Argentarius' holiday woes

[argentarius]

I am a bit ashamed to start this thread after reading so much about Gobby's holiday situation, but I suppose one person's great suffering doesn't negate my very slight woes.

Sorry it's a bit long and thanks for the patience of anyone who reads it all the way through!

The history of this is as follows:

1. I booked a holiday for my wife and small daughter, flying in November to Turkey with what now turns out to be a very poor quality tour operator, through a direct selling travel agency (not one of the evil Teletext-only operators, but a national firm with something of a better reputation). The deposit of around £300 was paid by credit card; the remainder was paid by cheque.

2. The tour operator cancelled the holiday with 5 weeks to go.

3. The travel agent phoned me to say what had happened. They didn't offer a replacement holiday (and nor did the tour operator); they did attempt to sell me a completely different (and far more expensive) equivalent holiday but I wasn't having that. Eventually they refunded me all the money paid (but not a penny more).

4. I asked the travel agent where my compensation was. They claimed not to be responsible/not to have a clue/whatever.

5. I wrote to the travel agent asking them for my compensation. I was asking for the contractual amount of compensation for cancellation by the tour operator - a measly £10 per passenger or £30 in total.

6. After a month, I got a letter back from the tour operator, via the travel agent, saying "we've refunded you the price of the holiday and that's all you are entitled to". No explanation for why the contractual terms don't apply.

7. I complained to the credit card provider under s.75 CCA asking them to refund me the £30. They temporarily credited my account, failed to bother to sort it out with the tour operator or travel agent, and then re-debited my account.

So now, 6 months later, I have obtained precisely no redress and no compensation.

Bear in mind that, the whole time, I've only been seeking the £10 per head contractual cancellation compensation - not the cost of buying another holiday at 5 weeks' notice which would have been significantly more. In fact, we travelled in January to Tunisia instead and the total holiday cost was probably only slightly more.


The credit card company have been appalling throughout. I've written to them several times, phoned them several times, been lied to them*, and still got nowhere.

* The last time I phoned their main call centre, they told me that they'd spoken to the travel agent and the travel agent had agreed to refund me. The travel agent's call logging system shows no contact from the credit card company since last year.

The credit card company keep asking for supporting documentation - but, in this case, there is virtually none. The whole transaction was done on the phone. I've already sent them a copy of the tour operator's Ts & Cs (but they could have got these online themselves anyway).

I am somewhat despairing of what to do. I have thought about a LBA with an attachment of all the documentation once again. Does anyone have any other suggestions?

I know it's only £30, but it's the principle at this stage. If I was really stroppy I should have been seeking the cost of an alternative, last minute, holiday, but I'm not trying to be that difficult at all!


PS - the only possible legal justification that I can see for the tour operator not to pay the compensation is that their Ts & Cs exclude them from having to compensate where the cancellation is due to force majeure. I honestly don't believe that this is the case - I 100% believe that they chose to cancel the charter flight because they hadn't sold enough tickets. But even given that, they could have flown us from another airport, or on another airline, so it's a very feeble reason to fail to supply our holiday.

Both the tour operator and the travel agent are in breach of the ABTA code because they failed to attempt to provide a substitute holiday, but I get the impression that ABTA are a waste of space and don't really want to go down that route if it's going to be a waste of time and effort.

[Froggy]

Re: Argentarius' holiday woes

Argentarius, have you got the contract and cancellation details within it, and can you post them on the forum so people can take a look and advise. The credit card company are not the ones who should compensate you for a holiday cancellation.

[scoobydoo]

Re: Argentarius' holiday woes

I know what you are saying that it is only £30.00 but if theyget away with that for 1000s of customers it becomes a rip off.

[TUTTSI]

Re: Argentarius' holiday woes

Hi Argentarius

I was contacted recently by a TV programme who were looking for holiday related problems:

Elizabeth.Woodward@whizzkid.tv

I have given you the link in case you want to tell them your story to see if it is of interest to them! but only after you have exhausted your current lines of complaint.

I would have thought that you should be compensated for the agrevation it caused you and your family having to re book a holiday at short notice.

Good Luck

[argentarius]

Re: Argentarius' holiday woes

Thanks for your comments.

Froggy, whilst I agree that the tour operator are responsible for the situation, they are seriously a shoddy company which is why I have been pursuing the card operator instead.

Cancellation section of their booking conditions follows, with £10 per person bit highlighted (the £20 per person is if you accept the compensation in vouchers):

8. Changes and Cancellations By Us
As we plan holiday programmes many months in advance, it is sometimes necessary to make changes to the holidays described in this brochure. We reserve the right to make changes after you have confirmed your booking. Although your confirmation and subsequent invoices will show the latest route and timings, final timings will be confirmed on your tickets and may change after that due to circumstances beyond our control. We reserve the right to alter flight departure times within a period of twelve hours of the notified time of departure without responsibility for any loss or damage arising from such a change. The scheduling of departure times may be varied by Airport Authorities or other factors beyond our control after this brochure is printed and the details are given for your guidance only. We reserve the right to amend a flight to become non-direct should it be deemed necessary to do so or alter the airline or aircraft type operating your flight. These are not major changes. Usually, only minor changes are made to arrangements. However, if we have to make major changes, we will tell you as soon as we can and you then have a number of options available to you. Examples of major changes are a change to UK airport , change of resort the accommodation originally booked to one of a lower category or standard. If we make a major change, or if we cancel your original booking, you may: a/ accept the new holiday offered by us, or b/ Accept a replacement holiday from us if one is available (if this is of the same or higher quality you will not have to pay more, if it is of a lower quality we will refund you the difference in price), or c/ cancel your holiday altogether and receive a full refund of all monies paid. In the event of cancellation by us, b/ & c/ above will apply. In addition we will pay you compensation as per the following scale. Cash refund Credit Voucher More than 56 days Nil Nil 15 ¿ 56 days £10 £20 00 ¿ 14 days £15 £30 For children paying less than the adult price the compensation is paid on a pro-rata basis. Compensation payments apply to all holidays booked including reduced price or special offer holidays. However in the case of reduced price or special offer holidays compensation payments will be 50% of the above rates. IMPORTANT NOTE: We cannot offer compensation in circumstances where the performance of the agreement is prevented by reasons of force majeure i.e. war, threat of war, riot, civil strife, industrial disputes, terrorist activity, natural or nuclear disasters, fire, flood, earthquakes, adverse weather conditions and other events beyond our control. CHANGES AFTER THE START OF YOUR HOLIDAY: In the unlikely event that we have to change your holiday arrangements after your arrival in resort. We will do our best to find you accommodation of the same or higher standard in the same or similar resort. We will compensate you except in circumstances of force majeure, see Important Note above

Note that they didn't offer us an alternative holiday as they should have done, and THEY cancelled the holiday rather than giving us the option of doing so.

They haven't told us that force majeur applies, and I can't see how it would do. They have simply fobbed us off, apparently as a matter of policy (when you read other people's complaints about them).

Another one from a review forum online:

Booked flights months before to Turkey. Canceled with days to go. No offer of compensation. 12 months later still no sign of money despite several "cheque is in the post" as far as I am concerned.

[Guest]

Re: Argentarius' holiday woes

They have breached the contract of supply with you and your loss is the loss of a bargain. You may have been able to obtain the holiday elsewhere, but would lose the value of the deal you struck with them. The general principle is that the measure of damages for breach of contract is intended to place the injured party in the same situation, as far as money can do it, as if the contract had been performed (Robinson v Harman 1848 1Ex850.)

They accepted your offer, acknowledged it and accepted your payment method and deposit and, as you may be aware, in Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, acceptance, even automatic is a contract formation point.

Therefore you may reserve the right to issue a claim against them for breach of contract. I would do this in preference to issuing a claim for just £30.

In addition I would consider their terms and conditions and in particular the section covering compensation to be unfair and unenforceable at law. Any contractual term which seeks to exclude liability in this way is unenforceable at law and in particular where it is clear that the purpose of the contract is to supply more than the ascertainable face-value of a non-repeatable benefit with no market value.

If you feel it is worth it, you could lodge a complaint with your local Trading Standards office and, should the situation not be resolved swiftly, raise a formal complaint to ABTA concerning their conduct regarding your booking.

[scottishlass]

Re: Argentarius' holiday woes

Just want to wish you good luck with this Argentarius,.

[theGobbyOne]

Re: Argentarius' holiday woes

Good Luck Argen!!!!!!!!!!!!!!!!!!

[Sapphire]

Re: Argentarius' holiday woes

Go get 'em Argie :okay:

[enaid]

Re: Argentarius' holiday woes

Well I'm looking forward to the outcome of this, like you say it's not the fact it's just £30 it's definitely the principle of it Good Luck Enaid x

[argentarius]

Re: Argentarius' holiday woes

Thanks Cetelco for the analysis and to others for the good wishes.

I agree, in principle, with everything Cetelco says. The £10 per person limitation of liability clause is obviously unfair. The tour operator clearly breached our contract, and caused us to lose a bargain.

It would probably be easier to demonstrate our loss if I had, in fact, replaced the holiday on a "like for like" basis, but I suppose that I can demonstrate the value of an alternative holiday to a similar hotel, in the same resort, at the same time of year, with another tour operator - or, indeed (and this might be more valid) the same hotel for the same time of year in 2008 rather than 2007 - but they don't seem to be offering these at the moment.

The amount I could claim on a "loss of bargain" basis would be quite a lot. The total cost of the original holiday was c.£600 for 3 people for 2 weeks all inclusive. The best price somewhere else would have been around £1,500.

If I was the tour operator, I would try it on with:

- firstly, some sort of baloney about it being outside their control; and if that fails:
- their hotel isn't as good as the one I'm comparing with;
- their flights aren't as good/convenient as the ones I'm comparing with.

Given the joint liability of the card issuer, would you issue joint proceedings against the tour operator and the card issuer? Can you do so?

Because they are such a cr*ppy company (the tour operator) I do wonder how easy it would be to enforce judgement against them, if things get to that stage.

[Guest]

Re: Argentarius' holiday woes

You are quite correct that obtaining a judgment is a great deal easier than actually getting paid.

You may issue a claim against your credit card issuer alone however. Section 75 of the Consumer Credit Act 1974 allows this because any claim you make would be based on a breach of contract. Section 75 of the Act makes a connected lender jointly and severally liable with any supplier for any breach of contract or mis-representation by the supplier. The provisions apply to any single item to which the supplier has attached a cash price of between £100 and £30,000. Thus your card issuer is potentially liable not only for the value of the card transaction itself but also the value of the item (if greater) and any consequential losses caused to you arising from the breach or misrepresentation. You will need to rely on this as you only funded the deposit with the credit card and you paid the balance by cheque.

In your case, given the conduct of the tour operator, I would be tempted to issue proceedings against both them and your card issuer. Under s.75(2) of the Act the card issuer has a right of indemnity against the tour operator for losses incurred including costs reasonably incurred in defending the action.

Finally, something that struck me after I wrote the above is the Consumer Protection Act 1987 which makes it a criminal offence to give consumers a misleading price indication and retailers can be fined up to £5000 each time a consumer is misled. Given your point 3 above, do you think that your holiday was genuinely available at the price you paid?

[argentarius]

Re: Argentarius' holiday woes

Thanks again.

I honestly do believe that the holiday was available at the advertised price; I'm pretty sure that, had they filled the plane, they would have supplied the holiday at the price quoted. But equally well, their margins were probably incredibly slim because of the bargain price and that meant that they were more likely to cancel for economic reasons.

But the fact they couldn't sell enough holidays isn't my problem, and doesn't (IMHO) give them sufficient grounds to cancel without compensation. Indeed, ABTA's rules specifically cover this - and suggest that it's OK for tour operators to do so in these circumstances, provided they stated up-front that the holiday would only run if a certain number of tickets were sold. You certainly see this proviso mentioned in the advertisements of coach tour operators, so it's not a theoretical rule which is never complied with, either.

Even given the grounds for cancellation I refer to above, ABTA rules require the tour operator to offer an equivalent holiday, not to simply leave you in the lurch.