Section 75 - can i claim for this?

moonrakerz

MarkyMarkD wrote: »

Nobody has even gone as far as "getting compensation in full for the cost of replacement flights/holiday",

Sorry, but didn't you read my previous post ? I did !

That is a fact and for you to say that nobody has done that is just not so ! For you to say this is just persuading people not to claim that to which they are legally entitled.

Of course the credit card companies will come back with all sorts of misleading statements - that is why I said you must understand what you are doing. You clearly don't !
For you to say that "And hence s.75 protection doesn't compensate you for consequential losses" just proves this point !
Section 75 has nothing whatsoever to do with you claiming damages from a card issuer - I have already said this, but you seem to ignore it or don't/won't understand it. It merely places the responsibility for a breach of contract for a credit card transaction equally on the card issuer.

You use the term "consequential loss" and claim that this is excluded in your contract with the airline. Again, this shows your ignorance of the Law.
1. The £500 loss at the hotel is not a "consequential" loss, it is a direct loss. A consequential loss would be a claim for profits that you might have made had you not missed a business meeting due to the Zoom failure.
2. Consequential losses, anyway, are covered under Unfair Contract Terms Act which limits their use.
3. A recent High Court judgement confirmed the limited use which these exclusion clauses can be put: "The Judge decided that a clause excluding all (consequential) financial loss was unreasonable because it has the effect of depriving the customer of any remedy"

As I have said so many times before - you must understand what you are doing - if you do, you have a very high chance of success !

YorkshireBoy

moonrakerz,

I think where many of us (in fact all of us discussing this with you) are perhaps missing your point is that you are quoting the wording from one piece of legislation (CCA/section 75/OFT guidance), and then using this to highlight something which is (or may be) possible OUTSIDE this legislation?

This is perhaps where the confusion lies?

A fair assessment?

MarkyMarkD

moonrakerz wrote: »

Sorry, but didn't you read my previous post ? I did !

That is a fact and for you to say that nobody has done that is just not so !

You are selectively quoting me. I said that

All of the journalistic efforts ...

refer to lesser outcomes than the outcome you claim to have achieved.

I am not (especially) challenging what you claim to have achieved. But I am challenging your advice, based on what you have achieved.

There are many cases on MSE where people have obtained more than they entitled to. Read the MEAF (mortgage exit fee) refund threads, for example. But those individual cases don't change the law or make those extra-ordinary recoveries legally valid.

Section 75 has nothing whatsoever to do with you claiming damages from a card issuer - I have already said this, but you seem to ignore it or don't/won't understand it. It merely places the responsibility for a breach of contract for a credit card transaction equally on the card issuer.

This quote is just silly semantics. Section 75 makes the credit card issuer jointly liable with the original supplier. I agree. But the only practical use of that is that it makes them liable to reimburse you - effectively, to pay you damages. I don't see what you are trying to prove with this pointless comment TBH apart from a bit of unnecessary abuse.

XL's terms and conditions specify merely that their only liability in the event of cancellation is to refund the price of your ticket - plus compensation of up to £25 per seat, and that only if cancellation occurs less than 56 days before travel. It is this sort of contractual restriction on compensation that I am referring to. Whether the loss of hotel booking costs is consequential or direct isn't the point - they are costs which XL's contract terms (and probably those of all other airlines) exclude.

I understand (I think) that your legal challenge is based on such restriction on compensation being an unfair contract term, and I understand (if that is what you're saying) where you are coming from. But equally well I believe that there is extremely limited evidence of anyone succeeding in this type of claim - other than yourself.

If people aren't succeeding in this type of claim when the claim is made directly against the airline, I would suggest that the chances of such claims succeeding when made against the card operator under s.75 are even more limited.

As is often the case, I am questioning your arguments as devil's advocate and not because I fundamentally disagree with your point of view. Interestingly enough I have a dispute with a holiday company "up my sleeve" but which I've not pursued at court or (successfully) with the credit card operator yet. I will PM you details of the case and see whether we can progress it jointly if that's OK with you.


Regarding YB's point, I don't think that Moonrakerz is actually seeking to go outside s.75 protection. But Moonrakerz' view of the airline's liability is greater, I would argue, than most commentators - including Martin - and therefore the card operators believe is the case.

moonrakerz

YorkshireBoy wrote: »

moonrakerz,

I think where many of us (in fact all of us discussing this with you) are perhaps missing your point is that you are quoting the wording from one piece of legislation (CCA/section 75/OFT guidance), and then using this to highlight something which is (or may be) possible OUTSIDE this legislation?

This is perhaps where the confusion lies?

A fair assessment?

The point I am trying to make is that many people do not understand the legislation.

Let me try one more time...

Section 75 of the CCA means that a credit card issuer bears the same responsibility for a "breach of contract" as the supplier - no more. You cannot ask for your money back from Zoom under Sect 75 - that is meaningless. I have seen many posts on MSE where people have asked for a refund quoting 75 to the card issuer, then they wonder why the card issuer gives them the "runaround".
You ask for your money back, and other losses you may have incurred, under the Law covering breaches of contract NOT Sect 75. You may of course point out that Sect 75 transfers the responsibility of the failure to fulfill the contract to the card issuer, to prevent the card issuer saying: "nothing to do with me Guv !"
There are many, many precedent setting examples of what can be claimed under these Laws, these include direct and "consequential" losses (although, there are some grey areas under consequential).

To say "Martin's own article on the XL collapse doesn't mention any possibility of getting back anything over and above the cost of the flights/holiday paid for up front, apart from suggesting that the FOS are saying there's a "slim chance" of getting back the actual cost of a flight back home if you are stranded abroad." is misleading at the very least !

I haven't read Martin's article so I cannot comment on the accuracy of the quote above. I will quote again from the Financial Ombudsman's site:-
"The claim is not limited to the amount of the credit card transaction. Customers can claim for all losses caused by the breach of contract or misrepresentation"
The statement about the "slim chance" of getting a flight back home is completely wrong. If you have purchased a return air ticket (on a credit card) and the airline goes bust whilst you are abroad, the remedy is simple - you buy a return ticket home with another airline, on the same card, then you write to the card issuer saying that the cost of the return ticket is their problem and you just don't pay it ! (Quoting Sect 75 AND breach of contract) You have the Law on your side !

I made my claim (over Maxjet) and got everything I asked for - I really worry that some of the statements being made on this site are leading many people to believe, incorrectly, that what they can claim from their card issuer is limited.

Final word on this:- please, please read the Financial Ombudsman's site on Sect 75; then read up on breaches on contract before you write to your card issuer.

loates123

I haven't read Martin's article so I cannot comment on the accuracy of the quote above. I will quote again from the Financial Ombudsman's site:-
"The claim is not limited to the amount of the credit card transaction. Customers can claim for all losses caused by the breach of contract or misrepresentation"
The statement about the "slim chance" of getting a flight back home is completely wrong. If you have purchased a return air ticket (on a credit card) and the airline goes bust whilst you are abroad, the remedy is simple - you buy a return ticket home with another airline, on the same card, then you write to the card issuer saying that the cost of the return ticket is their problem and you just don't pay it ! (Quoting Sect 75 AND breach of contract) You have the Law on your side !


what happens if u are stuckabroad and buy another flight to get home on a different banks debit card but paid for the flight with the company that has gone bust on a different cc

chattychappy

I have had the pleasure of reading moonrakerz's posts and am in agreement with his analysis!

Written contracts often attempt to restrict liability for breach. They might have terms that eliminate liability in certain situations or limit the damages they have to pay out. Written T+Cs are just the starting point for what the real contract is. The law (eg case law, statute such as UCTA, SOGA, UTCCR) implies certain additional terms, deletes certain terms, modifies certain terms.

So out of the melting pot comes the "real" contract, ie what is enforceable. You can then determine: was there a breach and if so was it of a term or a condition? That determines the availability of certain remedies - eg damages, rescission (ie cancelling the contract) etc. When assessing damages, courts apply certain principles, eg those developed in Hadley v Baxendale (1854) 156 ER 145 (google if interested) and other case law.

You cannot automatically ignore clauses that restrict liability. Just because they are to your detriment doesn't make them unenforceable. By the same token, a merchant cannot automatically get away with saying that their liability is limited to the value of the transaction.

That is basic contract law.

s75 simply makes the CC jointly liable with the merchant (subject to certain qualifying criteria). It doesn't add any new rights/remedies - rather s75 just means that the above process is applied to the CC as it would be the merchant. So, as per my paragraph above, " a CC cannot automatically get away with saying that their liability is limited to the value of the transaction."

loates123

http://www.choose.net/money/guide/articles/credit-cards/section-75-of-the-consumer-credit-act-guide.html

does not say anythink about using the same card/company to pay for the new flight home does anyone know :>

loates123

anyone as credit card company are saying i should of used the same card

chattychappy

If a party breaches a contract, the wronged party has a duty to mitigate losses.

Ideally you give the party in breach a chance to remedy the situation. By putting the new flight through the same card, you are slightly improving their situation.

But I don't see that it's fatal (particularly if the airline/agent would have charged more accepting a CC). If your costs were reasonable in overcoming the breach then you should be able to recover them. The CC's refusal to pay up because you put the new flight through a different card seems arbitrary and unreasonable to me.

stfc

You don't have to use the same cc for the flight home, or any other consequential loss.