Package Travel Regulations clause for change of accomodation. (Even though they sold the flight plus hotel for 1 price so anybody would assume it was a package but i found out it does state in the T and Cs that we are booking with 2 suppliers).

 

I also paid the deposit online but i had a conversation with the manager re: cancellation on the phone. I have paid £10 under the data protection act in the hopes that the conversation is recorded as i was told it is but when i complained to the company, the manager i am complaining about is the one dealing with my complaint!! So i have no confidence in her actually sending me the recorded phone call re: the booking she made.

[unclebulgaria67]

Hi

 

Yes they do have terms and conditions on their website. It should be noted that they claim to not provide a package holiday so i cant claim under the Package Travel Regulations clause for change of accomodation. (Even though they sold the flight plus hotel for 1 price so anybody would assume it was a package but i found out it does state in the T and Cs that we are booking with 2 suppliers).

 

I also paid the deposit online but i had a conversation with the manager re: cancellation on the phone. I have paid £10 under the data protection act in the hopes that the conversation is recorded as i was told it is but when i complained to the company, the manager i am complaining about is the one dealing with my complaint!! So i have no confidence in her actually sending me the recorded phone call re: the booking she made.

 

ABTA offers a arbitration process as part of dealing with complaints. I would suggest that you use that, rather than go through the court process. You would have to send Loveholidays a letter before action anyway, giving them opportunity to resolve, before you issued a court claim. It is also possible that if it got to court, it might be queried why you had not used the full ABTA process including arbitration.

 

I would have thought it was an ABTA requirement to advise consumers on booking, that they were not offering a packaged arrangement and what aspects were non refundable. If they failed to meet ABTA requirements, i would think cancellation with a full refund would be fair.

[kassidy777]

ABTA offers a arbitration process as part of dealing with complaints. I would suggest that you use that, rather than go through the court process. You would have to send Loveholidays a letter before action anyway, giving them opportunity to resolve, before you issued a court claim. It is also possible that if it got to court, it might be queried why you had not used the full ABTA process including arbitration.

 

I would have thought it was an ABTA requirement to advise consumers on booking, that they were not offering a packaged arrangement and what aspects were non refundable. If they failed to meet ABTA requirements, i would think cancellation with a full refund would be fair.

 

 

Thanks for the reply. Unfortunately as long as it is in their terms and conditions, that is enough to tell the customer that it is not a package holiday. Also if you go through with the arbitration process with ABTA, the decision is legally binding and you are not allowed to take the case any further so court would be out of the question after arbitration, hence my question.

 

Just trying to ascertain objective opinions but wasnt sure whether ABTA might be biased or not.

 

Thanks again

[kassidy777]

Yes they do have terms and conditions on their website. It should be noted that they claim to not provide a package holiday so i cant claim under the Package Travel Regulations clause for change of accomodation. (Even though they sold the flight plus hotel for 1 price so anybody would assume it was a package but i found out it does state in the T and Cs that we are booking with 2 suppliers).

[BankFodder]

I disagree about the effect of their terms and conditions and what is to be taken as a "package holiday".

 

Regardless of the terms and conditions, it is clear that if they are booking a flight for particular dates and also hotel bookings to fit in with those particular dates then it is a package.

 

I can't imagine that any county court in the land will say that it is not. If you want a legal way of expressing it then they are collateral contracts. Collateral contracts are contracts which dovetail with each other and without one, the second one fails or has no purpose.

 

That is the case here.

 

It is quite right that if you wanted to make a small claim of this then it would take longer than May. On the other hand, I rather expect that once the travel company receive the court papers they would put their hands up because they wouldn't want the matter tested in court. I expect that your chances of success so far as the issue turned on whether or not it was a package, would be much better than 90%.

 

Don't worry about the terms and conditions. Don't worry about ABTA. Don't worry about industry practice.

 

As to your motivation for making a claim, if it is simply anger or a matter of principle – then forget it. These are extremely bad reasons for making a claim.

 

The only reasons for making a claim are because you want your money back and you have a better deal elsewhere.

 

If you have now been offered a holiday which fits in with your plans and it is the same price then you should take it.

 

Finally, your big mistake here – in common with the majority of the population, is that you have no record or evidence of the calls you have made or what has been said.

 

Read our customer services guide. Implement the advice there. Record all calls when you're dealing with any of these kind of people. They can't be trusted and you have to look after yourself

 

Just to add, that in respect of some "package travel regulations" – it is probably right, you wouldn't be able to claim because I would imagine that those regulations have been tailored to fit industry practice – and I can imagine that the terms and conditions have been drafted especially to build a loophole which allows them to escape the effect of those regulations.

 

However, if you are bringing a small claim, then I would sue just directly on the ordinary law of contract and I expect you would win.

[unclebulgaria67]

Thanks for the reply. Unfortunately as long as it is in their terms and conditions, that is enough to tell the customer that it is not a package holiday. Also if you go through with the arbitration process with ABTA, the decision is legally binding and you are not allowed to take the case any further so court would be out of the question after arbitration, hence my question.

 

Just trying to ascertain objective opinions but wasnt sure whether ABTA might be biased or not.

 

Thanks again

 

I think ABTA are known to be fair. They will know all of the rules that agents have to comply with.

 

The bit i am struggling with court wise, is what would be the particulars of claim you made ? You appear to have not read or understood the t&c's of the booking you made. You have tried to change your booking details with the agent, once the original hotel booking could not be met. The agent has offered to arrange an alternative hotel and pay half of the cost. There then follows some odd behaviour by the agent.

 

I guess it would be a partial breach of contract, in regard to the hotel bookings you would claim for. Not sure you can claim for flights because they are a separate non refundable part. You asked them to book flights on certain days and they booked them. You still have the option of arranging hotel rooms. I guess the amount of claim would be any sum the agent says you are responsible for in regard to hotel rooms.

[unclebulgaria67]

I disagree about the effect of their terms and conditions and what is to be taken as a "package holiday".

 

Regardless of the terms and conditions, it is clear that if they are booking a flight for particular dates and also hotel bookings to fit in with those particular dates then it is a package.

 

I can't imagine that any county court in the land will say that it is not. If you want a legal way of expressing it then they are collateral contracts. Collateral contracts are contracts which dovetail with each other and without one, the second one fails or has no purpose.

 

That is the case here.

 

It is quite right that if you wanted to make a small claim of this then it would take longer than May. On the other hand, I rather expect that once the travel company receive the court papers they would put their hands up because they wouldn't want the matter tested in court. I expect that your chances of success so far as the issue turned on whether or not it was a package, would be much better than 90%.

 

Don't worry about the terms and conditions. Don't worry about ABTA. Don't worry about industry practice.

 

As to your motivation for making a claim, if it is simply anger or a matter of principle – then forget it. These are extremely bad reasons for making a claim.

 

The only reasons for making a claim are because you want your money back and you have a better deal elsewhere.

 

If you have now been offered a holiday which fits in with your plans and it is the same price then you should take it.

 

Finally, your big mistake here – in common with the majority of the population, is that you have no record or evidence of the calls you have made or what has been said.

 

Read our customer services guide. Implement the advice there. Record all calls when you're dealing with any of these kind of people. They can't be trusted and you have to look after yourself

 

Just to add, that in respect of some "package travel regulations" – it is probably right, you wouldn't be able to claim because I would imagine that those regulations have been tailored to fit industry practice – and I can imagine that the terms and conditions have been drafted especially to build a loophole which allows them to escape the effect of those regulations.

 

However, if you are bringing a small claim, then I would sue just directly on the ordinary law of contract and I expect you would win.

 

Pretty sure there have been court claims in regard to these 'packaged holidays' which have not actually been found to be a package arrangement at all. Can't remember what the outcome was. It may well be that as Bankfodder has suggested that the flights and hotel were part of the same contract, with one part relying on the other.

 

Will have a search to see what i can find.

[BankFodder]

In fact I would be interested to know whether since the introduction of these package travel regulations, there is any holiday company anywhere that is not trying to say that you are buying a holiday in its constituent parts and not as a package.

 

If these terms and conditions are constructed simply to dress up a package holiday as a holiday being sold in parts, then I would go on to say that not only are you entering into collateral contracts but also, that the term of the contract which attempts to exploit the loophole is an unfair term within the meaning of the Consumer Rights Act.

 

It actually need someone to litigate to establish that point.

 

I don't think it would be very difficult. One of the first questions I would be asking is what was the date that these terms and conditions were introduced – before or after the introduction of the Package Travel Regulations.

 

No prizes for guessing what the likely answer is.

[unclebulgaria67]

Did your booking come with an ATOL number showing ?

 

If so, this should mean that your holiday was a package.

 

If you search online there is plenty of information on companies who offer holidays online, which are not packaged holidays. Some make it very clear that flights and hotels are totally separate, as they can offer holidays cheaper that way.

 

Which airline did they book you with ?

[unclebulgaria67]

In fact I would be interested to know whether since the introduction of these package travel regulations, there is any holiday company anywhere that is not trying to say that you are buying a holiday in its constituent parts and not as a package.

 

If these terms and conditions are constructed simply to dress up a package holiday as a holiday being sold in parts, then I would go on to say that not only are you entering into collateral contracts but also, that the term of the contract which attempts to exploit the loophole is an unfair term within the meaning of the Consumer Rights Act.

 

It actually need someone to litigate to establish that point.

 

I don't think it would be very difficult. One of the first questions I would be asking is what was the date that these terms and conditions were introduced – before or after the introduction of the Package Travel Regulations.

 

No prizes for guessing what the likely answer is.

 

Funily enough, on LBC last night they had a Solicitor that is a retail ombudsman and i am sure this question was raised about holidays. Will see if they have it on archive.

[unclebulgaria67]

This is the Loveholidays website terms.

 

loveholidays.com acts an agent in respect of all bookings made on our website. For all bookings, your contract will be with the applicable supplier principal of your chosen arrangements, and loveholidays.com acts only as an agent on their behalf. We do not create or organise package holidays. All package holidays available on our website are organised by third party supplier principals on whose behalf we act as agent, and where flights are included, protected under their ATOL. Where you book a Flight plus Hotel product on our website, it is protected under our ATOL (10989) but we still act as an agent on behalf of the applicable supplier principal. All the arrangements on our website have their own price independent of any other arrangements booked at the same time and creates a separate contract directly between you and the supplier principal of each arrangement. Please see our Agency terms and conditions for more information. Click here to view full site map.

When you book a flight-inclusive holiday with loveholidays.com, you can trust you are fully protected under the ATOL scheme. You will receive an ATOL Certificate confirming what is ATOL protected, where you can get information on what this means for you and who to contact if things go wrong. Please see our Agency Terms & Conditions for information, or for more information about financial protection and the ATOL Certificate go to: http://www.atol.org.uk/ATOLCertificate.

[BankFodder]

Well that's perfectly clear.

 

What does it all mean?

 

I notice that they don't say anything helpful like – this has no bearing on your consumer rights

[kassidy777]

The particulars of my claim would be breach of contract as their t&cs state "Our responsibilities are limited to making the booking in accordance with your instructions." and i did not instruct her to book accomodation after she agreed a refund. Plus, the deposit did not cover the full cost of the flights so when she agreed the refund it must have been for the entire booking.

 

There has been a successful case in court where the person thought they were booking a package holiday and successfully sued (even though the operators said it was not a package) ......"TITSHALL vs QWERTY TRAVEL LTD (2011) EWCA Civ 1569"

 

My booking has come with an ATOL certificate. This is an attachment on the website stating that my money is protected by the ATOL scheme.

[kassidy777]

The airline is Thomas Cook

[unclebulgaria67]

Have you actually discussed this whole issue with ABTA ? Is it officially deadlocked and ABTA have said it has to go to arbitration ?

 

It appears that this is an ATOL covered packaged holiday which Loveholidays have arranged through another agency.

 

It sounds like a complete c*ck up, which ABTA should be able to help you resolve. As a packaged holiday, you should expect to receive what you booked, an alternative hotel at no extra cost or a full refund.

 

Your issue with a court claim is whether you would get it resolved as you want it to be within the timescales.

[BankFodder]

http://travellawquarterly.co.uk/images/uploads/engcases/TITSHALL_v_QWERTY_TRAVEL_LTD_pdf.pdf

 

No mention in this case of "collateral contracts" and it certainly not as clear as I thought but effectively the courts here are saying that the circumstances of the sale come within the package regulations despite the terms and conditions.

 

It's worth having a read.

 

I think that these "not package holidays" exclusion clauses in the terms and conditions are just there to provide an escape route for the travel agents.

[unclebulgaria67]

Well that's perfectly clear.

 

What does it all mean?

 

I notice that they don't say anything helpful like – this has no bearing on your consumer rights

 

I think Loveholidays in this case are just an agent on a commission booking a holiday with a third party supplier, who are agents for a tour operator. So basically an agent for another agent.

 

There are other similar complaints online about this company, where the third party suppliers have had to make changes and it has not gone very well. In one case, someone turned up at a hotel to find it had no rooms available. Other cases where flights have been changed at very late notice or no notice.

 

Pretty poor.

[kassidy777]

Thank you so much for the input and advice. Always good to have an objective opinion.

 

It has not reached deadlock as yet but in my last correspondance with the deceptive manager, she clearly stated she had responded to ABTA and intimated that her position has not changed so i am assuming arbitration is the next step, which i am hesitant to do as i do not believe they will give me a fair hearing.

 

As BankFodder stated, i just have to see whether its worth the claim because of monetary terms (though i am still up for the prinicple thing). I will have a long hard think about it. The main thing is that it probably will not be resolved by the time of the holiday and once it has passed, i may not be as invested but once i have a bee in my bonnet, i like to come to a satisfactory conclusion.

 

Thanks again for the input.

[unclebulgaria67]

http://travellawquarterly.co.uk/images/uploads/engcases/TITSHALL_v_QWERTY_TRAVEL_LTD_pdf.pdf

 

No mention in this case of "collateral contracts" and it certainly not as clear as I thought but effectively the courts here are saying that the circumstances of the sale come within the package regulations despite the terms and conditions.

 

It's worth having a read.

 

I think that these "not package holidays" exclusion clauses in the terms and conditions are just there to provide an escape route for the travel agents.

 

In point 16 it talks about whether the actual agent ( third party provider) organising the holiday has been mentioned by the agent making the booking.

 

I this case it could be that whoever is actually arranging the flights and hotel is responsible to resolve this. The OP mentions Thomas Cook flights and I wonder whether it is Thomas Cook also arranging the hotel as part of the package. If the ATOL certificate is Thomas Cook, then this might reveal who the OP needs to deal with to get it sorted.