Still trying to get refund for Sri Lanka holiday cancelled by package provider - HELP!

Mark_R

Hello,

Apologies for the length of this post but I wanted to include as much information as possible...

In 2019 my wife and I paid approx £19,000 (£5k deposit on my credit card and £14k flight payment on her debit card) to a small specialist holiday package provider for what was supposed to be a luxury "trip of a lifetime" to Sri Lanka for 7 of us, for travel in June-2020.  Total holiday price was to be just under £30k.

Covid and lockdown came along and we agreed to the package provider's request to postpone until Feb-2021.
We agreed again to a further postponement to Dec-2021 at their request.
As that date neared, travel to Sri Lanka was still not viable and the provider requested we postpone again to an unspecified future date. 
We demanded a refund at this point but the package provider refused, stating that all of the money we paid had already gone to their suppliers (hotels, etc.) for "early bird discount rates" which were not refundable and our only option was to postpone.  We persevered for months but they did not budge.
We have not paid the final payment of roughly £9k to them (due 30 days before start of trip) as they never provided us with a final invoice or method to pay despite our asking.

We contacted ATOL who couldn't help as the company is still actively trading, despite their web site and office no longer being available.
We contacted Protected Trust Services (PTS) who could not help either.
We also contacted Citizen's Advice who offered some advice but were unable to do anything more.

I opened a Section 75 claim with my bank which is still open after 9 months, after much back and forth communication and them trying to find every possible reason to deny their joint liability.  Their latest points of contention are in reference to the Lead Passenger part of the T&Cs of our holiday booking -- the section is:

"Lead Name:

The lead name on any booking with us accepts the full responsibility of collecting the full balance payable for the booking and indemnifies <PROVIDER NAME> against any loss from any individual failing to pay within your group. The lead name of the group is also responsible for ensuring that all group members are aware they are bound by our terms and conditions. The lead name is also responsible for the completion of the online guest list on behalf of all persons on the booking. It is understood that those booking via email or telephone agree to, and accept our terms and conditions."

The bank's arguments:

1.) "Lead passenger is not in your name and as the card used to fund the agreement is yourself the contract itself is in your wife’s name, meaning it was not yourself who was bound to the terms and conditions."

- My assumption is that the bank is jointly liable for the entire purchase as part of it was funded with my credit card, and as my wife and I each paid for part of the booking we are jointly in contract.  Only one name can be provided as Lead Passenger, and I don't see anything in that clause about the contract itself being specifically for the Lead Passenger.

2.) "Furthermore out of the seven fellow travellers the bank is not liable for four persons as they are not immediate family of your household and the terms and conditions  stipulate that each passenger should be familiar with the terms and conditions."
- Surely this is nonsense??  The 6 other passengers are all related to me (wife, daughter, mother-/father-/brother-/sister-in-law) but regardless of this I can't see how the above T&Cs allow the bank to deny liability for all but immediate family.

The bank's follow up question asks if the remainder balance of approx £9k was ever paid.  The answer is no as we asked the provider to send us a final itinerary and invoice for the final payment and we were never given these, but I expect the bank will use this as a further excuse that we have somehow violated the T&Cs by not paying for the holiday in full within the required time.

However, the government's "Package Travel and Linked Travel Arrangements Regulations 2018" states that if a package holiday provider can't provide the agreed package then they must give a full refund -- surely this overrides the T&Cs of any contract anyway?

Can someone please help us by advising on the how we should reply to the bank on the above points, and whether there are any other avenues we can take towards getting compensation?  This is a huge amount of money for us and simply not fair that we paid it and cannot get it back.
Taking the provider to court is the very last action we'd want to pursue and I'm not even sure how successful it would be as the company seems no longer active even though they are still trading according to Companies House.

Throughout all of this ordeal I'm amazed that there is no organisation with any teeth to enforce refunds for cancelled package holidays!

Many thanks,
Mark

tightauldgit

Sounds like a complicated one to be honest - maybe worth getting some proper legal advice given the value of the holiday? 

What is the actual status of the holiday and travel company as things stand? Is your holiday officially cancelled or just postponed? Are travel company expecting you go at some point in the future? Have they ceased trading do you think? 

With regards the bank we had something similar-ish here recently with regards to tickets I think where the bank was refusing to refund for other parties other than the card holder. Not sure what came of that but it seemed odd to me

I also can't see how the bank are arguing that you aren't bound by the Terms of the contract by quoting you a paragraph that states all group members are bound by the Terms of the contract. 

Did you have travel insurance incidentally? Are they of any help? They might at least be able to advise how to proceed?

twopenny

I'm going to go a bit sideways at the moment. Don't reply if you don't want to get into discussion.

"We have not paid the final payment of roughly £9k to them (due 30 days before start of trip) as they never provided us with a final invoice or method to pay despite our asking."

The final payment was due 30 days before the start of the trip.....so was there a date for the trip?

If so how was this communicated to you.

eskbanker

Mark_R said:

The bank's arguments:

1.) "Lead passenger is not in your name and as the card used to fund the agreement is yourself the contract itself is in your wife’s name, meaning it was not yourself who was bound to the terms and conditions."

- My assumption is that the bank is jointly liable for the entire purchase as part of it was funded with my credit card, and as my wife and I each paid for part of the booking we are jointly in contract.  Only one name can be provided as Lead Passenger, and I don't see anything in that clause about the contract itself being specifically for the Lead Passenger.

It certainly keeps things simpler if the lead passenger is the cardholder, but if the cardholder is a party to the contract, by virtue of being named on the passenger list, then that should suffice.  An FOS decision supports this interpretation:

I thought there was a debtor-creditor-supplier arrangement between Mr W, the holiday company and Barclays, in order for Mr W to make a S75 claim. This was because Mr W had paid the holiday company directly using his Barclays credit card and he was listed as a passenger on the booking confirmation. Although he wasn’t the lead passenger, the very nature of these types of bookings was that only one person could ever be the lead passenger. I didn’t think this meant only the lead passenger had a contract with the holiday company – Mr W did too.

https://www.financial-ombudsman.org.uk/decision/DRN3871979.pdf

Mark_R said:

2.) "Furthermore out of the seven fellow travellers the bank is not liable for four persons as they are not immediate family of your household and the terms and conditions  stipulate that each passenger should be familiar with the terms and conditions."
- Surely this is nonsense??  The 6 other passengers are all related to me (wife, daughter, mother-/father-/brother-/sister-in-law) but regardless of this I can't see how the above T&Cs allow the bank to deny liability for all but immediate family.

Agreed, it's nonsense - there is no such distinction about immediate family in the legislation and the above interpretation would support the view that all parties are covered.

Mark_R said:

The bank's follow up question asks if the remainder balance of approx £9k was ever paid.  The answer is no as we asked the provider to send us a final itinerary and invoice for the final payment and we were never given these, but I expect the bank will use this as a further excuse that we have somehow violated the T&Cs by not paying for the holiday in full within the required time.

However, the government's "Package Travel and Linked Travel Arrangements Regulations 2018" states that if a package holiday provider can't provide the agreed package then they must give a full refund -- surely this overrides the T&Cs of any contract anyway?

It's incumbent on you in a s75 claim to demonstrate breach of contract, so it's not unreasonable for the bank to need evidence of exactly what contract is in place, even if that has to be constructed from multiple sources, as well as details of how it's being breached.  If you've paid all that money but don't have a confirmed itinerary or invoice then I can see that this will potentially be problematic - statutory rights such as those granted by the PTRs do indeed override contract Ts & Cs but there is still the requirement to show how the supplier is breaching the contract, i.e. what specifically is 'the agreed package' at this point in time and how can you conclusively demonstrate that it's not going to be provided?

Maybe worth naming the company on here, in case it rings any bells with others?

Mark_R

@tightauldgit :
Unsure of the "official" state of the holiday due to the circumstances. They were not able to meet our agreed upon (via emails) date of Dec-2021 and advised we postpone, we requested a refund of the money paid so far (as we should be entitled to via the Package Travel 2018 government regulations), and they just let the time lapse while they kept stating our only option was to postpone.
Before the 30 day deadline we requested a final confirmed itinerary and an invoice to pay the remainder, neither of which they provided because they knew the trip wouldn't be possible in December.  They had not even purchased the flights.
As for ceasing trading, their web site went down long before our trip date and they were no longer answering the phone so I assume they are not actively trading, but according to Companies House their company is still registered as Active and has not closed.
We did have single-trip travel insurance for the original departure date in June-2020 but we did not get any for the subsequent travel dates (Feb-2021, Dec-2021) as plans/flights/itineraries never got fully set in stone... plus at those times it would have been difficult to get any insurance which didn't have a covid cancellation clause.

@twopenny :
We did have a confirmed itinerary and start date for the original Jun-2020 trip, but they requested us to postpone before the 30 day final payment deadline so they did not send us an invoice for the final payment at that time.
There was also a trip date in Dec-2021 (the final postponement) based on a draft revised itinerary they had emailed to us months before, but before the 30 day deadline of that we requested a confirmed itinerary and final payment invoice -- neither of which they provided.
All communication with them was via emails which we have kept.

lisyloo

Do you have legal cover on your household insurance? (or a standalone policy - NOT motor).

twopenny

So the payment was to be 30 days before Dec 2021 for which you had an itinerary and leaving date?

Did you have a leaving date and time?

So ensuring that you had a trip and flights in place that would occour once full payment had been made?

born_again

Mark_R said:

Hello,

Apologies for the length of this post but I wanted to include as much information as possible...

In 2019 my wife and I paid approx £19,000 (£5k deposit on my credit card and £14k flight payment on her debit card) to a small specialist holiday package provider for what was supposed to be a luxury "trip of a lifetime" to Sri Lanka for 7 of us, for travel in June-2020.  Total holiday price was to be just under £30k.

Covid and lockdown came along and we agreed to the package provider's request to postpone until Feb-2021.
We agreed again to a further postponement to Dec-2021 at their request.
As that date neared, travel to Sri Lanka was still not viable and the provider requested we postpone again to an unspecified future date. 
We demanded a refund at this point but the package provider refused, stating that all of the money we paid had already gone to their suppliers (hotels, etc.) for "early bird discount rates" which were not refundable and our only option was to postpone.  We persevered for months but they did not budge.
We have not paid the final payment of roughly £9k to them (due 30 days before start of trip) as they never provided us with a final invoice or method to pay despite our asking.

We contacted ATOL who couldn't help as the company is still actively trading, despite their web site and office no longer being available.
We contacted Protected Trust Services (PTS) who could not help either.
We also contacted Citizen's Advice who offered some advice but were unable to do anything more.

I opened a Section 75 claim with my bank which is still open after 9 months, after much back and forth communication and them trying to find every possible reason to deny their joint liability.  Their latest points of contention are in reference to the Lead Passenger part of the T&Cs of our holiday booking -- the section is:

"Lead Name:

The lead name on any booking with us accepts the full responsibility of collecting the full balance payable for the booking and indemnifies <PROVIDER NAME> against any loss from any individual failing to pay within your group. The lead name of the group is also responsible for ensuring that all group members are aware they are bound by our terms and conditions. The lead name is also responsible for the completion of the online guest list on behalf of all persons on the booking. It is understood that those booking via email or telephone agree to, and accept our terms and conditions."

The bank's arguments:

1.) "Lead passenger is not in your name and as the card used to fund the agreement is yourself the contract itself is in your wife’s name, meaning it was not yourself who was bound to the terms and conditions."

- My assumption is that the bank is jointly liable for the entire purchase as part of it was funded with my credit card, and as my wife and I each paid for part of the booking we are jointly in contract.  Only one name can be provided as Lead Passenger, and I don't see anything in that clause about the contract itself being specifically for the Lead Passenger.

2.) "Furthermore out of the seven fellow travellers the bank is not liable for four persons as they are not immediate family of your household and the terms and conditions  stipulate that each passenger should be familiar with the terms and conditions."
- Surely this is nonsense??  The 6 other passengers are all related to me (wife, daughter, mother-/father-/brother-/sister-in-law) but regardless of this I can't see how the above T&Cs allow the bank to deny liability for all but immediate family.

The bank's follow up question asks if the remainder balance of approx £9k was ever paid.  The answer is no as we asked the provider to send us a final itinerary and invoice for the final payment and we were never given these, but I expect the bank will use this as a further excuse that we have somehow violated the T&Cs by not paying for the holiday in full within the required time.

However, the government's "Package Travel and Linked Travel Arrangements Regulations 2018" states that if a package holiday provider can't provide the agreed package then they must give a full refund -- surely this overrides the T&Cs of any contract anyway?

Can someone please help us by advising on the how we should reply to the bank on the above points, and whether there are any other avenues we can take towards getting compensation?  This is a huge amount of money for us and simply not fair that we paid it and cannot get it back.
Taking the provider to court is the very last action we'd want to pursue and I'm not even sure how successful it would be as the company seems no longer active even though they are still trading according to Companies House.

Throughout all of this ordeal I'm amazed that there is no organisation with any teeth to enforce refunds for cancelled package holidays!

Many thanks,
Mark

I agree with @eskbanker

Immediate family is a very grey area & depends on how they are going to view it. They could consider it to be only living at the same address or other reasons.

https://www.investopedia.com/terms/i/immediate-family.asp

Not very clear cut. 

In effect you have to will raise it as a complaint, let if run the banks course & then look at taking it to FOS if they do not agree.

I'm a bit confused by the "Must give full refund" when you have not made full payment.
Bank is only going to pay out for the £19K at best. They are not going to pay the £9K you have not paid.

eskbanker

born_again said:
I agree with @eskbanker

Immediate family is a very grey area & depends on how they are going to view it. They could consider it to be only living at the same address or other reasons.

https://www.investopedia.com/terms/i/immediate-family.asp

Not very clear cut.

Just to be clear, I was saying that I'm not aware of any legal basis that would support their apparent view that an s75 refund can be denied to a subset of passengers on a group booking, so I don't see it as a grey area, or do you know of anything that would endorse their position?

Mark_R

Thanks to you all for your quick and very helpful ongoing feedback, this is more than I've had from any relevant organisations so far and it's very much appreciated!

@lisyloo :
I will have to check whether I have legal cover on home insurance. If so, and if I had to go to court for this, would I then raise a claim on my home insurance and effectively use them as my solicitors?
Or do you mean I should just ask them for further legal advice on how to proceed?

@born_again :
"I'm a bit confused by the "Must give full refund" when you have not made full payment."
Sorry, I should have clarified that by "full refund" I meant full refund of the money paid so far, the £19k.

@eskbanker / @twopenny :
The company is Viani London Ltd and the name of their Sri Lanka specialist travel arm is "Escape in Sri Lanka" -- their website was www.escapeinsrilanka.com .

To clarify on the travel date, etc.:
For the 1st postponement until Feb-2021: they sent us an updated itinerary email including specific travel dates/times and flight details - the flights were cancelled by them (or possibly never booked) due to the 2nd postponement.
For the 2nd postponement until Dec-2021: In July-2021 they sent an email stating "your holiday is rescheduled starting the 20th December 2021 (first night in Sri Lanka) without any changes to the original (Feb-2021) itinerary", with a separate email stating "I have the confirmation from the operational office in Sri Lanka" and that nearer the travel date they would send us a new itinerary, though they never did despite our requests.
So they confirmed that the itinerary we'd be following would be the same as for the Feb-2021 trip but with the start date changed to 20-Dec-2021.
They had not booked/confirmed flight details yet so we had no confirmation of an actual flight time on 19th Dec (it would be an overnight flight).

eskbanker

Mark_R said:

For the 2nd postponement until Dec-2021: In July-2021 they sent an email stating "your holiday is rescheduled starting the 20th December 2021 (first night in Sri Lanka) without any changes to the original (Feb-2021) itinerary", with a separate email stating "I have the confirmation from the operational office in Sri Lanka" and that nearer the travel date they would send us a new itinerary, though they never did despite our requests.
So they confirmed that the itinerary we'd be following would be the same as for the Feb-2021 trip but with the start date changed to 20-Dec-2021.
They had not booked/confirmed flight details yet so we had no confirmation of an actual flight time on 19th Dec (it would be an overnight flight).

As you say, under the PTRs, cancelling (or even just proposing a significant change to) a firm booking should be enough to trigger a refund if you didn't wish to accept their revised proposal, but I can see why your card provider might have issues with the essentially unconfirmed nature of the December booking, i.e. if it was all a bit vague then that could be interpreted as a looser agreement between the parties and therefore another postponement could be construed as not being a clear breach of contract.  It sounds like the bank hasn't used this line of argument yet though, but I'm just highlighting a possible interpretation of how the PTRs might not be as useful to you as you hoped....