Back in 2018, the ‘new’ Package Travel and Linked Travel Arrangements Regulations (PTRs) were hailed as a big step forward in clarifying who was responsible for what in the field of package holidays. But the Covid-19 pandemic has thrown up so many unforeseen circumstances where frankly it sometimes seems like almost anyone’s guess how the PTRs are supposed to apply. Refunds, FCDO Advice, traffic lights, credit notes, subrogated claims from insurers, chargebacks, the list goes on.
But at least there is now some clarity in one area, thanks to the case of Dennison v Love Holidays, decided on 15th October 2021 at Lincoln County Court.
Miss Dennison had bought a package holiday to Tenerife in June 2020, to take place that October. Between those dates, the Department for Transport introduced a requirement to quarantine for 14 days for those returning to England from the Canary Islands (although at the relevant date, FCDO were not advising against all but essential travel to the Canaries, unlike mainland Spain).
Miss Dennison decided that she could not undertake a period of quarantine for various reasons, and cancelled the holiday. She sought a full refund. Love Holidays were able to refund the accommodation and transfer costs, but did not recover the flight costs from the airline, Ryanair – indeed the flights did operate. So that sum was not refunded. The evidence was that the hotel and transfers were also available to Miss Dennison, had she wanted to go on the holiday.
The relevant legal provision is the (perhaps well-known, by now!) Regulation 12(7) of the PTRs. This says:-
in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and which significantly affect—
(a) the performance of the package, or
(b) the carriage of passengers to the destination,
the traveller may terminate the package travel contract before the start of the package without paying any termination fee.
It is further provided that refunds must be paid within 14 days. All this operates by being inserted as an implied term into the package holiday contract.
The matter came before a Deputy District Judge in March 2021, and he decided that, as the decision by Miss Dennison to cancel was entirely understandable and reasonable in all the circumstances, Love Holidays were obliged to refund the outstanding balance of the price (the flights).
Given the importance of this issue, and the number of potential claims, Love Holidays applied to appeal against this decision. Permission was refused by the Deputy District Judge, but was granted by the Designated Civil Judge; and the hearing of the appeal came before Her Honour Judge Fine on 15th October.
Her Honour noted the following:-
- that the judgment of the Deputy District Judge failed to identify any legal basis for his decision, whether breach of an express or implied term of the contract, or otherwise.
- That the BEIS Guidance on the PTRs, which the Deputy District Judge had relied on, was just guidance and it is trite law that it is for the courts to interpret the PTRs. In any event it was an out of date version of the Guidance which was relied on.
- There was no evidence before the DDJ that performance of the package, or carriage to the destination, had been affected, and the flights did operate.
- It may well have been reasonable for Miss Dennison to decide against going on the holiday, but that is not the same thing as saying that a refund was due.
- Accordingly, the DDJ had been wrong to make the award against Love Holidays.
The appeal was therefore successful.
This clarifies very helpfully the position where quarantine requirements have been imposed on return to the UK, which is after the package has been fully performed (or could have been). There remain many other issues arising out of the pandemic and holidays, not least the impact where, unlike Dennison, the point at issue is FCDO advice against travel to the destination.
Stephen Mason is Senior Counsel at Travlaw Legal Services and co-author of the textbook Holiday Law (2018). He acted as Advocate for Love Holidays in the appeal described above.
Stephen Mason is Senior Counsel at Travlaw Legal Services and co-author of the textbook Holiday Law (2018). He acted as Advocate for Love Holidays in the appeal described above.
This article was originally published on: 20 October 2021
