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Holidays from Hell

by Norman Geddes

THIS month we’ll look at what you can do if you’re unfortunate enough to experience a holiday from hell, or if your vacation just does not live up to reasonable expectations in a material way.

I’m going to limit myself to package holidays. In the UK, anyone who offers package holidays for sale must comply with the Package Travel Regulations 1992. These set out travel organisers’ responsibilities to their customers, and remedies available to them should there occur a breach of the regulations.

The regulations provide consumers with statutory legal rights against tour operators by making clear to operators that they have legal responsibilities to their customers. The Regulations also enable dissatisfied holidaymakers to pursue their case with a single supplier, the travel organiser, instead of with individual suppliers such as airlines or hoteliers.

Where a tour operator has failed to honour its contractual obligations to a customer, it may be liable to pay compensation.

The first thing to emphasise is that if you think that you have reasonable cause for complaint, then you must first register your dissatisfaction while you are still on holiday, in order to give the tour operator every opportunity to rectify the situation. If you fail to do this, it will undoubtedly affect the amount of compensation that you are likely to receive, or even mean that you receive nothing at all.

You should communicate your complaint immediately to your local tour representative at the resort where you are staying. The regulations state that your tour operator must supply you with his or her name, address and telephone number prior to your departure.

One of the most common causes of complaint is when a holiday does not match up with what has been described in a brochure. A tour operator does not have to provide a brochure. However, where he does so, the Package Travel Regulations require that it must contain accurate information in relation to certain specified matters, including the type of accommodation on offer and its location. If you think you have been misled by material in a brochure, you should report it to your local Trading Standards Department who will investigate as appropriate.

There has been a catalogue of cases where holidaymakers have been awarded damages for inadequate accommodation. For example when a holidaymaker was first put in a room with fungus and slime on the wall and then moved into another room from which beetles later emerged, damages were awarded for breach of contract. In another case, this time in Malta, the apartment had not been cleaned, the toilet had broken away from the wall, the mattress was stained with blood and urine, and green mould were found in the fridge. A witness described the place as “grotty, grimy and horrible”. The court awarded damages for breach of contract for the cost of the holiday, which was completely wasted, and for discomfort and distress.
In Scott and Scott v. Blue Sky Holidays (1985) the plaintiffs booked a four-star hotel in Tenerife. They were put into a cramped room without twin beds. Their meals were greasy and cold. Because the holiday was supposed to be luxurious, the court would normally have awarded substantial damages, but as the plaintiffs had not mitigated their loss by complaining on site during their holiday, the amount of their award was reduced.

If the consumer believes they have a claim in relation to their holiday, they may obviously go to court to seek compensation under the provisions of the Package Travel Regulations (or the common law if the holiday was not a package). Usually such a claim would be made in the Sheriff Court here in Scotland.

But rather than going to court, which may take time, be expensive and stressful, the consumer has several alternatives to court action. One is to reach an amicable settlement with the tour operator. The ABTA Travel Agents’ Code of Conduct encourages travel agents to “reach an amicable and speedy solution” in the event of a dispute, and the Tour Operators’ Code includes a similar provision.

ABTA also offers a Conciliation Service, which consumers may use when attempts to resolve a dispute amicably have failed. Consumers who choose to try this means are not precluded from later going to court or making use of ABTA’s Arbitration Scheme if the outcome is unsatisfactory.

Disputes that cannot be resolved either amicably or through the Conciliation Service can be referred to the ABTA Arbitration Scheme.

Use of the Scheme is entirely voluntary, but consumers who opt to use the Scheme have to agree to be bound by the arbitrator’s decision, and cannot then go to court if they are unhappy with the result.

The scheme may be used for claims up to £1,500 per person, or £7,500 per booking form. However, no personal accident, injury or illness claim can be referred to arbitration. Use of the Scheme has several advantages for the consumer. It is inexpensive – there is only a small registration fee to pay, and liability for the expenses of the arbitration are limited to twice the amount of the registration fee.

The Scheme operates on the basis of written submissions only – there is no hearing. This has the possible advantage to the consumer of avoiding the stress of a personal appearance, but on the other hand both the consumer and the tour operator are to an extent disadvantaged by not being able to make their case in person, which might have a greater effect upon a sheriff in court than written documents would upon an arbitrator. There is also the problem that consumers may not be able to express themselves effectively on paper.

Interestingly, research by the consumer magazine Which? suggests that compensation awards made by arbitrators in favour of consumers under the Scheme tend to be lower than awards made by the courts. This perhaps suggests that the fact that consumers cannot present their case in person does affect the amount of compensation awarded.

If you experience a holiday from hell, a solicitor will be able to advise you about the viability of your case and how best to proceed with it. But don’t forget what I said earlier about making your initial complaint to your tour representative while you are still on holiday.

Norman Geddes is senior director of Ayr-based solicitors Frazer Coogans.

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