We have taken Jet2 to court over refusing refund of holiday deposit - and won

stoem

In our case we luckily only fight over a deposit. I guess travel regulations are different but in the world I live in (normal business to business and business to consumer trading) I cannot alter certain parts of a contract or remove elements of a contract willy nilly. If I sell my customers a widget with 5 gadgets in it and then remove 2 gadgets before shipping any of them then I cannot expect them to pay full price, and rightly so. 

eskbanker

stoem said:

In our case we luckily only fight over a deposit. I guess travel regulations are different but in the world I live in (normal business to business and business to consumer trading) I cannot alter certain parts of a contract or remove elements of a contract willy nilly. If I sell my customers a widget with 5 gadgets in it and then remove 2 gadgets before shipping any of them then I cannot expect them to pay full price, and rightly so. 

But that analogy doesn't really fit this more complex situation, as discussed a couple of months back:

https://forums.moneysavingexpert.com/discussion/comment/78973337/#Comment_78973337

stoem

To be honest, I don't really care if it fits or not, I'm simply describing how things work under the general contractual law I and every other small business I know of operates under. Normally, every element of a contract forms part of the contract.

I'm happy to find out that this is not the case here but to find out I must test it. Even you came back with about half a dozen question marks so this situation is obviously not clear cut which is further underlined by the fact that my legal rep was happy to get involved. They don't help if it's a hopeless or silly case you present them with. 

eskbanker

stoem said:

To be honest, I don't really care if it fits or not, I'm simply describing how things work under the general contractual law I and every other small business I know of operates under. Normally, every element of a contract forms part of the contract.

Most business contracts I've seen have a concept of material breach, rather than every single variance automatically giving rise to termination rights, so it still seems a matter of degree to me.

stoem said:

I'm happy to find out that this is not the case here but to find out I must test it. Even you came back with about half a dozen question marks so this situation is obviously not clear cut which is further underlined by the fact that my legal rep was happy to get involved. They don't help if it's a hopeless or silly case you present them with. 

Without trawling back through the entire thread, my recollection is that I was agreeing that it's not clear cut about whether or not the missing facilities would constitute a significant change or not, but the more central issue, potentially overriding that, was whether or not you had refund rights based on information shared by the hotel three months in advance of the booking, on which I still feel you're on weaker ground.

However, as you say, the only way to find out is to test it in court, and there remains the possibility that brinkmanship pays off if Jet2 choose to settle out of court regardless of the merits of the case!

stoem

It's not that deep. 

Anticipatory Breach of Contract

A breach need not actually occur for the responsible party to be liable. In the case of an Anticipatory Breach, an actual breach has not yet occurred, but one of the parties has indicated that they will not fulfill their obligations under the contract. This can occur if the breaching party explicitly notifies the other party that they will not fulfill their obligations, but such a claim could also be based on actions that indicate one of the parties does not intend to or will not be able to deliver.

Will not be able to deliver. There's a reason why Jet2 is huffing and puffing about hindsight when it was in fact foresight that allowed me to now fight over £300.00 instead of £3,000.00.

eskbanker

stoem said:

It's not that deep. 

Anticipatory Breach of Contract

A breach need not actually occur for the responsible party to be liable. In the case of an Anticipatory Breach, an actual breach has not yet occurred, but one of the parties has indicated that they will not fulfill their obligations under the contract. This can occur if the breaching party explicitly notifies the other party that they will not fulfill their obligations, but such a claim could also be based on actions that indicate one of the parties does not intend to or will not be able to deliver.

Perhaps you'd be able to construct a case around something like that, but it seems unlikely that copy/pasting from an American site is a particularly reliable approach!

stoem said:

Will not be able to deliver. There's a reason why Jet2 is huffing and puffing about hindsight when it was in fact foresight that allowed me to now fight over £300.00 instead of £3,000.00.

Not sure there's much value in replaying all this again, but I thought their argument was essentially that it's only hindsight that shows that what was predicted came to pass, i.e. it couldn't be relied on at the time, and hence the earlier discussion about the 'flicker of hope' argument used in more relevant legal citations.

stoem

I can send you a link to a UK site that says the same thing but you can probably google for that yourself. The point remains: every part of a contract forms part of the contract, both here and in the US. 

There's little to construct, it's the second thing the *UK* solicitor pointed out to Jet2. No point to have contracts when one side can remove items without consequence.

eskbanker

stoem said:

I can send you a link to a UK site that says the same thing but you can probably google for that yourself. The point remains: every part of a contract forms part of the contract, both here and in the US. 

There's little to construct, it's the second thing the *UK* solicitor pointed out to Jet2. No point to have contracts when one side can remove items without consequence.

To a certain extent it depends on the argument your solicitor proposes to run.

If it's based on your rights under the Package Travel Regulations, these do make a clear distinction between significant and insignificant changes, and it's only the former that trigger cancellation and refund rights, otherwise package organisers would effectively be on the hook for any minor variance between brochure and reality, so it's clear that establishing significance would be key.

In the event that changes are deemed significant, then PTR 11 comes into play, necessitating the package organiser to advise you of such changes and to honour your rights thereafter.

On the other hand, if your lawyer is looking to make some sort of broader case under UK contract law, or to assert that Jet2's Ts & Cs are unfair or non-compliant with the PTRs, then other legislation would presumably come into play.

Either way round, going to court clearly needs reference to rights and obligations under relevant UK/English legislation, rather than analogies and copypasta!

stoem

A good day today, BloJo is out and we won our case.

I'll try to summarise.
The judge accepted that I had proven that it was known by means of the downloaded brochure from the hotel that the indoor pool, spa and gym would be closed for that season. He accepted that altering buffet service to bookable table service is also an important factor for a family with 3 children.

He said he needs to make an objective decision, case by case, if those changes were significant. Jet2's own T&Cs state that a >12 hour delay is significant. The judge stated that it's easy to argue that the closure of an indoor pool in October for a family with 3 children is on its own significant, after all it lasts for 24 hours every day, not just once for 12 hours. So is the closure of the gym and spa - also significant.

Jet2 tried to argue that I agreed to the T&Cs and that there may not have been any change at all yada yada all a bit hopeless to be honest. The changes were known upfront, I told them about it but Jet2 didn't care or take any attention.

My recommendation is that if your gut feeling tells you you're in the right then there's a good chance you are. 
There must be hundreds of people that could make the same case as I did but companies try not to pay in the first instance, and the second, and need to be forced by a court. Shame really.

eskbanker

stoem said:

He said he needs to make an objective decision, case by case, if those changes were significant. Jet2's own T&Cs state that a >12 hour delay is significant. The judge stated that it's easy to argue that the closure of an indoor pool in October for a family with 3 children is on its own significant, after all it lasts for 24 hours every day, not just once for 12 hours. So is the closure of the gym and spa - also significant.

These references to timings make no sense to me - the 12 hours in Jet2's Ts & Cs relates specifically to travel delays, so I can't see any relevance to unavailability of facilities once in resort?

Anyway, although the thread has meandered a bit along the way, the fundamental issue from the start was whether or not the changes were significant and the judge has deemed them to be so in your circumstances, so congratulations on your result, well done!