Who should be picking up the tab

stokesy1966

Hi
post below was posted originally on the Credit Cards forum but a poster suggested posting here for advice.
MasterCard issuer are saying contract isn't mine - I contest the contract is mine (albeit my daughter travelled).  Trailfinders have sent a cancellation invoice saying no refunds - my viewpoint is that they are obliged to repatriate my daughter at no additional cost to me (ie they should pick up the tab for the 'emergency' flight home) as well as refund for the the Tour that could not be completed.  We do have travel insurance but they say that it's not covered as it's a breach of contract rather than one of the specific risks outlined in their policy (ie personal illness, family bereavement etc).  Help and advice welcome 


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]

Its a tough one because technically the contract should be between your daughter and Trailfinders as she is an adult.   Did she sign anything with Trailfinders or did you do all the signing for her?   I don't think that would be particularly lawful either but not sure.  

I think you need some legal advice rather than people guessing on here.   I take it her insurance didn't cover for curtailment of holiday?  Trailfinders should refund her for the days she missed out on.  Check on the terms and conditions she/you agreed to when booking. 

stokesy1966

Thanks for the input, Tedbet

I was the one who agreed everything with the travel agent and as far as I'm concerned it's me that was party to the contract.  To be perfectly honest I don't remember us being asked to sign anything.  I was already on their system as have previously booked with them.  The only thing they did ask was for a contact e-mail for my daughter which I assumed was in case they needed to contact her whilst away.
She didn't miss out on any days - as luck would have it the emergency flight got her to UK within 1 day of her original return date.
I've read the Package Travel and Linked Travel regulations in depth and I'm confident we are due the refund for the undelivered elements as well as the additional costs incurred - it's just which is the easiest way to obtain it 

Nebulous2

I was cancelled in New Zealand and had to pay to get home. Ultimately my insurance are taking responsibility under ‘curtailment.’ It says if I have to curtail my holiday because of FCO guidance against ‘all but essential travel’ I am covered. That happened on 17/3/20 around the time that transit hubs were closing and flights cancelling. 

They expect me to reclaim what I can from travel agent and credit card first, which is reasonable, but that process is very lengthy. Traifinders should eventually refund the cancelled flights. 

There are some ombudsman rulings on gifts and section 75. I cannot remember the detail, but you can look for them. It isn’t nearly as clear cut as your credit card company is saying. 

stokesy1966

Nebulous2 - thanks for the input.  I will certainly do some digging on Ombudsman front around gifts etc - I'd already found some detail around examples of successful and unsuccessful claims but nothing that fit my circumstances.  The door is not fully closed at the moment - I can still go back to Trailfinders direct as they are liable to recompense me (or my daughter if they insist the contract is with her).  I was hoping that the Section 75 route would leave the card issuer to argue the toss with Trailfinders rather than me having to do it.

Also, had another thought.  If Lloyds have rejected my claim on the grounds that my daughter is the primary beneficiary,  would I still be able to raise a chargeback ??  Are the rules governing chargeback the same as for Section 75 ?

sheramber

 Her is a case where  mother bought a car for daughter. Ombudsman ruled that although mother paid for car daughter was th consumer as it was in her name and therefiore the direct link  for S75 was broken.
https://www.financial-ombudsman.org.uk/files/157700/DRN6273737.pdf

Maniak

sheramber said:

 Her is a case where  mother bought a car for daughter. Ombudsman ruled that although mother paid for car daughter was th consumer as it was in her name and therefiore the direct link  for S75 was broken.
https://www.financial-ombudsman.org.uk/files/157700/DRN6273737.pdf

I don't think that decision is relevant to this situation because the background makes it clear the daughter purchased the car and the mother only made a deposit, so the contract was with the daughter.

As far a I'm aware, s.75 does not exclude claims where the goods or services in question are a gift. The gist of a s.75 is whether there is a contractual relationship between the card holder, the supplier and the credit card company.

Whether you look at if from a strict legal point of view or the FOS' 'What's fair and reasonable' perspective, it's clear that you will need some kind of evidence to back up your story. Obviously you've got the evidence of payment, but what about emails, text messages, invoices or other correspondence that might indicate Trailfinders were dealing with your in terms of this purchase? The more evidence you can put forward, the harder it would be for Lloyds to argue otherwise. 

Anyway, I did a quick search on the FOS website and found two decisions that were broadly similar to your situation so it would definitely be worth your while including these decisions as part of your complaint - links are at the end. If I was making the complaint, I would be angling it to say that Lloyds are claiming that s.75 doesn't apply because the tickets were in your daughter's name and therefore the contract must be between her and Trailfinders. However, you can point out that s.75 is concerned with the contractual relationship, not the goods or services being provided under the contract and just because her name is on the ticket does not automatically mean that she contracted with Trailfinders. You can refer to the two FOS decisions to back up that point and the Ombudsman in the Tesco decision neatly sums up how s.75 applies. So all you need to say is that this was a gift for your daughter, you arranged it, paid the balance in full and then provide other supporting evidence to show you were dealing directly with Trailfinders.

I think if the only evidence you have is the payment then that could put you in a difficult spot because, payment of the costs alone wouldn't suggest you were the contracting party.

FOS Decision - Tesco Finance Plc
FOS Decision - Barclays Bank Plc