Eileen Goes to Court

 

Eileen would tell you that she is just an ordinary person, without GCSEs or formal legal training, but it is there that “ordinary” ceases to be a valid description. Eileen is one of many people who each year are served up a bad deal by the travel industry.

This is a massive industry and although most holidays are perfectly OK, even a small percentage going wrong still results in a considerable number of holidays customers receiving very poor value for money. For those people the fact that 99% of holidays go off without a hitch is no compensation. Their holiday is often ruined.

Given that the percentage of dissatisfied customers is quite small, you would think that the tour operators and travel agents would, for the sake of the industry, fall over backwards to put things right. Sadly, nothing could be further from the truth. The response to complaints is almost invariably denials, bluster and frequently, downright untruths. It is also our experience that the bigger the company, the less likely it is that one will get any sympathy. Small companies care a lot, internet giants couldn't give a damn. Thomas Cook lives somewhere in the middle.

Along with ten others, Eileen booked her holiday to Egypt with Thomas Cook. The glossy brochure promised the usual attractive facilities. What it did not explain was that the hotel had a serious problem with rats and many of the listed facilities fell well short of the brochure description. Eileen and her party complained in the resort and later when she returned to UK. In the resort she received no satisfaction (you can’t reason with rats or the average holiday rep!) and on her return to UK her complaint was met with the usual set of denials out of the book of standard letters used to deal with complaints. The theory is that if you give all offices a book containing a number of standard letters containing the best platitudes and excuses, they can just change a few details before sending them out. The majority of complainants will then go away. Sadly, this system works and the majority do just go away.

Eileen did not go away, she contacted Travelwatchdog.com for advice. Seeing that she had a strong case we advised her to seek proper compensation from Thomas Cook, sending her claim by recorded delivery letter (e-mails are too easy to lose!) Thomas Cook continued to deny liability so Eileen submitted her claim through the court system. Faced with this more formal approach, Thomas Cook set their lawyers to work to prepare a defence. Thomas Cook don't spend a great deal on lawyers and this defence was really of primary school standard, claiming:

a. Eileen does not have a justifiable claim.

b. If Eileen does have a claim you cannot hold Thomas Cook liable as the accommodation is the responsibility of another company: namely AirTours. (Who owns AirTours? Oh Dear! It’s Thomas Cook.)

c. Eileen cannot claim on behalf of the whole party as she was not the lead booking. (Legally this point was valid. However, Thomas Cook may eventually regret labouring the point as the others in the party will all claim individually and there could be additional costs).

d. The hotel was OK, clean and within the standards expected of a hotel with its rating. (If the Thomas Cook standard accepts rats as part of the package there is a good reason for going somewhere else!)

e. Only 40% of the holiday cost is accounted for the hotel, with 60% being the cost of flights. This is a totally spurious argument used a lot by ABTA. Following this argument to an extreme, if you book a holiday and end up sleeping on the streets of Istanbul for two weeks because the travel agent didn’t book the hotel for you, you can only recover 40% of the cost because to get to begging for scraps on an Istanbul street Istanbul you had this lovely flight for which you should be made to pay.

Eileen’s case was dealt with at Northampton County Court by District Judge Glentworth. The Judge awarded Eileen £410 being the cost of her holiday, plus £100 costs. Eileen’s case did not involve a very large sum of money, but the principle confirmed by the award is very important to the holidaymaker. Travel agents and tour operators who take your booking have a duty of care equal to that of any other supplier of goods and services. They cannot get away with blaming those at the other end of the chain who fall below the standards. Before a tour operator sells holidays to a hotel, they have a duty to ensure that the hotel meets the required standards and continues to do so. Moreover, the “Red Herring” so loved by ABTA, about the flight being 60% of the cost just does not hold water and the Judges will recognise the fact. A flight to hell is recognised as being free!

The final message here is that apart from having a great deal of resolve, Eileen may be quite an ordinary citizen but is a great example to others. If you have a legitimate complaint do not be put off even if it means going to the small claims court. It’s not rocket science!

 

Shirley .........v Thomas Cook - York County Court

 

Big travel agents and tour operators are not merely agents without responsibility. They have a contract to deliver what they have promised you.

In February 2012 Shirley and her partner booked, with Thomas Cook, their dream cruise to the Holy Land. Princess Cruises were the cruise line and the cruise was to depart in November 2012. Thomas Cook took the money and issued confirmation documents and the matter rested until a couple of weeks before the cruise was due to depart. Shirley went on-line to download boarding passes and bag tags etc. and found that their cruise had been cancelled and they had been transferred to a Dead Sea and Croatia cruise. Thomas Cook denied any knowledge or liability saying that they had not been informed and they were merely the agents and thus had no liability in the matter. However, they did offer a full refund that Shirley eventually received.

Shirley was devastated at the loss of her dream trip. (It had apparently been cancelled as early as April 2012). Train tickets had been booked and a substantial number of purchases made in readiness for the holiday. We advised seeking compensation from Thomas Cook who waved away the claim saying that it was not their fault and came up with their regular but spurious claim: “We are just the agents. We take the money but have no responsibility beyond that. We don’t pay compensation”

We advised that Shirley should take her claim for £1000 compensation to the County Court under the small claims procedure. Shirley did just that. Thomas Cook entered a defence that they were - you guessed it! “Just the agents and should not be the defendants”. In May 2013 a mediation hearing was held, but TC still insisted they should not be the defendants although they did offer a paltry £300. Shirley rejected this and went to court where Thomas Cook were represented by a hot-shot lawyer whose job was to make certain they did not have to meet their clear responsibility. On 6th August the York County Court Judge took a different view and awarded Shirley her £1000, dismissing the stance of Thomas Cook that they were not responsible for delivering the contract they had made with Shirley at the time of booking.

The message here is clear. This is the second time Thomas Cook has lost this type of case in a couple of months. It confirms that if a travel agent takes your money and contracts to provide you with a holiday, that travel agent is responsible for delivery. They cannot hide their maladministration or failure behind the shield of only being the agent. In this case Thomas Cook took the money and had a duty to Shirley to monitor her booking and keep her informed of any changes. They failed to do so. Accordingly, they were responsible for Shirley losing her holiday and could not deflect the blame to others. Travellers should be encouraged by this confirmation that in a poorly regulated consumer sector, the courts are prepared to back legitimate claims.

 

 

 

Recompense injury with justice,and recompense kindness with kindness.

Confucious c550-c478 bc