Section 75 holiday claim advice

ireynolds1982

Hi all,
I have recently been on my honeymoon which involved a 4 days on a chartered catamaran which I paid in full on my Tesco clubcard credit card (within the boundaries of section 75) specifically for protection.
The main purpose of the trip was for diving and fishing.

The night before the departure I was called by the tour operator, and told that the boat was broken.
The tour operator did make other arrangements but ultimately our 4 day diving and fishing from a chartered catamaran was not fulfilled as we were based on a island resort instead.

With the short notice cancellation we had no real choice but to accept the alternative arrangements.

Under section 75, it details that if you were not provided with the service agreed as part of the sale, then there is room to claim.

I wonder if you guys think I have a case here? And if so, how do I go about making a claim with Tesco Bank?

Thanks in advance
Ian

molerat

They failed to perform as contracted but you accepted an alternative. Was the provided item of similar quality and cost ? I think you would only be entitled to reimbursement of any difference in the price and any out of pocket expenses. You did have the opportunity to decline their offer, make alternative arrangements and seek a full refund but chose not to. If the boat really was broken they could have simply said tough, here is your refund. This would probably be covered by a !!!! happens clause in the contract.

meer53

You can't have a refund and the service. You accepted their alternative so your claim would fail.

eddddy

Assuming you booked and paid the catamaran company direct (so a debtor-creditor-supplier relationship exists)...

Section 75 makes the CC provider jointly liable for breach of contract - so if a breach of contract has occurred, you can claim either from the catamaran company or the CC company.

The Law Gazette says:

Holiday claims have long been accepted as an exception to the rule that damages for breach of contract cannot be claimed for mental distress and disappointment, on the basis that the whole purpose of a holiday contract is to provide entertainment and enjoyment. And so it is that district judges in their small claims lists have regularly to assess damages relating to spoiled holidays.

Link https://www.lawgazette.co.uk/law/claiming-damages-for-a-ruined-holiday/55929.article

So you could give it a try. But I suspect it may be a hard fight.


Edit to add...

But you need to check the t&cs that you agreed to. For example, if they say something like "We reserve the right to cancel with 24 hours notice", then there may not have been a breach of contract.

bris

. As already pointed out when something like this happens the thing to do is decline all alternatives and insist on a refund.


When they refuse you have a case for breach of contract.

eco_warrior

Yeah accepting the alternative service will kill this claim dead. Only slim hope would be if you could prove the service you did receive would have cost less than what you paid. ie catamaran trip cost £1000 and the island trip was £750.

You would never get all the money back when you had a service and standard of service isn’t covered.

chattychappy

I think a partial refund is called for.

When you suffer a breach of contract, you have a duty to mitigate your losses. Indeed, the OP could have refused the alternative, but I think his/her actions were reasonable in the circumstances of being on site, having booked time off work etc etc.

The alternative had some value, but it was of lesser value to the OP. So I think damages in this case would be some sort of assessment of the difference.

eddddy wrote: »

But you need to check the t&cs that you agreed to. For example, if they say something like "We reserve the right to cancel with 24 hours notice", then there may not have been a breach of contract.

Yes, but such a TorC would likely be an unfair term. But there could indeed be some sort of Force Majeure clause saying that alternatives might be offered in circumstances beyond the control of the operator.

eddddy

chattychappy wrote: »

Yes, but such a TorC would likely be an unfair term. But there could indeed be some sort of Force Majeure clause saying that alternatives might be offered in circumstances beyond the control of the operator.

OK.

Although having re-read the posts, it's not clear whether the contract is governed by UK law, or by whatever the local law is on the island resort.

I guess 'breach of contract', 'unfair terms' and the remedies for breach etc might be defined differently under a local law.