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

CKhalvashi

eskbanker said:

CKhalvashi said:
...although J2 are the seller of the package and therefore shouldn't be able to distance themselves from services not performing to contractual specifications...

Yes, as package organiser (I think that's their role under the PTRs here, rather than seller), they can't distance themselves from the actual performance of the services, but I think they're trying to distance themselves from the advance info published by the hotel, i.e. asserting that this didn't in itself grant OP cancellation/refund rights - in the context of how the PTRs anticipate changes being handled, it's only when the package organiser notifies the traveller of changes that the relevant rights and remedies apply, and the hotel isn't a party to the contract.

However at 3 months, would there have been a reasonable chance that Jet2 could have rectified that breach?

Unless there were legal requirements banning specific services from being offered, I'd argue that likely the answer was yes, likely by changing to a hotel in the same area.

Under the PTRs, Jet2 would be obliged to notify at some point down the road in this booking and then look potentially at remedies, which if not done within 8% of the price would have entitled OP to a refund in any event as it's classed as a significant change, which may not help OP's case.

This is why I'd conclude that in most circumstances, 3 months was too early, especially when Jet2 hadn't been given a chance to remedy any needs that OP had on this booking.

eskbanker

CKhalvashi said:

eskbanker said:

CKhalvashi said:
...although J2 are the seller of the package and therefore shouldn't be able to distance themselves from services not performing to contractual specifications...

Yes, as package organiser (I think that's their role under the PTRs here, rather than seller), they can't distance themselves from the actual performance of the services, but I think they're trying to distance themselves from the advance info published by the hotel, i.e. asserting that this didn't in itself grant OP cancellation/refund rights - in the context of how the PTRs anticipate changes being handled, it's only when the package organiser notifies the traveller of changes that the relevant rights and remedies apply, and the hotel isn't a party to the contract.

However at 3 months, would there have been a reasonable chance that Jet2 could have rectified that breach?

Unless there were legal requirements banning specific services from being offered, I'd argue that likely the answer was yes, likely by changing to a hotel in the same area.

Under the PTRs, Jet2 would be obliged to notify at some point down the road in this booking and then look potentially at remedies, which if not done within 8% of the price would have entitled OP to a refund in any event as it's classed as a significant change, which may not help OP's case.

This is why I'd conclude that in most circumstances, 3 months was too early, especially when Jet2 hadn't been given a chance to remedy any needs that OP had on this booking.

Yes, I think we're on the same page on this.

I believe that Jet2 are effectively saying that information OP received from the hotel didn't confer cancellation/refund rights, regardless of whether or not that information was ultimately accurate and whether any remedy would eventually have been possible, simply by virtue of the fact that Jet2 didn't notify OP of the change.

However, I also agree that Jet2 will presumably argue that three months was way too early for a decision to be made, potentially citing the 'flicker of hope' judgment in Lambert vs Travelsphere Holidays Ltd, summarised as:

although a tour operator cannot shut its eyes to an obvious danger so as to deny that it is constrained to alter an essential term, it is permissible for it not to alter the term until there is not a ‘flicker of hope’ that the contract can be performed in accordance with the original term

According to a seemingly well-informed poster on here, tour operators have apparently been using 7-14 days as a rule of thumb in interpreting this case, as a reasonable period prior to departure before concluding that action needs to be taken.

CKhalvashi

eskbanker said:

CKhalvashi said:

eskbanker said:

CKhalvashi said:
...although J2 are the seller of the package and therefore shouldn't be able to distance themselves from services not performing to contractual specifications...

Yes, as package organiser (I think that's their role under the PTRs here, rather than seller), they can't distance themselves from the actual performance of the services, but I think they're trying to distance themselves from the advance info published by the hotel, i.e. asserting that this didn't in itself grant OP cancellation/refund rights - in the context of how the PTRs anticipate changes being handled, it's only when the package organiser notifies the traveller of changes that the relevant rights and remedies apply, and the hotel isn't a party to the contract.

However at 3 months, would there have been a reasonable chance that Jet2 could have rectified that breach?

Unless there were legal requirements banning specific services from being offered, I'd argue that likely the answer was yes, likely by changing to a hotel in the same area.

Under the PTRs, Jet2 would be obliged to notify at some point down the road in this booking and then look potentially at remedies, which if not done within 8% of the price would have entitled OP to a refund in any event as it's classed as a significant change, which may not help OP's case.

This is why I'd conclude that in most circumstances, 3 months was too early, especially when Jet2 hadn't been given a chance to remedy any needs that OP had on this booking.

Yes, I think we're on the same page on this.

I believe that Jet2 are effectively saying that information OP received from the hotel didn't confer cancellation/refund rights, regardless of whether or not that information was ultimately accurate and whether any remedy would eventually have been possible, simply by virtue of the fact that Jet2 didn't notify OP of the change.

However, I also agree that Jet2 will presumably argue that three months was way too early for a decision to be made, potentially citing the 'flicker of hope' judgment in Lambert vs Travelsphere Holidays Ltd, summarised as:

although a tour operator cannot shut its eyes to an obvious danger so as to deny that it is constrained to alter an essential term, it is permissible for it not to alter the term until there is not a ‘flicker of hope’ that the contract can be performed in accordance with the original term

According to a seemingly well-informed poster on here, tour operators have apparently been using 7-14 days as a rule of thumb in interpreting this case, as a reasonable period prior to departure before concluding that action needs to be taken.

We definitely are on the same page here.

I believe 7 is the bare minimum in legislation, so that wouldn't surprise me.

Insurers are using 30 as a general rule of thumb, so although that comes with the risk of an excess unnecessarily, that would also have been a way to go.

It's a different balancing act for all parties, however I haven't heard too many complaints about Jet2 not refunding when they legally should, so that may also throw this argument out of the window. While on a personal level I still wish OP the best of luck and there are some arguments both ways, it definitely doesn't look in their favour on this.

eskbanker

stoem said:

The hotel published changes to facilities on their website with the note that these changes would remain in place for the rest of the season. We knew that the buffet, indoor pool, gym and spa would all be closed.

[...]

I would compare this to ordering a car with a bunch of features of which several are missing and not getting a reduction in price or the possibility to order a different car that has all the features. 

[...]

They later changed their tune slightly and argued that because the flight was scheduled to go ahead and the hotel was open the holiday could have gone ahead exactly as planned. I will argue that significant changes were known ahead of time.

Missed this post earlier, think I was typing at the time!

I don't know if you were planning to use your car analogy in court, but to be honest I'd give it a miss - the distinction between 'significant' and other changes is critical to your case and is effectively defined by schedule 1 of the PTRs.  Cancellation and refund rights arise where "the organiser is constrained by circumstances beyond the control of the organiser to alter significantly any of the main characteristics of the travel services specified in paragraphs 1 to 10 of Schedule 1", so you need to make the case that some or all of the unavailable facilities can be categorised as falling within 'the main features' of the accommodation, rather than making comparisons with buying a car.

stoem said:

• The hotel published changes to facilities on their website with the note that these changes would remain in place for the rest of the season. We knew that the buffet, indoor pool, gym and spa would all be closed.
• I pointed this out to Jet2 BEFORE I cancelled. I called them 3 times before cancelling. They didn't feel it necessary to check with the hotel even at that point. 

[...]

Jet2 always argued that it was 'only with the benefit of hindsight' that I could have known about these closures. Evidently untrue as I told them about all this before cancelling - it was our foresight that caused us to check.

As above, I think that their line of argument is that there's a difference between the hotel announcing its intention to close facilities for the rest of the season and this actually being the case at the time of your trip, hence the hindsight reference, i.e. they're effectively asserting that you couldn't know that the facilities would be unavailable, but just knew that this was what the hotel (not a party to the contract) was predicting three months earlier.  This will presumably also explain their position that they didn't need to discuss with the hotel at that stage, but did Jet2, at any stage after you pointed out the hotel's statement to them, accept that it was definitive and binding and therefore a valid reason to invoke a 'significant change' (as opposed to discretionary) cancellation?

stoem

eskbanker said:

As above, I think that their line of argument is that there's a difference between the hotel announcing its intention to close facilities for the rest of the season and this actually being the case at the time of your trip, hence the hindsight reference, i.e. they're effectively asserting that you couldn't know that the facilities would be unavailable, but just knew that this was what the hotel (not a party to the contract) was predicting three months earlier.  

Yeah they might assert that but that wouldn't be factual. The facilities were closed at the time of cancellation and were confirmed, in writing, to be closed for the rest of the season.
They might argue that I should have gone ahead and hope for a miracle because hell, maybe the hotel is wrong about what it states about its own facilities. A bit of a stretch for any reasonable person.

I won't use the car analogy but I too run a services business and I know I couldn't possibly sell someone a bundle at an agreed price, remove 4 items from the bundle and ask for the full balance. If that works in the travel industry then fair play to them.

eskbanker

stoem said:

eskbanker said:
As above, I think that their line of argument is that there's a difference between the hotel announcing its intention to close facilities for the rest of the season and this actually being the case at the time of your trip, hence the hindsight reference, i.e. they're effectively asserting that you couldn't know that the facilities would be unavailable, but just knew that this was what the hotel (not a party to the contract) was predicting three months earlier.  

Yeah they might assert that but that wouldn't be factual. The facilities were closed at the time of cancellation and were confirmed, in writing, to be closed for the rest of the season.

Not trying to antagonise or provoke here but hopefully some devil's advocacy can help you sharpen your arguments for court....

You're right that there's a distinction between facts and interpretation, but the only facts at the time you cancelled were that the hotel had closed these facilities and had published that they planned to keep them shut for the rest of the season.  You interpreted that to mean that you had the right to cancel the holiday, but Jet2 obviously differed on that point, so it effectively distils down to three issues:

1. Was it valid for you to unilaterally act on the information supplied by the hotel if the package organiser disagreed about its contractual relevance?
2. If so, was it appropriate to do so three months ahead of travel (bearing in mind the 'flicker of hope' test)?
3. Were the changes significant enough to trigger cancellation rights anyway?

stoem said:

They might argue that I should have gone ahead and hope for a miracle because hell, maybe the hotel is wrong about what it states about its own facilities. A bit of a stretch for any reasonable person.

They don't necessarily need to argue that as such, all they need to do is to (continue to) dispute that the information published by the hotel (again, not a party to the contract) granted you cancellation and refund rights - a subtle distinction perhaps, but I believe a valid one.

stoem said:

I won't use the car analogy but I too run a services business and I know I couldn't possibly sell someone a bundle at an agreed price, remove 4 items from the bundle and ask for the full balance. If that works in the travel industry then fair play to them.

To me it's a more nuanced point than that and needs to be correlated with what's in the PTRs and Jet2's Ts & Cs - the issue isn't so much whether some facilities would have been unavailable but their significance, specifically in the context of the regulations and terms governing these arrangements, rather than looser analogies.  For example, if there was no indoor pool but one or more outdoor ones available, and if there were still restaurant facilities despite the absence of a buffet, then the court may conclude that those changes weren't particularly significant (in the regulatory sense) - a gym and spa are harder to substitute but again a court might not categorise their absence as significant, time will tell!

CKhalvashi

eskbanker said:

stoem said:

eskbanker said:
As above, I think that their line of argument is that there's a difference between the hotel announcing its intention to close facilities for the rest of the season and this actually being the case at the time of your trip, hence the hindsight reference, i.e. they're effectively asserting that you couldn't know that the facilities would be unavailable, but just knew that this was what the hotel (not a party to the contract) was predicting three months earlier.  

Yeah they might assert that but that wouldn't be factual. The facilities were closed at the time of cancellation and were confirmed, in writing, to be closed for the rest of the season.

Not trying to antagonise or provoke here but hopefully some devil's advocacy can help you sharpen your arguments for court....

You're right that there's a distinction between facts and interpretation, but the only facts at the time you cancelled were that the hotel had closed these facilities and had published that they planned to keep them shut for the rest of the season.  You interpreted that to mean that you had the right to cancel the holiday, but Jet2 obviously differed on that point, so it effectively distils down to three issues:

1. Was it valid for you to unilaterally act on the information supplied by the hotel if the package organiser disagreed about its contractual relevance?
2. If so, was it appropriate to do so three months ahead of travel (bearing in mind the 'flicker of hope' test)?
3. Were the changes significant enough to trigger cancellation rights anyway?

stoem said:

They might argue that I should have gone ahead and hope for a miracle because hell, maybe the hotel is wrong about what it states about its own facilities. A bit of a stretch for any reasonable person.

They don't necessarily need to argue that as such, all they need to do is to (continue to) dispute that the information published by the hotel (again, not a party to the contract) granted you cancellation and refund rights - a subtle distinction perhaps, but I believe a valid one.

stoem said:

I won't use the car analogy but I too run a services business and I know I couldn't possibly sell someone a bundle at an agreed price, remove 4 items from the bundle and ask for the full balance. If that works in the travel industry then fair play to them.

To me it's a more nuanced point than that and needs to be correlated with what's in the PTRs and Jet2's Ts & Cs - the issue isn't so much whether some facilities would have been unavailable but their significance, specifically in the context of the regulations and terms governing these arrangements, rather than looser analogies.  For example, if there was no indoor pool but one or more outdoor ones available, and if there were still restaurant facilities despite the absence of a buffet, then the court may conclude that those changes weren't particularly significant (in the regulatory sense) - a gym and spa are harder to substitute but again a court might not categorise their absence as significant, time will tell!

For the first part of the response here, I'd argue in this order.

1) Not at this stage; there was a chance for Jet2 to sort this matter out, potentially by moving to another hotel, potentially with the facilities being open. The answer at the 7 day mark likely would be yes how I read the legislation, however reasonable efforts should have been made from around 30 days remaining.

2) No. Covid was (and still to an extent is) a fast moving situation with regard to changes in the legislation, so 3 months definitely would not have been reasonable.

3) Yes, if these facilities were ones OP specifically wanted in a hotel and was genuinely likely to use, once all other options (change of hotel, potentially change of dates if OP wanted this, both within the 8% price cap) had been exhausted.

There are arguments in your favour, however for a cancellation 3 months before those arguments would be very weak. If you'd paid the balance and waited, you'd likely have received your money back in full by now, or enjoyed your holiday, possibly with amendments such as to a different hotel which did have the facilities. This hotel was not a party to your contract with Jet2 in law, which may further confuse things.

This is why we have told people to sit back and wait and avoid cancelling prematurely, however I have read this in accordance with the legislation only and not in accordance with any additional contractual terms that you may have with Jet2. This may ultimately be down to how a judge is feeling on the day, which isn't a situation with the courts that I would want to be in, as it's possible for this to come down to the wire on consumer rights legislation (and possible to how the judge would feel about such a change in facilities) instead of the PTRs in themselves.

stoem

eskbanker said:

Not trying to antagonise or provoke here but hopefully some devil's advocacy can help you sharpen your arguments for court....

No not at all, it is useful to get other people's opinions. However I will not overthink it and state things in my own words as in general I've had pretty good outcomes with that approach.

There's no dispute about my right to cancel.
The dispute is purely around the refund of the deposit. Jet2, as a default stance, issues no refunds of deposits in such cases. They point to their T&C's and treat this as 'business as usual' whilst simultaneously telling me that these are 'exceptional circumstances' and I should therefore put up with the changes without reduction in charges or free transfer of my deposit to another holiday, both of which I would have accepted.

I'm still not sure how and if I should respond to the fact that the defendant does not wish to call the only witness.

A reminder, here's the angle the law firm took which I initially consulted.

Firstly, we would note your agreement in your email that the package for which our client contracted and paid for could not have been provided as advertised, due to Covid restrictions.

We would contend that regardless of the circumstances being unprecedented, under the Package Travel and Linked Travel Arrangements Regulations 2018, our client remains entitled to a full refund of the deposit.

S11 of the above regulations referring to the alteration of other package travel contract terms, state at 11(5) that the traveller may either (a) accept proposed changes provided by you or (b) terminate the contract without paying a termination fee.

S11(8) goes further to state that the organiser must refund all payments made by or on behalf of the traveller, without undue delay and in any event, not later than 14 days after the contract is terminated. 

 

CKhalvashi

stoem said:

eskbanker said:

Not trying to antagonise or provoke here but hopefully some devil's advocacy can help you sharpen your arguments for court....

No not at all, it is useful to get other people's opinions. However I will not overthink it and state things in my own words as in general I've had pretty good outcomes with that approach.

There's no dispute about my right to cancel.
The dispute is purely around the refund of the deposit. Jet2, as a default stance, issues no refunds of deposits in such cases. They point to their T&C's and treat this as 'business as usual' whilst simultaneously telling me that these are 'exceptional circumstances' and I should therefore put up with the changes without reduction in charges or free transfer of my deposit to another holiday, both of which I would have accepted.

I'm still not sure how and if I should respond to the fact that the defendant does not wish to call the only witness.

A reminder, here's the angle the law firm took which I initially consulted.

Firstly, we would note your agreement in your email that the package for which our client contracted and paid for could not have been provided as advertised, due to Covid restrictions.

We would contend that regardless of the circumstances being unprecedented, under the Package Travel and Linked Travel Arrangements Regulations 2018, our client remains entitled to a full refund of the deposit.

S11 of the above regulations referring to the alteration of other package travel contract terms, state at 11(5) that the traveller may either (a) accept proposed changes provided by you or (b) terminate the contract without paying a termination fee.

S11(8) goes further to state that the organiser must refund all payments made by or on behalf of the traveller, without undue delay and in any event, not later than 14 days after the contract is terminated. 

 

The refund rights by the lawyer would be those of section 12(7), which are here.

This may or may not be applicable under section (a) in this case, which is the case the lawyer should actually have argued, and will come down to whether the change was or wasn't significant, which I honestly don't know.

Jet2 hadnt proposed to change any terms or otherwise modified the package at this stage, meaning section 11 in theory wouldn't be relevant until any change was proposed. The rights under section 12 in reality also would be a stretch, as the FCDO weren't at that time advising against travel to Greece and there wasn't (to the best of my knowledge) a full lockdown in the area.

In my personal view from a reading of the legislation, this will come down to a technical debate regarding whether the changes which may or may not have been made by the hotel, but hadn't been confirmed by Jet2 at this time, were or weren't significant in a reading of the legislation, and this is something I can't answer with a degree of certainty on the basis of case law for you, simply as I haven't yet seen case law dealing with this particular aspect of legislation in these particular (or very similar) circumstances.

Other consumer rights legislation again may or may not determine any changes as reasonable at this stage.

eskbanker

stoem said:

There's no dispute about my right to cancel.
The dispute is purely around the refund of the deposit. Jet2, as a default stance, issues no refunds of deposits in such cases. 

Well yes, of course a traveller can elect to cancel a holiday booking at any time!  Personally I'd see the key point here as being whether the cancellation is regarded as you pulling the plug unilaterally (thereby being subject to the cancellation policies within Jet2's Ts & Cs) or legitimately exercising your rights under the PTRs, and the refunding of the deposit then flows as a direct consequence from that.

stoem said:
They point to their T&C's and treat this as 'business as usual' whilst simultaneously telling me that these are 'exceptional circumstances' and I should therefore put up with the changes without reduction in charges or free transfer of my deposit to another holiday, both of which I would have accepted. 

The wider context is an interesting issue - there is an argument the pandemic should lower people's expectations about whether holidays genuinely could be 'normal', but the law didn't change!  It wouldn't surprise me if a court viewed some reductions in facilities as being more 'acceptable' than usual though....

stoem said:

I'm still not sure how and if I should respond to the fact that the defendant does not wish to call the only witness.

Sorry, I know this is what you specifically wanted assistance with, and I can't really help as I'm not familiar enough with court processes, hence the previous suggestion to engage with sites like Legal Beagles, in the absence of deep knowledge here.  Based on the above discussion, I would be curious if you feel there's any value in questioning a witness, as it seems to me that the main issues are legal interpretation rather than any dispute about the facts of who said what, i.e are you seeking to rely on anything that Jet2 said?  However, the principle of discrediting a witness may have merit, for point-scoring purposes? 

stoem said:
A reminder, here's the angle the law firm took which I initially consulted.

Firstly, we would note your agreement in your email that the package for which our client contracted and paid for could not have been provided as advertised, due to Covid restrictions.

We would contend that regardless of the circumstances being unprecedented, under the Package Travel and Linked Travel Arrangements Regulations 2018, our client remains entitled to a full refund of the deposit.

S11 of the above regulations referring to the alteration of other package travel contract terms, state at 11(5) that the traveller may either (a) accept proposed changes provided by you or (b) terminate the contract without paying a termination fee.

S11(8) goes further to state that the organiser must refund all payments made by or on behalf of the traveller, without undue delay and in any event, not later than 14 days after the contract is terminated. 

What specifically did the email say on that point?  The cited paragraphs of regulation 11 only apply in the event of significant changes specifically, so to what extent did Jet2 concede that the proposed changes were significant?