Here, as part of our “Looking Forward” series, the Commercial Team at Travlaw look at the issue of Booking Conditions…
Booking Conditions – What’s the point?
With COVID-19 currently unearthing so many unexpected contractual difficulties, including those of cancellations and refunds, the documents provided to a consumer before making a package holiday booking are under much scrutiny. These documents, usually referred to as the Booking Conditions, or “the T&Cs”.
We know, because we have been asked the question so many times, that many travel businesses wonder about the importance of the Booking Conditions. This ties into the “no one ever looks at them anyway!” mindset. Of course, in recent times we are seeing a situation where the Package Travel Regulations 2018 (“PTRs”) override some terms in package contracts, which has lead to more confusion.
There are a number of very, very good reasons to have well drafted T&Cs in place. This document is the bedrock of your agreement with consumers, and so is clearly a key document – believe us when we say this. “The answer” to many of the questions we receive on a daily basis are actually answered by reference to the Booking Conditions.
We’ve set out 7 scenarios below where T&Cs could cause difficulty –amid the COVID-19 pandemic or otherwise. These are just a few examples as to where difficulties may arise.
No T&Cs
Scenario 1: The consumer does not receive T&Cs when booking a package.
Problems:
- Lack of “incorporation” of a contract creates a lack of clarity. Not good for either party!;
- If the consumer is based within the UK, the PTRs and the Consumer Rights Act (which include ‘unfair terms’), amongst other laws, may apply. A lack of appropriate T&Cs can cause you to be acting in breach of various requirements “straight of the bat”!;
- If the consumer is based elsewhere, disputes may have to be dealt with in a foreign jurisdiction – including jurisdictions beyond the EEA and the scope of the EU law. T&Cs may bring clarity on this point.
Vague T&Cs
Scenario 2: Booking Conditions are in place, but they do not cover all of the obligations that the consumer is required to meet (imposed by law or desired by the travel company) in order for them to make a booking.
Problem:
- The consumer may be bound by the terms provided, but will not be bound by any additional terms which might otherwise cover issues down the line;
- Where the consumer’s obligation to take out travel insurance / disclose health or medical requirements is not specified in the T&Cs, it is harder to bring that term to bear where such insurance is not obtained/ health information provided.
Out-of-date T&Cs
Scenario 3: T&Cs refer to legislation that has since been repealed or replaced – such as the Package Travel Regulations 1992, replaced by the PTRs, or the Data Protection Act 1998, replaced by the Data Protection Act 2018 (“DPA”). Alas, we see this all the time!
Problem:
- Failure to set out the information statements before the time of booking where required by the PTRs is a criminal offence, punishable by a fine or summary conviction.
- Where T&Cs combine data protection clauses not set out clearly in a separate privacy policy and not in a form / detail required by the DPA, this could be a breach of the DPA and/or GDPR.
Incorrect T&Cs
Scenario 4: Common examples are T&Cs referring to package holiday consumers being unable to transfer their holiday to another consumer , or stating that the package is not ATOL protected.
Problem:
- A consumer who knows their rights (or even an unhappy consumer) may complain about the T&Cs/ service, resulting in an investigation by the relevant body, such as an industry body, the CAA or even Trading Standards.
T&Cs not clear on Capacity of Travel Business
Scenario 5: By this we mean that the T&Cs are in place but they incorrectly label the travel company as acting in the wrong capacity such as stating the company is a supplier/principal, where they are in fact an agent (or vice versa).
Problem:
- The company could be taking on additional obligations they are not legally required to;
- If T&Cs don’t set out that the company is only the agent, consumers may demand refunds and due to the unclear T&Cs, be able to obtain a refund from the agent (where otherwise this obligation would sit with the principal).
Over Generous T&Cs
Scenario 6: T&Cs provide more generous terms than those under UK law (e.g. where they state that refunds provided to consumers within 10 days or that compensation will be awarded to consumers where an unavoidable and extraordinary event prevents the performance of the contract).
Problem:
- Such terms will be more favourable to the consumer than the default PTR terms;
- Both the consumer and the travel company will be bound by the T&Cs and the parties will not be affected by any potential legislative changes – especially those in favour of travel companies.
Of course you may well desire to be generous for various reasons – just make sure you are 100% sure as to why you are doing it!
Unfair T&Cs
Scenario 7: T&Cs attempt to exclude the legal rights of the consumer or limit the liability of the party selling the holiday (e.g. excluding liability for personal injury or even death as a result of negligence).
Problem:
- T&Cs are incapable of allowing such exclusions or limitations where the implied laws and terms will take precedence over these clauses.
- The clauses will be considered unfair (and unenforceable) under UCTA.
Summary
The above are purely some of the examples that we have seen where T&C’s ‘go wrong’. Above anything else, we understand that every tour operator has different concerns, risks and objectives. We are often asked if we have a “stock” set of Booking Conditions. There really is no such thing – it’s impossible to have a ‘one glove fits all’ solution to providing T&C’s. Our commercial team will therefore make sure to assess those objectives, and tailor your T&C’s to fit in with your particular business model. We make no excuses for making sure that your Booking Conditions will be a quality job that are more than fit for purpose!
If you would like Travlaw to review your T&Cs, please get in touch. Our commercial team will be able to review your current document(s)/ T&Cs and provide you a fee quote for any recommended work involved in ensuring your T&Cs afford you the protection you require.
The Travlaw Team
This article was originally published on: 18 April 2020
