Reg 11 Refunds – Sun, Sea and Social Distancing

COVID-19 and March 2020 may seem like a distant memory but travel lawyers are still picking up the pieces when it comes to claims under Regulation 11 and 12 of the Package Travel Regulations. In this article, Nick Parkinson, discusses the latest skirmish in: Mushtaq Usmani -v- Expedia (unreported, DDJ Kharron-deep, Coventry County Court 26/03/25).

San Sebastian crowded beach Spain
by aluxum from Getty Images Signature

The Claimant’s Case

Mr Usmani booked a package holiday to Turkey with Expedia on 06/03/20. He was due to depart on 09/03/20, and duly did so. On arrival, the Claimant concluded that this was not the holiday he was expecting. The impact of COVID-19 was already being felt in Turkey with social distancing measures in place, closures of restaurants and some tourist activities shut down. As the holiday progressed, the situation escalated and the Claimant’s return to the UK was affected by flight disruptions.

The Claimant’s case was that Expedia should not have sold the holiday or allowed it to proceed. In the alternative, and having allowed the holiday to go ahead, they should have done more to warn the Claimant about the situation in Turkey. The Claimant sought a full refund plus significant compensation.

Expedia’s Defence

Expedia’s defence can be broken down into five parts:

There is a ‘high bar’ to be met before a package organiser is obliged to cancel or make significant changes to a holiday under Reg 11 of the Package Travel Regulations. As per the High Court decision in Sherman: ‘there must no longer be a reasonable possibility of the holiday proceeding (without being significantly affected/changed)’
The evidence indicated that this ‘high bar’ had not been met because:
There was no FCDO advice against travel to Turkey, either at the time of booking or departure
There were no confirmed COVID infections in Turkey at that time
Expedia could still provide the travel services: flights, accommodation and transfers
The WHO had not declared a pandemic at that time
The UK government had not announced any type of lockdown in the UK
What actually happened after the holiday started is irrelevant. Judges cannot apply hindsight, as supported by the County Court decision in Brynmawr.
The COVID-19 situation was worldwide news both at the time of booking and at departure. Expedia had directed the Claimant to the FCDO website to check for travel advice (which noted social distancing was in place etc) at the time of booking. The Claimant was therefore sufficiently informed to make a decision about whether to make the initial booking and subsequently travel (and made no attempt themselves to cancel before departure).
The position in Turkey had not changed significantly between the Claimant booking his holiday on 06/03 and departure on 09/03. In other words, this was ‘exactly the holiday the Claimant had bargained for’. An argument supported by the European Courts in Tez Tours.

In short, it was up to the Claimant to decide whether or not to proceed with the holiday based on the knowledge available to him at the time of departure on 09/03/20. Each to their own! Indeed, had Expedia cancelled, and the situation in Turkey had not escalated as it did, the Claimant could have argued that Expedia cancelled the trip prematurely and sought a full refund and compensation.

The Outcome?

The Judge gave an indication that the Claimant’s evidence was sufficient to make out a claim under the PTRs but… the Claimant’s expectations on how much the claim was worth were unrealistic. The Judge therefore directed the parties to explore an out of court settlement. The parties duly managed to come to an amicable resolution – and for considerably less than the Claimant was originally claiming!

Final Thoughts

Once again, we are reminded that FCDO advice is merely evidence, not conclusive, as to whether package organisers are obliged to cancel under Reg 11 of the Package Travel Regulations (or whether customers are entitled to cancel under Reg 12(7)). Further, as always in the Small Claims Court, the outcome of these arguments are inherently unpredictable – with Judges often taking a pragmatic approach to find an outcome that allows both parties feeling they have ‘come away with a win’.