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

eskbanker

The point is about timing.

DWT were obliged to supply tickets in time for departure but not having done so at the time of cancellation doesn't inherently put them in breach unless there's a clause committing them to provide tickets by an earlier date.

Likewise the test for breach on the refund would require a date by which they were contractually or legally obliged to refund, rather than just a (not unreasonable) feeling that they're dragging their heels.

I'm not trying to defend their conduct as reasonable but making a breach of contract claim stick obviously requires specific evidence of actual breach(es), especially in the context of the claim already having been rejected....

Upsidedownandaround

They contractually agreed to provide tickets for a flight last year. They failed to do so. It’s now a year later after the flight would have taken off and ceased to exist. 

I’m struggling to fathom how you think that is not a breach of that contract simply by saying they may get round to it at some point.

Regarding refund. Most contracts don’t have a clause in them for refunds due to breach of contract. That doesn’t mean when a contract is breached a person can just refuse to refund on the basis that they may get round to it one day.

In any event the OP has been given plenty of advice to decide what course of action to take.

Alan_Bowen

I also consider this has the potential for a section 75 claim but if the bank says 'no' and you want your money back, sue them.Moneyclaim.gov.uk is where you go to start it, google is just full of people who also find no tickets were ever issued and no refunds offered. 

eskbanker

The agent's obligation to issue tickets was effectively superseded by the cancellation of the flights by the airline, so from that point on there effectively ceased to be any merit in asserting a breach of contract for non-supply of tickets, in that supply after that point would have been (a) impossible and (b) futile.  In terms of actions up to that point, if they were under any contractual or legal obligation to supply tickets by a certain date and failed to do so then that would be different - their current terms suggest that they commit to supplying by ten days before departure, but that's not to say that OP booked under current terms.

On the refund issue, OP makes it clear that DWT have repeatedly agreed to refund, so there's no refusal to do so, just ongoing delays.  As I say, I'm not defending DWT here, but just making the point that delaying a refund isn't in itself a breach of contract unless OP can point to a contract clause, or implied term from legislation, that mandates refunds within x days/weeks/months when the airline cancels (which isn't in itself a breach of contract by DWT of course).

The issue of delayed agent refunds has been covered on numerous other threads and the usual conclusion is that booking flights directly with the airline obliges the airline to refund its customer within seven days under EC 261/2004, but when booking via an agent this provision doesn't actually apply to refunding the traveller.

As you say, hopefully this discussion has enlightened OP to the complexity of the issue and the difficulties of trying to hold a creditor responsible under s75....

Upsidedownandaround

eskbanker said:

The agent's obligation to issue tickets was effectively superseded by the cancellation of the flights by the airline, so from that point on there effectively ceased to be any merit in asserting a breach of contract for non-supply of tickets, in that supply after that point would have been (a) impossible and (b) futile.  In terms of actions up to that point, if they were under any contractual or legal obligation to supply tickets by a certain date and failed to do so then that would be different - their current terms suggest that they commit to supplying by ten days before departure, but that's not to say that OP booked under current terms.

On the refund issue, OP makes it clear that DWT have repeatedly agreed to refund, so there's no refusal to do so, just ongoing delays.  As I say, I'm not defending DWT here, but just making the point that delaying a refund isn't in itself a breach of contract unless OP can point to a contract clause, or implied term from legislation, that mandates refunds within x days/weeks/months when the airline cancels (which isn't in itself a breach of contract by DWT of course).

The issue of delayed agent refunds has been covered on numerous other threads and the usual conclusion is that booking flights directly with the airline obliges the airline to refund its customer within seven days under EC 261/2004, but when booking via an agent this provision doesn't actually apply to refunding the traveller.

As you say, hopefully this discussion has enlightened OP to the complexity of the issue and the difficulties of trying to hold a creditor responsible under s75....

It’s absolutely irrelevant whether the flight was cancelled or not other than in contractual terms for damages.

 They agreed to provide tickets and failed to do so. It’s not their fault if the flight was cancelled but they still have obligations. If they fail in this they have breached the contract.

On what you are saying a S75 claim should never succeed if a company simply states they will give a refund regardless of the time that transpires and whether they do so.

Why did you suggest court action in your first post if you are that adamant there is no breach of contract?

eskbanker

As you might expect, I disagree about the relevance of the cancellation to the agent's obligations!  As soon as the flights were cancelled that superseded their obligation from providing tickets to providing a refund (or alternative travel arrangements if acceptable to OP).

My recommendation to pursue via court stands, as this will often force the issue and prompt a supplier to get on with their obligation to refund, once they realise that their delaying tactics will be subject to independent scrutiny by a court and potentially expose them to additional cost - even the letter before action will sometimes have this effect.  A court instruction to repay the debt within x days/weeks/months obviously has some teeth, even if such terms weren't in the contract.

I'm not adamant that there hasn't been a breach of contract though, but just haven't seen credible evidence that there definitively has been, in terms of enough to overturn the creditor's rejection of the claim....

Upsidedownandaround

So your advice to the OP is not to pursue a S.75 claim and subsequently take that to the Financial Ombudsman on the basis that there has been a breach of contract by DreamWorld Travel on the basis that there has not been a definitive breach of contract. A process that is completely cost free.

But they should proceed with court action against DreamWorld Travel on the basis that there may have been a breach of contract and a court will find DreamWorld Travel in breach of that contract and order them to pay. A process which costs the OP money and even if they succed Dreamworld Travel may just do what they are doing already, not pay. 

That makes no sense to me.

eskbanker

OP has already tried a s75 claim and it was rejected, but there's nothing stopping them from pursuing it further if they choose to - they could complain to the creditor and ultimately FOS, which, as you say, wouldn't cost anything, but (especially the FOS part) would probably take ages and stands or falls on proving a clear breach of contract, which, as above, I have doubts over.

Issuing DWT with a letter before action and being prepared to use MCOL is more about enforcing debt repayment rather than trying to prove a breach of contract as such, so is a lower threshold.  The costs of a successful claim can be recouped, although you're right that ultimately DWT could ignore a court order and they'll have shallower pockets than Halifax, but my suspicion remains that DWT will stump up before it gets that far.

Upsidedownandaround

A S75 wasn't rejected. A claim was never made. They spoke to someone on the phone regarding a S.75 claim and they, probably based on limited information regarding the circumstances, said it wasn't possible because they bought from an agent.

eskbanker

OP asserts that a s75 claim was made but that it wasn't processed properly, which amounts to much the same thing I suppose, in that it apparently hasn't really been formally rejected after full consideration of its merits.