We have been contacted by a large number of holidaymakers, confused and angry by what they see as being forced into a potentially dangerous or ‘risk destination’. Many seek to understand what their rights are where a change in the political fortunes or direction of a country, raises a risk to the operation of the holiday contract or to personal safety. The same scenario would arise for example, where a weather event, such as a hurricane or tsunami, caused extensive damage to a holiday destination. We refer to such scenarios as ‘risk destinations’ because they relate to man-made or natural events/disasters – these scenarios have a greater potential to arise in certain regions of the world, over and above that which could be experienced on continental Europe. Where the risks arise, we say the viability of the contract is threatened, either through the non-operation of the contract, a risk to personal safety and in such instances they give rise to rights for holidaymakers.
You should be warned that these are complex issues and there are no immediate answers to these problems. However, we consider that this guide will help you in the event that you are faced with such problems, whether you are in resort or about to travel to such a ‘risk destination’.
We would also point you to our guide on the ‘principles’ to be used on a ‘risk destination’.
Articles of Interest
The following articles have been recently written and raise a number of considerations for UK holidaymakers:
Are Holidaymakers Foot Soldiers in Foreign Policy?
Questions of Security & Risk for British Holidaymakers in Egypt
Shameful Treatment of UK Holidaymakers to ‘Risk Destinations’
The situation in Tunisia & Egypt developed into what we refer to as a 'risk destination'. By that we define such a destination as being potentially unsafe, threatens the viability of a holiday contract and also possibly negates any travel insurance (subject to any view that is expressed otherwise by your travel insurance provider). Such a situation in our view, gives rise to the important issue of 'significant change' to your holiday contract.
What are the key rights?
Definition of a Package Holiday
To begin, reference should be made to The Package Travel Regulations. Regulation 2 states that in order to qualify as a package, the product must last for at least 24hrs and consist of 2 items; transport, accommodation and other tourist services not ancillary to transport or accommodation.
Alleged ‘Agent’, ‘DIY’ or ‘Dynamically Packaged Holidays
There is a real threat to the consumer rights contained within the Package Travel Regulations. Travel companies are seeking ways to evade their responsibilities, by creating so-called ‘new online business models’. A growing number of holidaymakers are opting to book their holidays online. When problems occur within these holiday contracts, many holidaymakers discover that their travel provider claims that they were only acting as an ‘agent’ and that any complaints must be addressed to the hotelier, Cruise Company or airline directly. This presents serious problems for any holidaymaker, not least of which is the prospect of pursuing their claims in a foreign jurisdiction and defining any limitation periods. You must not assume that the travel company providing this information is correct, there are many factors at play and you may benefit from the protections provided by the Package Travel Regulations.
Assumption of a Package Holiday
We will assume that you have booked a Package Holiday. This is important because if you have booked a Package Holiday, then your rights are contained within The Package Travel Regulations. If they argue that you have a DIY or component holiday, then it is argued that your only rights are those contained within the contract. Whilst this might technically correct, a Court of Appeal decision, along with a Guidance Note produced by the Department for Business Enterprise and Regulatory Reform (now BIS) has stated that such a proposition will not be valid, if at the time of the booking, the documentation, sales literature and the perception of the consumer was that their booking was for a Package Holiday.
Significant Changes Before Departure
If it is the case that this is a Package, then it would appear that 'significant changes' are being made to your holiday before you depart. If a significant change is being made to your holiday, then your pre-departure rights are contained under Regulations 12 & 13 of the Package Travel Regulations. We have published 2 articles on these regulations and the links to them are listed below:
Failure to Provide a Significant Proportion of Services After Departure
If you travel, you should be aware that you potentially have further recourse under the Regulations, where a significant proportion of the services contracted for cannot be delivered. Clearly you will only know what the situation is when you get to your resort. However, Regulation 14 provides you with substantial rights whilst you are in resort. Under the Regulations, if it is clear that services cannot be delivered, then the tour operator must find a solution to the problem. They must offer you that solution and you must consider their offer. If you decide to reject their solution, then you have to offer clear reasons why you are doing so. Upon rejection, they must then return you to your first point of departure and offer you compensation.
There is nothing under this Regulation which stops them from providing extra transport, accommodation or compensation because of some unforeseen or unusual incident. There is no apparent defence provided under Regulation 14, except perhaps where they seek to rely on their defence under Regulation 15 (Unusual circumstances etc).
The Unfair Trading Regulations
Given the circumstances you have outlined it may be that you could benefit from the provisions contained within The Consumer Protection from Unfair Trading Practices 2008. This law, introduced in May 2008, deals with the commercial practices of a trader and creates offences of misleading actions, misleading omissions and aggressive commercial practices. We have written an article on these Regulations with 2 case studies at the end, to help you understand how these Regulations could potentially apply in your case and what action you can take to deal with any breaches. If you follow this link you will be directed to the article along with a link to a letter to Trading Standards -
Frustration of the Contract - Risk Destinations
This is a difficult concept and this can only be fully explained by a suitably qualified lawyer. However, we shall seek to explain this as simply as we can.
If something happens without the fault of either party, to make the performance of the contract impossible, illegal or radically different, then both parties would be excused from the contract.
If the contract is deemed to be frustrated then the Law Reform (Frustrated Contracts) Act 1943 means that any money paid is recoverable and any other money due ceases to be payable (there are exceptions to this rule - expenses etc).
If one party gives an absolute undertaking to perform the contract, then the principle of frustration will not it seems generally apply (so if they agree that you will see/do everything and provide an indemnity for failed travel insurance cover or make arrangements to cover you, then it seems likely that they would strengthen their argument - we have not seen anything to date from any holidaymaker where this undertaking has been given).
It is clear from all calls we are receiving, that the tour operators are not claiming at this time that a 'force majeure' has arisen (compare that with many travel insurance companies who are apparently taking an opposite view - compare also the decision by various foreign governments to remove their citizens). This is an important point!
From what we can see, the tour operators are claiming that they are acting on the advices of the UK Foreign Office and their information on the ground.
As you can see from our link above (Questions of Security & Risk), there are at least questions whether their position is correct.
You can for example see that there are holidaymakers who come what may, will travel to such a destination, others are more cautious.
Another question is this; is a contract a one-way street, must the Consumer accept everything that a tour operator states to the exclusion of their own research?
Contracts can be frustrated by events, but these 'events' tend to be dealt with by 'force majeure' clauses within the contract - if then the tour operator does not rely on 'force majeure' but there are other factors that could affect the operation of the contract, such as food shortages, fuel shortages, curfews, security concerns, lack of travel insurance (contrary to the holiday companies own terms and conditions) etc, is not the Consumer entitled to claim that the contract is frustrated on submission of his evidence?
As we understand it (taken from the Textbook - Contract Law, Text, Cases & Materials - Ewan McKendrick - Pages 877 to 883) in the case of Taylor v Caldwell, the Judges thought that in order to claim that the contract is frustrated they would have to look at the contract itself and how it was drafted, then they would ask if what ever was contracted for would be made different by the events. If then the contract was seen to be radically different, then 'Frustration of the Contract' could come into play.
In another case, Ocean Tramp Tankers Corporation, we can see that the Judge held that in order to claim that the contract is frustrated, the frustrating event had to be more than 'onerous' or more 'expensive' (local conditions on the ground/lack of travel insurance?) - it had to be positively unjust to hold the parties bound.
In the Holiday Law Textbook (David Grant & Stephen Mason), there is a discussion on P.238/239 about the consequences of what they refer to as 'Anticipatory Frustration'. They cite an example of the Gulf War of 1991 and whether holidaymakers due to travel to India would be directly affected by the outbreak of war. The problem was that it would be likely that aircraft would have to be re-routed, thus imposing a greater cost to the tour operator, greater travelling time, in other words affecting the operation of the holiday. In determining this point, they asked questions as to when the frustration would arise - when Kuwait was invaded; when the UN took acton; upon the build up of allied forces; if hostilities appeared imminent, or when the war started? They state, "The law seems to be that even if hostilities had never broken out if it appeared to a reasonable person that holidays were about to be affected then a decision to treat the contract as frustrated would be justified". They go on to say that FCO warnings would be relevant to support a tour operators position, but, given our own observations in the article above (Questions of Security & Risk), can this be correct? Again, we emphasise your own research and the availability of Travel Insurance and how this plays with the terms and conditions of the tour operator.
In addition, your research is also the key - what did you book, did you plan on going to the Pyramids/Luxor/Sahara etc, is the product now substantially different because of these events, have you lost the promise of the product and the ability and freedom to widely enjoy the product?
We emphasise the importance of Travel Insurance to Risk Destinations. If your insurer will not cover you, then there is the potential for you not only to be in breach of contract (ie travelling without insurance as per the tour operators terms and conditions), but that the consequences of you travelling as such could have dire financial and personal consequences!
If Insurance is not available, you should consider asking the travel provider to provide you with a written indemnity that they will cover all of your potential losses – DO NOT sign such a document without having it checked over by a Solicitor!
So, how can I deal with this?
First, consider the evidence you have, arrange it, think about what you want to say – do so carefully and calmly! Make sure you maintain a written record of anything said to you!
Significant Changes Before Departure
We would suggest that you set out the full facts of your complaint. You should rehearse the issues within the 2 articles (12 & 13 above) and call them. You should argue that a significant change has been made to your holiday contract, and that they should provide you with the rights contained within the regulations which are also echoed within the ABTA Code of Conduct (assuming of course that they are members of ABTA) - You should ask for the full implementation of your rights; obtain details of the person you speak to and ask for a confirmation letter or e mail of the issues discussed.
Frustration of Contract - Risk Destinations
Again we would suggest that you set out the full facts of your complaint. You should rehearse the issues raised in our points above. You should argue that a 'Frustration’ of the Contract has arisen, or that you ‘Anticipate’ that it will arise, citing your evidence and any difficulties you have with Travel Insurance. You should ask for the full implementation of your rights under this doctrine (ie refund etc); obtain details of the person you speak to and ask for a confirmation letter or e mail of the issues discussed.
In recent days, some travel companies have sought to replace the travel insurance of some holidaymakers, where their original insurance company had decided that if they were to travel, they would not be covered. If this is your situation, we would strongly recommend that you do not accept at face value any offer by any travel company to replace your travel insurance. If this is offered to you, you should insist that they provide a positive written statement from the travel insurance company that they will cover you if you travel. If your current travel insurance provider withdraws before you travel and the travel company insist that you do not need insurance, you should insist that they provide a positive written statement to state that they will indemnify you against any losses to ensure that you can comply with their terms and conditions with regard to travelling with insurance.
Whilst we hope that you will be able to use this information successfully (it would be legitimate to do so), it can only ever be considered to be a brief guide! Only full legal assistance can guide you further on this issue if the tour operator rejects your argument(s)!
If you have been affected by any of the issues raised here, no matter what your destination, then please contact us at HolidayTravelWatch.
For further details on our services, read our Legal Notice.