Had to cancel car hire as unable to fly due to covid…

[Uchaida]

Hi all. Thanks so much to all those on here who contribute to help us all. It is very humbling to read through and much appreciated.

 

Apologies if this is the wrong forum for this post, but I couldn’t find a car hire or travel forum, and I think as I’m new my posting abilities may be restricted? Feel free to move it if it belongs somewhere more suitable.

 

Thus far I have been unable to recover any money from AE Europe/Autoerope car hire. This is the full story:

On 29 October 2020, I booked and paid Auto Europe for car hire to commence on 1 November 2020 at 20:30 hours, with pickup at Las Vegas International Airport. I paid £742.87.

 

On 1 November 2020 at Heathrow Airport I was told by a United States Government Official that I would not be able to take my flight to Las Vegas. Despite being a Visa holder and meeting the criteria for travel outlined by the latest US Government Proclamation, the constantly changing severity of the Covid19 pandemic meant that on that day only US Citizens and US Embassy granted special cases were being allowed to travel to the USA. I was told by the Official that this was the very latest situation and it was changing constantly, hence his presence at the check-in desk. I explained that there was no foresight of this and he apologised but explained that the US Government could impose whatever restrictions they see fit at any time without notice and he was acting on the very latest orders.

 

This all occurred at the check-in desk in front of the airline staff who certainly felt sorry for me and also refunded my flight.

 

I telephoned Auto Europe to cancel the car hire but was told I would not be refunded as it was less than 48 hours before the scheduled pickup. 

 

I also tried to telephone the hire desk (Dollar) directly at Las Vegas airport using the number provided on my booking but there was no answer, despite the opening hours being all day. I tried again several times, trying further at different periods, but each time it just rang off with no answer. I tried 20 times in total. Same result each time.

 

The Terms & Conditions on the pdf file received from AE on 29 October 2020 states:

 

“In case of a cancellation due to officially acknowledged Force Majeure Auto Europe will charge an administration fee of GBP 25 only.”

 

Therefore I believe I am entitled to a refund of at least £717.87 (which is the £742.87 I paid minus their £25 administration fee). 
 

I have done some research and the High Court has ruled that Covid19 is indeed a Force Majeure in case of any doubt.

 

Thus far AE have said I’m entitled to NOTHING due to the less than 48 hour notice point. They said that that they had already paid Dollar for the rental before I phoned them on 29 October 2020.

 

I’m thinking of a small claim but am very new to all this, I believe I have 2 years to initiate it so if I have to go down that route I am looking to send a letter before claim in the next week or so.

 

Thank you for reading and any advice, suggestions etc would be hugely appreciated.

[Ethel Street]

Where is Auto Europe based please.

[Uchaida]

Hi Ethel, the uk arm of the company (who I booked with) are in Newcastle. 
 

They also have an American LLC and a European arm too I believe.

[Ethel Street]

Can you post up the t&c pdf that AE sent you. Cover up anything that would identify you (name, reference numbers, etc).

 

 

 

 

 

Is this the High Court case about force majeure that you referred to? If so one point to note is that the contract in that case contained a definition of force majeure and the definition included "epidemic". The High Court ruled that Covid was an epidemic and therefore force majeure under that specific contract..  I'm not a lawyer and I don't know whether AE could argue that Covid wasn't a force majeure under their t&c.

 

https://www.rpc.co.uk/snapshots/commercial-cases/spring-2022/high-court-finds-covid19-pandemic-amounts-to-a-force-majeure-event/

 

[Manxman in exile]

@Uchaida  -  assuming the contract is subject to UK law, you have 6 years (England and Wales) or 5 years (Scotland) in which to sue.

 

We need to see the T&Cs of the contract (1) to confirm in what circumstances you could cancel it and (2) to determine what law governs it.

 

Also, how did you pay?  If by credit card you may have a s75 claim against your card provider.  If by debit card you will be well out of time for a charge back.  If by bank transfer your only recourse is against AutoEurope.

 

Have you checked that your travel insurance definitely didn't cover this?  (I can't remember how covid affected claims back in 2020)

 

Just to add to my previous post - assuming the contract is governed by UK law, it is possible that the legal doctrine of frustration applies.

 

See this link from the Competitions and Markets Authority (A UK government agency) which gave guidance as to how contracts that can't be carried out because of Covid should be handled:  Statement on coronavirus (COVID-19), consumer contracts, cancellation and refunds - GOV.UK (www.gov.uk)

 

In particular, note the bits below that I've emphasised in bold itelics:

 

Contracts that cannot go ahead due to lockdown laws

In some circumstances, due to lockdown laws, a contract cannot go ahead as agreed or at all, and is therefore ‘frustrated’. A contract will be frustrated as a matter of law if, due to no fault of the parties, something happens after the contract was entered into which means it can no longer be performed at all or performance would be radically different to what was agreed.

As a result, the contract comes to an end and, where consumers have paid money in advance for services or goods that they have yet to receive, they will generally be entitled to obtain a refund.

They will also not be required to make further payments.

In particular, for most consumer contracts, the CMA would expect a consumer to be offered a full refund where:

• a business has cancelled a contract without providing any of the promised goods or services
• no goods or services are provided by a business because this is prevented by the lockdown laws
• a consumer is prevented from receiving any goods or services, because, for example, lockdown laws in the UK or abroad have made it illegal to receive or use the goods or services

In most cases, consumers will contact a business to ask for their money back, but there is no requirement for consumers formally to communicate with a business before becoming entitled to a refund.

Examples of legal restrictions in lockdown laws include:

• restrictions imposed under the original lockdown laws in the early stages of the pandemic
• restrictions imposed by local lockdown laws
• specific restrictions imposed by local authorities under their legal lockdown powers
• mandatory self-isolation following a direction from a public health officer
• mandatory self-isolation when returning to the UK from certain countries which may affect the consumer’s ability to use a service during the self-isolation period (provided that the requirement to self-isolate was imposed after the consumer had entered into the relevant contract and was not reasonably anticipated by the consumer)

If laws in another country prevent a business from providing a service under a contract with a UK consumer or prevent that consumer from receiving the service, then in most cases consumers will also be entitled to a refund.

Businesses should not require consumers to take unreasonable or unnecessary steps in order to obtain refunds. A business imposing such barriers may breach consumer protection law by doing so."

 

 

And to add further (I can't edit earlier posts as time-expired):

 

1.  It doesn't matter what the cancellation terms were and whether or not you complied with them.  Your argument with AutoEurope is that the car hire contract was frustrated by the actions of the US government and their representative in preventing you from travelling.  (Quote to them the CMA guidance I linked to above.)

 

2.  It's also irrelevant to you as a consumer whether or not AutoEurope had already paid Dollar or whoever the car provider in the states was.  That's a commercial or business matter for them to resolve between themselves.  It doesn't affect your right to a full refund.

 

That's certainly the approach I would take with AutoEurope - assuming this contract is subject to UK law.

 

See what they say when you point the above out to them...

Edited September 28, 2022 by Manxman in exile

[Uchaida]

Ethel and Manxman - thank you so much!

 

I have attached the pdf/T&Cs to this post.

 

Ethel - yes that’s the case I found.

 

Manxman - I’m fairly sure I paid with Mastercard, I will check my records and look into the s75 claim you mention, thank you! I didn’t have any travel insurance.

 

Thank you very much, yes I think those points in bold apply. British Airways were very understanding and refunded with no problems but AE seem to want to play hardball.

 

 Thanks again

 

 

AE TCs .pdf

[Ethel Street]

The t&c don't show the exact name of the Auto Europe company you contracted with, it may be redacted. However, you mentioned they were in Newcastle so I assume it's the company shown at the bottom of the 'General Business Terms' on their website Read all about the Auto Europe General Business Terms  - AE Europe Ltd

 

Address
AE Europe Limited
4A Kestrel Court
Hapton, Burnley
Lancashire
BB11 5NA

Registered
AE Europe Limited
Registered Number: 04964813
First Floor, 2 Collingwood Street
Newcastle Upon Tyne
United Kingdom NE1 1JF

 

 

Auto Europe LLC is the USA parent company. The Newcastle address looks like it might be just a brass plate at a business services office, not an AE operating location, so if sending formal letters for legal action there I'd cc to the Burnley address.

 

So as the contract is between a UK company and you, a UK resident, and was concluded in England it will be subject to English law. 

 

Did you make the booking through the website?

 

The first line of the General Business Terms usefully confirms that AE are acting as agent for the car hire companies, not for you: "AE Europe Limited, 4A Kestrel Court, Hapton, Burnley, Lancashire BB11 5NA UK, acts as a direct agent for car rental companies worldwide on behalf of Auto Europe LLC ." This confims Manxman's point that the arrangement AE have with Dollar are nothing to do with you and irrelevant to AE's obligation to refund you.

 

Also the General Business Terms on their website make no mention of force majeure. The 'Cancellations' paragraph is the same as the one on the t&c you posted here but without the sentence about force majeure. So IMV it's arguable whether the force majeure in the t&cs even applies because it was not in their terms of business that were available to you before you entered into the contract. But I think this may be to your advantage.

 

You can argue that both on the force majeure wording in the contract confirmation they sent you and on the contract frustration grounds Manxman has outlined you are entitled to your money back. And if they refuse start a small claims court MCOL action to recover it. I'm assuming you have the written evidence of why you were denied boarding that you'd need to put before a judge in court.

 

Do some research to understand the difference between force majeure and contract frustration before you write to them. Essentially force majeure applies if it's a clause within the contract, and contract frustration applies if the contract says nothing about force majeure. In this case you can argue both. They should refund under force majeure in the t&cs they sent you, or if they want a long legal argument about that proceed with contract frustration.

 

And explore the s75 claim route.

[Uchaida]

Ethel - thank you very much again.

 

Yes I booked online. The following  address details were displayed in the email that contained the pdf I attached previously:

 

Address AE Europe Limited Office 2 4B Kestrel Court  Burnley BB11 5NA Lancashire UK.. Registered AE Europe Limited Registered Number: 04964813 First Floor, 2 Collingwood Street Newcastle Upon Tyne United Kingdom NE1 1JF Directors: Imad Khalidi, Niall McDevitt, Nathalie Houder, Jonathan Benoit, Heather Gamage

As for written proof from the US Government official, he didn’t give me anything at all, just the verbal information/explanation/apology and the email address for the US embassy to contact them to see if I could obtain “special case” status, which subsequently I was unable to get.
 

Immediately after the US official gave the denial, BA accepted what had happened and offered to change/refund the flight. I don’t know what I can produce (if anything?!) in terms of written evidence. I had of course physically turned up at Heathrow, wanting to travel, so it obviously isn’t a case of me being late or changing my mind or anything of choice, but I’m unsure how I can show this in written evidence.
 

I have been reading up on the s75 route and - unless I’m missing something - it looks like there is a time limit of 120 days from the date of the service commencement or from noticing a problem. I have missed that time scale by a long way unfortunately (my own fault of course ).

Thanks again for all your help

 

[Manxman in exile]

The important question is whether it was a credit card or a debit card.  Credit card = good; debit card = not good.

 

My first course of action would be to argue the case with AutoEurope, the people you actually paid and who presumably your contract was with.  But I'd agree with @Ethel Street that it's important you deal with the appropriate AutoEurope entity.

 

Only if you get nowhere arguing with AutoEurope would I raise a s75 claim with your card provider.  (And you only have that option if you paid by credit card, not debit card).  If you do reach the point of raising a s75 claim, make sure that your card provider understands that it is a s75 claim you are raising, and NOT a chargeback.

 

I'd suggest that only if you get nowhere with AutoEurope and either (i) you paid by debit card, or (ii) you paid by credit card but your card provider rejects your s75 claim, should you consider making a court claim against AutoEurope.  However, note that if your card provider has already rejected your s75 claim, it might be an indication that they don't think you have the law on your side...   

 

If you do end up making a court claim, you will have to ensure that you issue the claim aginst the correct AutoEurope incarnation - ie the one you paid and contracted with.

 

NB - an important note on s75 claims.  I'm pretty sure that UK courts have enforced s75 claims against card providers even where the purchase has been abroad or overseas.  (ie where the purchase was not subject to UK law)

 

If you end up having to issue a court claim against AutoEurope in circumstances where your bank has already rejected a s75 claim - but which you think they should have paid out on - I suppose you could also include your card provider as a second defendant on the claim.

 

The law says that where you have a breach of contract claim against a supplier, you "... shall have a like claim against [your card provider], who, with the supplier, shall accordingly be jointly and severally liable to [you]".

 

See s75 Consumer Credit Act 1974.  Consumer Credit Act 1974 (legislation.gov.uk)

 

[Ethel Street]

1 hour ago, Uchaida said:

The following  address details were displayed in the email that contained the pdf I attached previously:

 

Good, same as that shown in their General Business Terms on their website so that confirms the entity you'd take legal action against, AE Europe Ltd.

[Uchaida]

Hi @Manxman in exile - Thank you again! I have found the transaction and yes it was my Tesco Mastercard Credit card, but as I understand it, I can’t make a s75 claim as it’s passed 120 days? Or am I wrong there?

 

Your advice makes perfect sense. I will reopen negotiations with AE first until they give me an absolute final answer.

 

@Manxman in exile & @Ethel Street- I’ve found the transaction on my credit card statement and the money was indeed paid to AE Europe Ltd, Newcastle.

 

Thank you both so much for your help.

 

 

[Manxman in exile]

On 29/09/2022 at 11:27, Uchaida said:

Hi @Manxman in exile - Thank you again! I have found the transaction and yes it was my Tesco Mastercard Credit card, but as I understand it, I can’t make a s75 claim as it’s passed 120 days? Or am I wrong there?...

 

 

 

You are wrong.

 

120 days applies only to Chargebacks, which are governed by internal rules set by the debit and credit card providers themselves - Visa and Mastercard.

 

s75 claims are entirely different and are governed by statute in England and Wales, and apply to credit cards , not debit cards.  There is no time limit beyond the normal statute of limitations of 6 years.

[dx100uk]

just for the correct record... chargeback is a total of 540 days, it's 120 days from when you realise you can ASK for a chargeback.