Freeclaim Solicitors consider the definition of a package holiday when making a claim

The Package Travel, Package Holiday and Package Tours Regulations ensure that anyone who is injured as result of an accident on holiday that wasn’t their fault could bring a claim against the tour operator in the UK.


United Kingdom – WEBWIRE – Friday, February 14, 2014

This definition of a package holiday reflected the holiday market in the early 1990s. However the way in which we book our holidays has changed significantly, with the growth of the internet.

The Package Travel, Package Holiday and Package Tours Regulations were introduced in 1992. The effect of the regulations was to ensure that anyone who is injured as result of an accident that wasn’t their fault, whilst away on a package holiday, could bring a claim against the tour operator in the UK. Regulation 2(1) of the Regulations define a ‘package’ as the “ pre-arranged combination of at least two components of transport, accommodation or other tourist services accounting for a significant proportion of the package, when sold or offered for sale at an inclusive price”.
 
This definition of a package holiday reflected the holiday market in the early 1990s.  However, since the Regulations came into force, the way in which we book our holidays has changed significantly, with the growth of the internet.  The Civil Aviation Authority advised that up to 98% of holidays came under the definition of a ‘package’ when the Regulations were introduced.  It is now thought that only around 50% of holidays come under the same definition.
 
In the case of CAA v ABTA [2006] EWCA Civ 1299, Lord Justice Chadwick stated “The factual question to be resolved on a case by case basis is whether the services are being sold or offered for sale as components of a combination or whether they are being sold or offered for sale separately, but at the same time.”  Therefore, if a travel agent offers a customer a total price covering all services then this is a package holiday.  However, if a travel agent tells a customer individual prices for different components, for example flights and accommodation and then explains that these are all separately available, then this will not be classified as a package holiday.
 
The case of CAA v Travel Republic [2010] EWHC 1151 also looked into the definition of a ‘package’.  Travel Republic advises customers that they act as an agent and do not sell regulation packages.  Customers are offered a choice of flights, hotels, apartments, car hire etc.  Travel Republic states that all they do is highlight the separate prices for the separate components and let customers know that they could purchase one without the other.  These separate components “are ostensibly all sold separately but they can be linked together by a customer to provide all the necessary elements of a holiday and indeed the system consciously facilitates their ability to do this”.  In this case the Court felt the holiday would not come under the definition of a package holiday.
 
Following the above cases, the definition of a package holiday during this time was strongly in favour of the tour operators and travel agents in that they could absolve themselves from responsibility if the services they sold were not performed properly on the basis that they were not selling a package holiday.  Thus making it more difficult to bring an holiday accident claim against them.
 
However, the recent case of Titshall v Qwerty Travel Limited [2011] EWCA CIV 1569 shows that the tide is slowly turning back into the favour of the customer.  In this case, Mr Titshall saw a Teletext advert which advertised a last minute holiday to Corfu, leaving the following day.  Mr Titshall contacted Qwerty Travel by telephone and booked the holiday paying a total price of £569.16 to Qwerty Travel.  The Judge accepted that Qwerty Travel used standard script during the booking which included advising Mr Titshall that they were acting as agents for suppliers in respect of flights and accommodation. The Court had to decide as a preliminary issue whether this claim arose from a ‘package’ holiday or whether the contract was between the customer and the hotel, and Qwerty Travel were only acting as an agent.  In the Court of Appeal, Lord Justice Tomlinson declared that Qwerty Travel were liable to Mr Titshall for the proper performance of the contract as it came under the definition of a package holiday.  It was noted that Mr Titshall was not informed by Qwerty Travel that he could purchase the flights or the accommodation separately. This means that they should have specifically informed the customer that they could have purchased the flights without the hotel or vice versa.  In addition, Qwerty Travel did not explain the service charges and so the Court concluded that these charges must have been a part of the price of putting together the package – “The indivisible cost of making available the two component parts which made up the package.”
 
The cases referred to above reveal how important the evidence is regarding the circumstances in which the holiday was booked and exactly what was explained. The most recent case involving Mr Titshall shows that there is now a higher burden on travel agents to clearly explain the nature of the holiday booking.  This burden is likely to increase further in the future as the European Union are looking to update the Package Travel Directive.
 
The European Commission in July 2013 revealed its proposals for the reforms of the Package Travel Directive.  The idea behind the Directive is to modernise package holiday law and it is hoped that it will result in extending protection to more customised packages.  The European Commission stated that “the reform further bolsters protection for consumers by increasing transparency and strengthening protection in case something goes wrong.”  Before the proposals become law, the EC have still to clarify the definitions of a package holiday and assisted travel arrangements.  These changes will have significant impact on the potential to make a claim arising out of an accident which occurs whilst you are on holiday.
 
For information and advice on making a claim after a holiday accident or illness abroad, Freeclaim Solicitors can help. Open 24 hours a day on 0800 612 7340 for holiday and package holiday compensation claims advice. Or visit their website at http://www.freeclaim.co.uk/


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