When flights go ahead, but you are not able to take them - frustrated contracts

MoneyNumpty

This situation has happened to me and I am pleased to hear that the CMA are looking in to it, albeit there is a chance that nothing may come of it. I had booked several flights this year, all of which were cancelled although I did receive refunds and credit notes from Ryanair and Easyjet. The exception is Wizz-Air which has said that it will not refund me or offer a voucher as the flight was not cancelled. I live in a Tier 4 area, and the flight was to Portugal which had closed its borders to non-nationals and non-residents. I did appeal to the airline and they came back to say that under their General Conditions of Carriage they state-

15.7.1. Except as otherwise provided in the foregoing paragraphs of Article 15, We do not have further liability for any amendments of the Contract due to Extraordinary Circumstances or Force Majeure. To the extent permitted by the relevant laws and these General Conditions of Carriage, We disclaim liability for any damage or loss caused by extraordinary Circumstances or Force Majeure.
They go on:
Please note that the terms of the General Conditions of Carriage are still applicable despite the pandemic, including the terms for cancellation of your booking by yourself. These terms are in line with the applicable laws (such as Governmental Decree 25/1999 and Civil Code) and these are approved and constantly supervised by the Hungarian Civil Aviation Authority. We understand this unfortunate situation, however, in this particular case, we hope that you understand that we are unable to bend the policy stipulated in our General Conditions of Carriage in handling your concern

It may be my limited understanding of the law but surely a contract works both ways? Therefore if we are into a pandemic since March then these are not 'Extraordinary Circumstances' as they have occured previously and are likely to occur again. The seller is under the same risk as myself. The same with Force Majeure. I understand the term to mean an unforeseeable event, which clearly further lockdowns were not. If there is risk to me there must also be risk to the airline surely? If I am unable, by law, to travel then I cannot see how I should be penalised for following the law.

This grey area is very annoying and I hope the CMA can bring some clarity. If this risk to passengers was better known I suspect fewer people would book on the off chance their flight might run (or book with an airline that would allow vouchers etc).

Thrugelmir

Wizz Air operate under the jurisdication of their own national bodies. Flights haven't been banned into the UK. 

Streaky_Bacon

Thrugelmir said:

How is the CMA going to determine the case of each individual flight. Airlines cannot reroute their services at short notice in the same way that an individual can find their travel plans disrupted. 

I don't suspect that they will seek to do so on the basis of an individual flight.

I don't understand why rerouting flights would be relevant. If frustration applies then the contract ceases to exist. There is not a breach of contract, because there is no longer a contract.The breach of consumer rights that would have occurred would be not refunding customers if a contract was invalidated due to frustration.

Streaky_Bacon

There are various responses that could be provided to posters, including:

1. You may have the right to a refund under the existing principle of frustration of contract. The Competition and Markets Authority have stated that they believe the principle may apply and are currently investigating whether suppliers may have breached consumers' rights by refusing refunds. Although the principle is long established, it has not yet been tested in the courts in specific relation to flight and coronavirus.

2. You definitely have no right to a refund.

Not only is 2 inaccurate (we cannot say that there is definitely no right), it is also likely to prevent many posters from taking any further action (even if that is to just wait for an update from the CMA) and to simply give up seeking money which they may actually be entitled to. However it seems to be he standard response at the moment.

For that reason, my advice to any posters will be some variation of 1.

I don't presume to tell others here what opinions they should post, but I hope that some consideration might be given to the accuracy and impact of continuing with option 2.

mattyprice4004

Sorry, but I'll continue to advise 2 - the customer booked a service, the service is available and due to issues on their side of the deal (tiering, not being allowed entry as not a national etc is ONLY the issue of the customer) they can't travel - that's simply not the airline's issue.

And no, I don't work for an airline or have any interest in one etc - it's just the way things are, and will be until things change via a court / CMA ruling etc.

Thrugelmir

Streaky_Bacon said:

Thrugelmir said:

How is the CMA going to determine the case of each individual flight. Airlines cannot reroute their services at short notice in the same way that an individual can find their travel plans disrupted. 

I don't understand why rerouting flights would be relevant. If frustration applies then the contract ceases to exist. 

The supplier is fulfilling the contract by providing the service that was booked. In doing so they may possibily be permitted to retain monies to cover expenses incurred. 

Streaky_Bacon

Thrugelmir said:

The supplier is fulfilling the contract by providing the service that was booked. In doing so they may possibily be permitted to retain monies to cover expenses incurred. 

If it is decided that the contract has been frustrated, then the contract and its obligations cease, and the usual position is that any monies paid should be reimbursed (Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd).

There is no doubt that the supplier is carrying out the obligations that originally existed under the contract, but the question is whether frustration means that the contract had ceased to exist.

Of course, you are right that, on the specific facts, a court may decide to deviate from the default position regarding frustration, or any other doctrine/principle.

Thrugelmir

Streaky_Bacon said:

Thrugelmir said:

The supplier is fulfilling the contract by providing the service that was booked. In doing so they may possibily be permitted to retain monies to cover expenses incurred. 

If it is decided that the contract has been frustrated, then the contract and its obligations cease, and the usual position is that any monies paid should be reimbursed (Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd).

Airlines would simply go bust and out of business without cashflow. A very low margin business. Somebody else pays isn't a reasonable proposition to adopt in the broader scheme of things. If the flight was booked after Covid was known. Then the event wasn't entirely unforeseen. All parties have to accept their own risks. Such as the rules that European airlines operate under all the time. An offer of a future booking may be deemed reasonable recompense. As airlines can reprice their other seats to factor in those effectively travelling  for free, 

Streaky_Bacon

mattyprice4004 said:

Sorry, but I'll continue to advise 2 - the customer booked a service, the service is available and due to issues on their side of the deal (tiering, not being allowed entry as not a national etc is ONLY the issue of the customer) they can't travel - that's simply not the airline's issue.

And no, I don't work for an airline or have any interest in one etc - it's just the way things are, and will be until things change via a court / CMA ruling etc.

No problem.

I would say however, that frustration has nothing to do with fault. Either frustration applies in these situations or it doesn't.

We won't know for sure until the courts decide. It won't suddenly start applying when the courts decide, they will simply be telling us that it always applied.

You can have any opinion you want on whether you think it should or shouldn't apply, but by stating that it definitely doesn't apply and that it is simply not the airline's issue, you are effectively claiming to know what the court would decide.

CKhalvashi

Thrugelmir said:

Wizz Air operate under the jurisdication of their own national bodies. Flights haven't been banned into the UK. 

Wizz are EASA certified for EU ops, holding a separate license for UK ops (there are 10 AC on the UK register, 120-ish on the Hungarian register).

Whether the flight was W6 or W9 would affect this position here (W9 is G- AC, W6 is HA- AC). I doubt the Hungarian authorities are going to enforce British advice when they hold their own advice and their own legislation, which will either meet or exceed the minimum legal requirements set by the EU. The LTN-Portugal flights are W9 ops, however as far as I'm concerned, 15.7.1 meets fully the UK legislation and cannot be deemed to be unfair, on the basis that Wizz don't set immigration law and there should be full knowledge that requirements may change at short notice given the exceptional ongoing pandemic situation. There are British citizens living in Portugal and many Portuguese citizens in the UK, so it is reasonable that the flight will run as there will be sufficient movement of people in both directions.

Not having a pop at you Thrugelmir even though it's your post quoted, as we may disagree on other issues, but we completely agree on this one, the situation would be in relation to OP's contract with Wizz, who have simply promised availability of a seat on a specific flight on a specific date. Wizz have fulfilled their end of the contract, and that the poster of the post you quoted can't meet the relevant immigration requirements is not their problem. They were completely able to purchase Wizz Flex (with several promotions to purchase this for £1 in recent months) and chose not to do so.

A pandemic is an exceptional circumstance on the basis of both EU law and advice, and UK law. There is therefore no claim against Wizz by Moneynumptey in my opinion.