Force Majeure - Where do I stand?

ReaderJ

I have a UK Music Festival booked for later this year - It's a heavily booked, indoor, all-standing event, which I have little confidence will go ahead.

The Event Manager has already 'postponed' a number of their annual Festivals set to take place earlier in the year, all set to return in 2021 around the same date. As they've included a Force Majeure Clause in their Terms and Conditions (which includes 'acts of government or acts in compliance with any applicable law'), they are not offering any form of refund.

Up to now, I've been open to supporting any business providing a re-scheduled date, but I won't be in a position to attend around this time next year due to personal circumstances. Do I have any rights to a refund, or will I have to cut my losses?

Jeremy535897

If the event is postponed to the following year, you would normally have the right to a refund. I am surprised that there is a clause dealing with acts of government. When did you book? Just because there is such a clause does not automatically mean that they can avoid giving you a refund. 

ReaderJ

Jeremy535897 said:

If the event is postponed to the following year, you would normally have the right to a refund. I am surprised that there is a clause dealing with acts of government. When did you book? Just because there is such a clause does not automatically mean that they can avoid giving you a refund. 

Thanks for the response.

I booked in November last year - I also went on the web archive (dated September 2019) to check they hadn't add in the government clause as it seemed so perfectly worded. Is there any particular argument I can refer to that backs up the right to a refund? Any articles I read online seem to suggest a Force Majeure places me in Checkmate.

unholyangel

ReaderJ said:

Jeremy535897 said:

If the event is postponed to the following year, you would normally have the right to a refund. I am surprised that there is a clause dealing with acts of government. When did you book? Just because there is such a clause does not automatically mean that they can avoid giving you a refund. 

Thanks for the response.

I booked in November last year - I also went on the web archive (dated September 2019) to check they hadn't add in the government clause as it seemed so perfectly worded. Is there any particular argument I can refer to that backs up the right to a refund? Any articles I read online seem to suggest a Force Majeure places me in Checkmate.

How exactly is it worded? Force majeure is legal jargon - so it would need to have a qualifying statement/explanation in layperson terms to be allowed in a consumer contract.

But perhaps besides the point since a force majeure is only to allow a party in breach to escape liability for damages caused by circumstances beyond their control and (to a lesser extent) minor adjustments. In other words, it may mean the organiser isn't responsible for hotel accommodation or travel arrangements that you had lost due to their non-performance but it doesn't mean they can tie you in to whatever changes they determine appropriate - such as changing the date by a whole year. 

Jeremy535897

You can start with the statement by the CMA:
https://www.gov.uk/government/publications/cma-to-investigate-concerns-about-cancellation-policies-during-the-coronavirus-covid-19-pandemic/the-coronavirus-covid-19-pandemic-consumer-contracts-cancellation-and-refunds

The mere fact that a contract includes a force majeure clause is not the end of the matter. If you pay for something and don't get it, then you should receive a refund. The question is whether the force majeure clause is reasonable in the alternative to performing the contract on the date booked that it offers. Is a delay of a year reasonable?

There is quite a good article on the issues here:
https://www.brownejacobson.com/training-and-resources/resources/legal-updates/2020/03/coronavirus-contracts-force-majeure-and-frustration-longer-version

Part of your problem is that they already have your money. If you paid by card, a chargeback is a possibility, but they may recharge. Section 75 offers some help if you paid by credit card.

ReaderJ

Just to add some detail, my booking was for a full weekend event and the on-site accommodation, equating to over £600 (all through the same company). It’s an annual event, so the postponed date will fall in-line with the event that would be happening in 2021 anyway (so technically it’s a cancellation in my eyes).

I paid for this in full via Direct Debit. 

The exact terminology states “ We shall not be liable for failure to perform our obligations hereunder due to events beyond our reasonable control including but not limited to [...] acts of government or acts in compliance with any applicable law, regulation or order (whether valid or invalid) of any governmental body.”

ReaderJ

Jeremy535897 said:

You can start with the statement by the CMA:

The mere fact that a contract includes a force majeure clause is not the end of the matter. If you pay for something and don't get it, then you should receive a refund. The question is whether the force majeure clause is reasonable in the alternative to performing the contract on the date booked that it offers. Is a delay of a year reasonable?

There is quite a good article on the issues here:

Part of your problem is that they already have your money. If you paid by card, a chargeback is a possibility, but they may recharge. Section 75 offers some help if you paid by credit card.

Thanks for the links, Jeremy. I’ll take a proper look over these!

Jeremy535897

They cannot fail to perform their obligations under the contract and keep your payment just because their failure was due to something outside their control, whatever the terms of the contract say. They can exclude consequential loss type claims, as unholyangel has said (and he knows a lot about this subject), but the fundamental issue is whether they have provided the service you paid for. If not, you should be refunded. Unfortunately you cannot use section 75 or chargeback as you paid by direct debit. They have your money, and you may have to take them to small claims court to try to get it back, which is not without risk.