To pay or not to pay, that is the Question..

Streaky_Bacon

eskbanker said:

Effectively you do already owe them €4200, whether or not you go and whether or not they succeed in taking the payment directly, i.e. if your cancellation of your card prevents this then they'll still pursue you for the debt.

This is the situation if you take the contract at face value, which you should not do.

The wording of a contract is not the law, it is an attempt to create an agreement, which may or not be legally enforceable.

It does not take much research to find reliable sources of information regarding when such clauses may or may not be enforceable, and even a case, which has been much discussed here in the past, where the judge decided that the clause was unfair and unenforceable.

I understand that there are many viewpoints here, but I would always try to discourage the "the legal position is whatever the contract says" position, without further reference to established legal principles.

atlantalace

This is all extremely helpful everyone! Thankyou!! The wording on my agreement was the cancellation policy was the full amount payable from the day of booking! That seems very unfair! 

I am sympathetic to the travel industry currently but I don’t think that individuals like us should have to pick up the shortfall. The fact we booked before there was any word of cocid-19 should be taken into consideration also with the quarantine rules, even if I was to go alone with my children, my child would miss the first week of starting year 1! We get fined for taking our children out of school but it’s ok in this instance? 

I agree that if It was taken to a small claims court there are too many factors to push for the full payment. I think I’ll take my chances rather than have to fight to get my money back. 

Streaky_Bacon

atlantalace said:

This is all extremely helpful everyone! Thankyou!! The wording on my agreement was the cancellation policy was the full amount payable from the day of booking! That seems very unfair! 

At first glance it would seem unlikely that the amount would be a "genuine pre-estimate of loss", and so would likely be an unfair term, which would be unenforceable.

atlantalace said:

I agree that if It was taken to a small claims court there are too many factors to push for the full payment. I think I’ll take my chances rather than have to fight to get my money back. 

All other things being equal. it is certainly far more difficult to chase the money.

Poecile

Im in a similar position but travelling to New York in September, im yet to see a single person not complain in regards to refunds being issued, LM seem to be ignoring everyone and ive seen plenty of discussion of them going bust, me and my partner have made the decision that we are not paying our remaining balance and will take it to court if need be the case, Ive spoken to british airways who have told me that 3 of my 4 flights have actually been cancelled and ive not heard a single word about it from LM, they do not respond to emails for weeks and even sometimes months at a time and have no number to call ( the one provided just terminates the call after selecting the area you would like to speak too ) this is not a small ammount of money for me and my family so im also not willing to part with it for the possible chance of a refund voucher which might mean nothing anyways if they go bust, then we would end up waiting even longer for the administration process to complete.

Butts

People on here who have only dealt with TUI, BA etc  have no idea that they are like saints compared to Last Minute.com in the current crisis. 

skadupuk

Streaky_Bacon said:

atlantalace said:

This is all extremely helpful everyone! Thankyou!! The wording on my agreement was the cancellation policy was the full amount payable from the day of booking! That seems very unfair! 

At first glance it would seem unlikely that the amount would be a "genuine pre-estimate of loss", and so would likely be an unfair term, which would be unenforceable.

At the same time, the OP cancelling this late in the day does increase the likelihood of LM being able to prove a loss greater than the deposit, so whilst the term may be unenforceable in full (i.e. total holiday cost) I doubt LM have massive margins, and if they can prove that they lost £4k of the £5k in having to pay for the flights and hotel and couldn't rcover, I'm not sure a judge would view that amount as being unreasonable to resolve the matter.

As you point out, they'd have to take the OP to court to do that but if they have the provable loss then I'm struggling to see a solid legal argument against that being recoverable.

The complexity and publicity may be what prevents this (and realistically the issue may just get lost in all the general noise at the moment), it's also likely their terms with the hotel only require payment post holiday etc.

I'm definitely not suggesting the OP should pay, just that their are some other factors that may affect the outcome and it's important to weigh up every element of risk.  

Butts

skadupuk said:

Streaky_Bacon said:

atlantalace said:

This is all extremely helpful everyone! Thankyou!! The wording on my agreement was the cancellation policy was the full amount payable from the day of booking! That seems very unfair! 

At first glance it would seem unlikely that the amount would be a "genuine pre-estimate of loss", and so would likely be an unfair term, which would be unenforceable.

At the same time, the OP cancelling this late in the day does increase the likelihood of LM being able to prove a loss greater than the deposit, so whilst the term may be unenforceable in full (i.e. total holiday cost) I doubt LM have massive margins, and if they can prove that they lost £4k of the £5k in having to pay for the flights and hotel and couldn't rcover, I'm not sure a judge would view that amount as being unreasonable to resolve the matter.

As you point out, they'd have to take the OP to court to do that but if they have the provable loss then I'm struggling to see a solid legal argument against that being recoverable.

The complexity and publicity may be what prevents this (and realistically the issue may just get lost in all the general noise at the moment), it's also likely their terms with the hotel only require payment post holiday etc.

I'm definitely not suggesting the OP should pay, just that their are some other factors that may affect the outcome and it's important to weigh up every element of risk.  

Try finding a Court Case where any Holiday Company has recovered money owed in these circumstances - it's been tried before!! and other "enthusiasts" have come up with a blank.

I have just received an e-mail form LM.com
"I have checked your details and confirmed that our team is still working on your refund deposit that you've done until now"
With grammar like that what hope have we got ?

On my LM homepage it shows an outstanding balance and the notation someone will be in touch to discuss my options !!

Folks this is what we are up against - Never Book Anything with LM Com !!

silvercar

Butts said:

People on here who have only dealt with TUI, BA etc  have no idea that they are like saints compared to Last Minute.com in the current crisis. 

I hope people remember this in the future.

skadupuk

Butts said:

skadupuk said:

Streaky_Bacon said:

atlantalace said:

This is all extremely helpful everyone! Thankyou!! The wording on my agreement was the cancellation policy was the full amount payable from the day of booking! That seems very unfair! 

At first glance it would seem unlikely that the amount would be a "genuine pre-estimate of loss", and so would likely be an unfair term, which would be unenforceable.

At the same time, the OP cancelling this late in the day does increase the likelihood of LM being able to prove a loss greater than the deposit, so whilst the term may be unenforceable in full (i.e. total holiday cost) I doubt LM have massive margins, and if they can prove that they lost £4k of the £5k in having to pay for the flights and hotel and couldn't rcover, I'm not sure a judge would view that amount as being unreasonable to resolve the matter.

As you point out, they'd have to take the OP to court to do that but if they have the provable loss then I'm struggling to see a solid legal argument against that being recoverable.

The complexity and publicity may be what prevents this (and realistically the issue may just get lost in all the general noise at the moment), it's also likely their terms with the hotel only require payment post holiday etc.

I'm definitely not suggesting the OP should pay, just that their are some other factors that may affect the outcome and it's important to weigh up every element of risk.  

Try finding a Court Case where any Holiday Company has recovered money owed in these circumstances - it's been tried before!! and other "enthusiasts" have come up with a blank.

I have just received an e-mail form LM.com
"I have checked your details and confirmed that our team is still working on your refund deposit that you've done until now"
With grammar like that what hope have we got ?

On my LM homepage it shows an outstanding balance and the notation someone will be in touch to discuss my options !!

Folks this is what we are up against - Never Book Anything with LM Com !!

Absolutely, and as I say I'm not suggesting the OP pays, it's incredibly unlikely they'll get taken to court.

But at the same time you are suggesting a lack of a historical case is a guarantee of protection, it's not and so there remains a very, very small risk. 

Given you are so confident, then I'm sure you'd be happy to underwrite the OP's decision, because it could never happen so it's not like you'd be taking a risk?   
(sorry, couldn't resist a bit of a wind up) 

Streaky_Bacon

skadupuk said:

At the same time, the OP cancelling this late in the day does increase the likelihood of LM being able to prove a loss greater than the deposit, so whilst the term may be unenforceable in full (i.e. total holiday cost) I doubt LM have massive margins, and if they can prove that they lost £4k of the £5k in having to pay for the flights and hotel and couldn't rcover, I'm not sure a judge would view that amount as being unreasonable to resolve the matter.

As you point out, they'd have to take the OP to court to do that but if they have the provable loss then I'm struggling to see a solid legal argument against that being recoverable.

I agree that it is potentially a complex situation, and I also agree that a late cancellation reduces the chance of reselling a holiday.

People are commonly advised to wait until the company cancels, but that does mean that does reduce the resell opportunity and so potentially increase the risk as you very clearly point out.

If it came to court there are two significant issues.

1) The company does not need to prove an actual loss, if the court finds that the amount in the contract is a genuine pre-estimate of loss. It is likely that a court would not find that (as was the case with the TUI litigation), find that the clause was therefore an unfair term, and that the court would therefore strike that clause out, as if it never existed.

2) Assuming that the company failed with 1), the court could still find that the company suffered a loss and that the customer should reimburse them for it, but that is less likely, and certainly wasn't the case in the TUI case. If the company did pursue on that basis, then they would have to show the loss, as you state. It is quite likely that they would simply attempt to enforce the term, and potentially fail due to it not being a genuine pre-estimate. To do otherwise would require them to release sensitive commercial information, that they may not wish to.