Section 75 and Travel Agents (also don't use Dream World Travel)

mrweeble

In late 2019 I paid Dream World Travel for some flight tickets for to Orlando flying there in July and back in August 2020 with Virgin though Dream World Travel. Virgin cancelled all their flights at that time so I asked Dream World for a refund. For months they palmed us off with "Virgin haven't refunded us". Eventually (November, after Virgin had announced that they had cleared their refund backlog) we called up Virgin and they informed us that they could find no record of us ever having had tickets (Dream World never got round to issuing us e-Tickets, just their own booking confirmation and an ATOL certificate). I confronted Dream World with this and magically they said they had our money back from the airline and it would be with us soon. Months went by with us chasing them and every time the money will be with us in a few more weeks and then never is.

So since I bought them using a Halifax credit card, I thought I'd use section 75. I raised it with Halifax and they rejected my chargeback claim because it had been more than 120 days. "Chargeback"? I asked for section 75. I asked them about this and they responded that chargebacks need to be within 120 days, continuing to ignore my request for Section 75. I spoke to someone at Halifax on the phone today, and he said that Section 75 doesn't apply because the transaction is with an agent not the airline. This to me sounds like bovine manure. That is like saying If I buy a washing machine from Curry's and it doesn't show up and Curry's won't refund me, then Section 75 doesn't apply because I didn't buy it directly from Hotpoint themselves.

Is what they are saying true, or should I escalate it with the Financial Ombudsman?

What recourse do I have to get my money back off Dream World Travel? Am I left with just the Small Claims Court?

cubegame

Halifax are in the wrong. Call again and ask to speak to someone who know what they are talking about. Tell them they are jointly liable and you expect the money credited against your account within 3 working days.

eskbanker

What they are saying is true - a section 75 claim requires an unbroken debtor-creditor-supplier chain, so the inclusion of an agent as a fourth party breaks that chain, allowing the creditor to reject the claim.

https://www.moneysavingexpert.com/reclaim/section75-protect-your-purchases/#exceptions

In terms of options open to you, it doesn't look like your card company is on the hook, so that just leaves court action, or travel insurance.

Caz3121

mrweeble said:

 That is like saying If I buy a washing machine from Curry's and it doesn't show up and Curry's won't refund me, then Section 75 doesn't apply because I didn't buy it directly from Hotpoint themselves.

not really the same situation

in the Curry's case, Curry's purchase goods from Hotpoint and they then have the goods to sell on to customers
third party ticket sellers do not purchase a stock of tickets to sell on, they are an intermediary and after you have paid them they will then purchase a ticket on your behalf

https://www.moneysavingexpert.com/reclaim/section75-protect-your-purchases/
"You must have direct links with the creditor and supplier to be able to use Section 75. Technically there must be a direct link between the debtor (that's you, the customer), the creditor (the credit card company – eg, American Express, Lloyds, Barclaycard) and the supplier (the retailer selling you the goods or service).

If that relationship is deemed to be broken by the involvement of an intermediary or third party, Section 75 protection WON'T apply."

Letter before Action and small claims court may be the best approach (LBA may spur them into action)

Upsidedownandaround

I would escalate to the ombudsman. I’m not convinced this is correct in your situation.

If as your agent they had completed their contract by providing you with a valid ticket and the breach of contract was by Virgin in the flight being cancelled and/or then failing to provide Dream Travel with a refund then that would break the creditor supplier link.

According to your circumstances you contracted with Dream Travel for a ticket on a Virgin flight. If they never provided you with the e ticket and Virgin never issued one (although it sounds like you don’t have proof of this) then the breach of contract is them failing to provide the ticket as opposed to the flight and therefore there is no 3rd party involved in this contract. 

You (the creditor) contracted with Dream Travel (the supplier) for a ticket on a Virgin flight and this ticket was never provided to you and that is a breach of contract.

eskbanker

Upsidedownandaround said:

You (the creditor) contracted with Dream Travel (the supplier) for a ticket on a Virgin flight and this ticket was never provided to you and that is a breach of contract.

OP is the debtor rather than the creditor, but personally I think you're putting too much weight on the lack of tickets - it's not uncommon for tickets to be issued quite close to departure date, so lack of these isn't necessarily a breach of contract, depending on how far in advance the cancellation was.

However, my understanding remains that the fundamental structure of the contractual arrangement is what drives s75 eligibility, so entering a contract with an agent who isn't providing the service itself inherently nullifies the potential to claim, regardless of which party actually breaches, i.e. the supplier (Virgin here) is predetermined and the debtor doesn't get to choose which company is the supplier if an alleged breach occurs:

If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.

Upsidedownandaround

eskbanker said:

Upsidedownandaround said:

You (the creditor) contracted with Dream Travel (the supplier) for a ticket on a Virgin flight and this ticket was never provided to you and that is a breach of contract.

OP is the debtor rather than the creditor, but personally I think you're putting too much weight on the lack of tickets - it's not uncommon for tickets to be issued quite close to departure date, so lack of these isn't necessarily a breach of contract, depending on how far in advance the cancellation was.

However, my understanding remains that the fundamental structure of the contractual arrangement is what drives s75 eligibility, so entering a contract with an agent who isn't providing the service itself inherently nullifies the potential to claim, regardless of which party actually breaches, i.e. the supplier (Virgin here) is predetermined and the debtor doesn't get to choose which company is the supplier if an alleged breach occurs:

If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.

Sorry you are correct they are debitor.

They will have to read the terms of their agreement with Dream travel regarding providing tickets and whether it is a breach of contract.

They have a contract with Dream Travel to provide flight tickets. Virgin isn't involved in that contract. If Dream Travel has not provided those tickets as per the terms of the contract they have purchased then that's a breach of contract involving no 3rd party. They have directly paid them for something they have agreed to provide and failed to do so

Similarly I think you are putting to much weight on the fact the flight was cancelled. Had Covid not come along at some point the OP would have had to contact Dream Travel no doubt to chase up their e tickets and at some point when dealing with their crap customer service would probably have been in the same situation whereby they would be entitled to make a S.75 claim for Dream travels breach of contract in failing to provide their e-tickets and failing to provide a refund. The status of the Virgin flight would be irrelevant if they hadn't been provided with what they had agreed to purchase as per the terms of the contract.

This kind of thing happens regularly with these crappy OTA's. The fact that at the end of the day Virgin ended up cancelling the flight does not in my view absolve Dream travel in meeting their obligations to provide an E-ticket as part of the contract. The supplier of the tickets is dream travel.

eskbanker

Upsidedownandaround said:

Similarly I think you are putting to much weight on the fact the flight was cancelled.

???  I'm not putting any weight on that, my point is exclusively about how the contract construction negates any s75 protection from the creditor, regardless of what breach, if any, occurred. 

In other words, the creditor can reject a s75 claim without even needing to consider whether or not there has been a breach, simply by virtue of the fact that the contract isn't with the supplier of the actual goods/service being bought, who are the only supplier as far as s75 is concerned....

Upsidedownandaround

eskbanker said:

Upsidedownandaround said:

Similarly I think you are putting to much weight on the fact the flight was cancelled.

???  I'm not putting any weight on that, my point is exclusively about how the contract construction negates any s75 protection from the creditor, regardless of what breach, if any, occurred. 

In other words, the creditor can reject a s75 claim without even needing to consider whether or not there has been a breach, simply by virtue of the fact that the contract isn't with the supplier of the actual goods/service being bought, who are the only supplier as far as s75 is concerned....

The supplier in the contract is clearly DreamWorld Travel. How can Virgin be considered the supplier in the contract when no existing contractual relationship exists or has existed between the Debtor and Virgin?

Virgin is no party to this contractual relationship and therefore is not the supplier if no Eticket has been issued by them.

The Debtor (the OP), the Creditor (the credit card company) and the Supplier (Dream World Travel) have entered in to a contractual relationship. The contractual agreement is for the debtor (OP) to pay a sum of money in return for the supplier (DWT) providing a flight ticket. The Creditor (CC) has provided credit.The fact that the supplier agrees to buy a ticket from Virgin for the debtor does not place any obligations on Virgin in anyway or make them a party in this contractual relationship or one with the debtor. There is also a clear link between the debitor-creditor-supplier (OP-CC-DWT) here as they are the only parties in this contractual relationship.

IF.... the supplier in this contract buys a ticket from Virgin on the debtors behalf then they have fulfilled their obligations and a contract of carriage is created between Virgin and the debtor whereby Virgin agrees to fly the debtor from A to B. If this flight is cancelled then Virgin is in breach of contract but the OP has no S.75 remedy as the link in the debitor-creditor-supplier chain is broken. DWT is no longer the supplier as they have fulfilled their obligations of providing the ticket and Virgin is contractually obliged to get the OP from A-to-B. The creditor is has no direct relationship with Virgin and is therefore not jointly and severally liable for any breach of contract. This would be the usual scenario we see on this board where S.75 refunds get rejected by credit card companies.

If what the OP says is true that he did not receive any Eticket and Virgin have never issued one then no contractual relationship has been created between the OP and Virgin. Virgin has no obligations to the OP and has no existing contractual relationship with him so cannot be the supplier in this relationship. What he does have though is a contractual relationship with the Supplier (DWT) and the Creditor (CC) and since the Supplier has failed to fulfill it's obligation to provide them with an eticket they are in breach of contract. In these circumstances their is a clear unbroken link between the debtor purchasing the ticket from the supplier and creditor faciliating this via credit. They are therefore jointly and severally liable for this breach of contract given DWT have failed to provide what was agreed.

eskbanker

Not completely convinced but do follow your line of argument, although I still think this is all moot anyway as I don't see any evidence that DWT were actually in breach - the mere fact that the tickets hadn't been issued at the time of cancellation isn't in itself a breach (assuming that they could still have been issued before departure had the flights been going ahead), and I don't believe they're under any obligation to pass on refunds within a contractually-specified or legally-mandated timescale, so what would the alleged breach of contract be?

Upsidedownandaround

Failing to deliver what was contractually agreed is one of the most obvious and blatant breaches of contract possible. It’s the most material part of the contract other than price. 

Failing to refund 15 months after this failure by the supplier to fulfil its contractual agreements is also a rather blatant breach of contract.