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

Mark_R

@Alan_Bowen / @sheramber :
Re: PTS... the company had their PTS membership number and logo included on their web site, emails and the itinerary documents when we were dealing with them, though at some point they dropped their membership.  I spoke to PTS who at first could not find any evidence that they had ever been a member, but then later found them and confirmed that my funds had gone into PTS's trust account and certain funds (I did not get any specifics) had been paid on to suppliers.
The reason PTS could not help any further is because they can confirm the flow of funds through their account but they have no authority to recall any funds which have left the account or to demand that funds be returned into it.  I guess all they can provide is an audit trail.... which may be helpful if this case needs to go to court.  If you believe they have greater powers than this please let me know!

@eskbanker / @twopenny :
As you said, even though it seems like the company hasn't been involved in any holiday services to Sri Lanka since first lockdown, according to CH the company is still active and trading.  However I think my direct dealings with them (aside from legal proceedings) are finished as I have done all I can in terms of requesting a refund.

tightauldgit

If the stumbling block to getting your money back from somewhere is that the company is still listed as active on companies house then one way to pursue this might be to apply for a winding up order? I'm not saying it'll be the cheapest or quickest route but if no-one else will help you it might be something to consider? 

If anyone there is still driving the bus it would certainly get their attention. 

CKhalvashi

eskbanker said:

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?

I don't either.

OH has booked flights on my airline account using her credit card several times before now. There is no way in my views of the S75 legislation that it could be deemed we aren't travelling together and therefore that she won't benefit from those flights irrespective of whose account is used and who is the 'lead' passenger on the booking.

I would suggest that simply being named on the booking would be enough to satisfy a debtor-creditor-supplier arrangement as is required under the legislation unless someone can point to case law suggesting otherwise (which I don't believe they can).

CKhalvashi

twopenny said:

The problem seems to be that Viani are still using the escapesrilanka headed on Facebook and Twitter for customers, the company is still viable (sort of) on companies house.
Someone is trying to keep it alive to use the title.
It should be possible to make links with research of names addresses in the public domain and Google maps can show you the buildings and what businesses occupy them.
I'd say there is a connection and that shows where to aim.

If the original company was in difficulty there are 2 ways of doing this.

First option is that the company went into administration, at which point it would have been bought out (normally for £1) and the assets and liabilities would remain in that company, ensuring the holiday could still go ahead on original terms.

The second is that this was dealt with via an asset sale. In this case it may be completely impossible to go after the original company as that company no longer exists and also impossible to go ahead with action against the new company, as there is not a contract there with that specific entity. That doesn't mean there isn't a claim against the bank though, who would share liability (see my post above) with the company that would no longer exist under S75.

If that fails, it would lead to a PTS claim or claiming via ATOL if necessary, which all UK-licensed agents must sign up to in the case of certain conditions being met. It looks in this case like they would have been as the booking included flights.

tightauldgit

CKhalvashi said:

twopenny said:

The problem seems to be that Viani are still using the escapesrilanka headed on Facebook and Twitter for customers, the company is still viable (sort of) on companies house.
Someone is trying to keep it alive to use the title.
It should be possible to make links with research of names addresses in the public domain and Google maps can show you the buildings and what businesses occupy them.
I'd say there is a connection and that shows where to aim.

If the original company was in difficulty there are 2 ways of doing this.

First option is that the company went into administration, at which point it would have been bought out (normally for £1) and the assets and liabilities would remain in that company, ensuring the holiday could still go ahead on original terms.

The second is that this was dealt with via an asset sale. In this case it may be completely impossible to go after the original company as that company no longer exists and also impossible to go ahead with action against the new company, as there is not a contract there with that specific entity. That doesn't mean there isn't a claim against the bank though, who would share liability (see my post above) with the company that would no longer exist under S75.

If that fails, it would lead to a PTS claim or claiming via ATOL if necessary, which all UK-licensed agents must sign up to in the case of certain conditions being met. It looks in this case like they would have been as the booking included flights.

The OP seems to suggest that the company hasn't actually gone into admin though it's just sitting there as a zombie company which isn't trading but still exists. 

Had they gone into administration it would have to have been made publicly known at some point and I think any customers would have been informed as part of the process. 

CKhalvashi

tightauldgit said:

CKhalvashi said:

twopenny said:

The problem seems to be that Viani are still using the escapesrilanka headed on Facebook and Twitter for customers, the company is still viable (sort of) on companies house.
Someone is trying to keep it alive to use the title.
It should be possible to make links with research of names addresses in the public domain and Google maps can show you the buildings and what businesses occupy them.
I'd say there is a connection and that shows where to aim.

If the original company was in difficulty there are 2 ways of doing this.

First option is that the company went into administration, at which point it would have been bought out (normally for £1) and the assets and liabilities would remain in that company, ensuring the holiday could still go ahead on original terms.

The second is that this was dealt with via an asset sale. In this case it may be completely impossible to go after the original company as that company no longer exists and also impossible to go ahead with action against the new company, as there is not a contract there with that specific entity. That doesn't mean there isn't a claim against the bank though, who would share liability (see my post above) with the company that would no longer exist under S75.

If that fails, it would lead to a PTS claim or claiming via ATOL if necessary, which all UK-licensed agents must sign up to in the case of certain conditions being met. It looks in this case like they would have been as the booking included flights.

The OP seems to suggest that the company hasn't actually gone into admin though it's just sitting there as a zombie company which isn't trading but still exists. 

Had they gone into administration it would have to have been made publicly known at some point and I think any customers would have been informed as part of the process. 

That doesn't mean it won't though.

I would still argue though that S75 is the correct way to deal with this for the moment and have explained my reasoning for this above.

Mark_R

@tightauldgit / @CKhalvashi :
All good points, thank you.  I too can't see any reason why the bank wouldn't be jointly liable under S75 for myself and for any of the other listed travellers regardless of whether they are immediate family or not, but it looks as though the bank is working their way through the T&Cs of the holiday contract that we have with Viani, picking out any potential loopholes which they can use in their favour. 

I will take everyone's helpful comments on board in my reply to the bank and let you know what their response is!

eskbanker

Mark_R said:

it looks as though the bank is working their way through the T&Cs of the holiday contract that we have with Viani, picking out any potential loopholes which they can use in their favour. 

It's not really surprising that they'll be doing that, given that you're seeking £19K of their money to settle your claim - if they're legally obliged to pay out (as appears likely) then you should ultimately prevail, but some resistance probably ought to be expected....

sheramber

Playng Devil's Advocate.

The holiday is still available if the company are offering to postpone it to a later date, so unless the company stop trading would S75 apply?

Will the bank consider the OP broke the contract by not paying the balance due?

CKhalvashi

sheramber said:

Playng Devil's Advocate.

The holiday is still available if the company are offering to postpone it to a later date, so unless the company stop trading would S75 apply?

Will the bank consider the OP broke the contract by not paying the balance due?

Yes if there's a breach in the original contract. It looks like there has been.

Possibly, but also likely not if the dates had not been finalised. From what OP states they hadn't, but a reasonably small date range was given. This is therefore said without having seen the paperwork.