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

Butts

Streaky_Bacon said:

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.

This is Last Minute.com you are talking about not a respected brand like TUI.
The op has only fronted up a few hundred  and it's quite likely none of the providers will have seen a shilling of his hard earned.
If you want to see how inept or corrupt they are just look at my experience or the numerous others on here and other sites.

eskbanker

Streaky_Bacon said:

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.

Yes, fair enough, I actually directed a poster towards that Crawcour case on another thread earlier, so should perhaps have added 'according to the contract terms' to the above post - I do agree that Ts & Cs can't override the law but conversely wouldn't suggest that the unfair terms angle should be seen as a universal 'get out of jail free' card either....

eskbanker

Streaky_Bacon said:

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.

On further reflection this morning, it seems to me that the legislative environment has moved on since 2014, and in particular the Package Travel Regulations 2018 now state (in regulation 12, pertaining to customer cancellation):

(4) The package travel contract may specify reasonable standard termination fees based on—

(a) the time of the termination of the contract before the start of the package; and

(b) the expected cost savings and income from alternative deployment of the travel services.

(5) In the absence of standardised termination fees, the amount of the termination fee must correspond to the price of the package minus the cost savings and income from alternative deployment of the travel services.

(6) The organiser must provide a justification for the amount of the termination fee if the traveller so requests.

That suggests to me that the standardised time-based cancellation clauses are more likely to be seen by courts as fair than they were prior to the introduction of these regulations (although I haven't researched their predecessors) - is anyone aware of any relevant court cases relating to package cancellations under these 2018 regulations yet?

gettingtheresometime

How young are the children?
Whilst I appreciate it was supposed to be a family holiday and it now won't be, is the situation totally unworkable?

atlantalace

UPDATE! 

I just received an email from the hotel directly!! 

Good morning Ms. {Removed by Forum Team},

Thank you for contacting PALLADIUM HOTEL GROUP.

We apologize for the delay in our answer.

After receiving your email we have sent it to the department in charge of bookings confirmed through agencies, online suppliers and tour operators. They have checked your case and authorized lastminute to cancel free of charge your reservation in the hotel, now please check with last minute about the other issues.

Best regards