Section 75 rejected

stokesy1966

Hi Folks,

I need some advice from you good people.  Last November I booked a 3 month trip (holiday package - flights and a 2 week tour) for my daughter.  I went into Trailfinders, agreed the itinerary and paid 40% of the price (c£700) on my Mastercard.  A few weeks later I paid the balance (£1300) via a bank transfer.  Daughter was away from January and due to return early April.  Due to COVID-19 her plans were decimated whilst in New Zealand, she couldn't do her 2 week tour of Vietnam and her return flights were cancelled.  The only way we could get her home was to book her on one of the limited flights going between Auckland and the UK, however Trailfinders told us we would need to pay that up front and claim back.  At the time there was not option but to pay up front and get the money back.  Trailfinders are now playing hardball in terms of us getting a refund so I submitted a Section 75 to Lloyds (Mastercard provider).  After 8 weeks of doing nothing Lloyds have turned round and said the contract is between Trailfinders and my daughter and so not covered by Section 75.

I think they have defaulted to that position because my daughter's name is on the ticket, however my belief is that the contract is between me and Trailfinders.  I was the one who sat in their office, agreed the itinerary and gave the agent the authority to book the flights and tour.  So I believe the contract is in my name not hers.  Whilst she was actually in their offices at the time, I could quite easily have booked the same itinerary without her knowledge (as a surprise) - could she be party to a contract without her knowledge (and hence liable to pay the balance if I refused to pay it) ??   And what if she had only been 17 and not 18 at the time??  Given that we only paid a deposit, with a the balance to be paid some weeks later, that would have meant giving credit to someone under 18.  So I'm struggling to understand why the name of the traveller on the ticket suddenly means that she is party to the contract even though it is myself who made looked at what was being offered by Trailfinders,  agreed to the terms and conditions of the contract and  then made the payment.  My daughter didn't do this herself and just use my Mastercard as a means of payment, I went in and made the booking.

Anyone got any experience of this ??  Are the bank just trying it on ??  All advice most gratefully received.

Thanks in advance

[Deleted User]

No, they're not trying it in. It's a standard exclusion of section 75.

You had the contract, but you were not the end user.

stokesy1966

So what if I'd paid for all my family including myself.  I'd only be the end user for 1 out of 6 tickets.  Your logic suggests that I'd only get 1/6 of my costs back.  And if I buy a washing machine, do I have to pretend that I use it when more often than not it's other members of the family ??  I sense there being a very grey area here on what constitutes an 'end user'.
I get it if my daughter had made all the arrangements and simply asked me if I didn't mind paying on my card but this is my contract not hers and the contract has been breached.

[Deleted User]

No, my logic doesn't suggest that.  

A family holiday in which you participated could be argued to be a valid claim.

And the washing machine example is just too oddball to comment on.

Your case is not a grey area at all. You paid for it. She was the one going on holiday. That's very much fifty identical shades of black and white, not grey.

stokesy1966

Thanks for your comments zx81.  You seen pretty knowledgable on this.  Do you know which bit of legislation I need to refer to to help me understand ?  If I can read it somewhere official then I've no doubt it will become black and white for me.  Thanks in advance

gt94sss2

Did your daughter have travel insurance?
Note - MSE has a separate board for Covid related travel issues at https://forums.moneysavingexpert.com/categories/travel-chaos-help-info

stokesy1966

Hi gt94

thanks for your reply.

She did have travel insurance, but they initially pointed me back in the direction of Traifinders saying that it was a breach of contract as opposed to an 'event' that would trigger a payout under their policy ie personal illness, family bereavement etc.

Ultimately Trailfinders should be the one footing the bill as the Travel Package regulations put the onus on them to refund any components of the package that aren't delivered (the tour of Vietnam) and also to repatriate my daughter at no extra cost.  However, as they are playing hardball I went down the Section 75 route hoping that would be the path of least resistance.
I'll repost over on the COVID travel forum (I was in 2 minds whether to start there or on the Credit Cards board).

Cheers

harsh_but_fair

I disagree with practically everything in the replies so far

Clearly the contract is between you trailfinders for goods and services i.e. a holiday for your daughter

If these were not supplied then you need to go to trailfinders and say that you require a refund because they did not supply what they contracted to do so

also you have a claim against your credit card for exactly the same reason

If the credit card refuse to refund you raise a formal complaint with them give them the required amount of time to to respond and if you are not satisfied with their response escalate to the FOS t

Yo me it seems a clear case of of services and goods paid for but not delivered

stokesy1966

HBF - agree on the contract point.  My grey area (which I'm hoping zx81 can polarise for me but having read Section 75 a few times I can't find which bit precludes me) is "who i the beneficiary".  Whilst my daughter is named on the ticket you could argue I am also a beneficiary in that I don't have to shell out for food, accommodation, clothing heating and lighting, taxi fares, etc for 3 months.  I also have great benefit in knowing she is having a trip of a lifetime (albeit COVID did its best to kibosh that).
As you say, I've entered a contract, the services have not been provided and so Trailfinders and the Card issuer are jointly liable.  The annoyimg thing is the card issuer sat on my claim for 8 weeks.  I chased yesterday and today they rekected it.  8 ruddy weeks wasted !!  Not happy :-(

Will attack on both fronts on Monday and see where I get to.

harsh_but_fair

To me it doesn't matter who the beneficiary is you are the one who paid for the goods and services and they have not been provided and therefore you have a valid refund claim

clearly in this troubling times everybody is going to try and get out of it but the bottom line is I don't think there is any way they can refuse to refund you

I would just persevere raise a complaint and if they start messing around escalate to the FOS it really isn't that difficult and anyway you have nothing to lose

Yes I agree listen to zx81 he is very knowledgeable (or she!)

eskbanker

harsh_but_fair said:

I disagree with practically everything in the replies so far

Clearly the contract is between you trailfinders for goods and services i.e. a holiday for your daughter

If these were not supplied then you need to go to trailfinders and say that you require a refund because they did not supply what they contracted to do so

also you have a claim against your credit card for exactly the same reason

If the credit card refuse to refund you raise a formal complaint with them give them the required amount of time to to respond and if you are not satisfied with their response escalate to the FOS t

Yo me it seems a clear case of of services and goods paid for but not delivered

It's no good stomping about like a bull in a china shop - it's (re)stating the obvious that the supplier didn't perform but it's futile to oversimplify and ignore the nuances and idiosyncrasies of the measures available to OP, who clearly stated that they'd already started with an unsuccessful claim against the supplier.  As already explained above, section 75 does require that the cardholder is the one contracting with the supplier and if it was indeed clear that the contract was between OP and Trailfinders then there wouldn't be much room for manoeuvre, but the fact that the card company has challenged this obviously signifies that it isn't as black and white as you portray it to be....

Edit: missed some updates while typing - OP, is the booking invoice addressed to you or your daughter?