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

Mark_R

@sheramber / @CKhalvashi : 
Re: Finalised dates...
We were given a solid and detailed itinerary for Feb-2021 travel (the 1st revised date), then for Dec-2021 travel (2nd revised date) we were given by email a new confirmed travel start date and a confirmation that the itinerary will remain unchanged from the Feb-2021 one provided.  So I'm assuming the emails are sufficient proof of a Dec-2021 travel agreement which they were ultimately not able to provide.

Re: Not paying the balance due...
We have an email trail showing that we requested an invoice and payment method for the final payment before the deadline and that the company did not provide these, stating again that our only option was to postpone.  Surely that can't be seen as us breaking the contract as we showed full intent and the company was unwilling?

CKhalvashi

I would err on the side that OP is in the right here.

That's not to say a court would agree with me, nor the bank under S75, however I do deem this as one worth pushing.

If they can't give specific dates within a narrow band I would deem this to be a breach of contract that either the agent should have dealt with or if not the bank is equally liable for under S75 in relation to rights under the PTD. I likewise would deem the provider as being in significant breach enabling OP to cancel if they couldn't provide this. This is especially the case if flights were supposedly paid for and they can't give flight numbers and dates of these.

Before proceeding OP, please re-check every email you have received in relation to this as the bank are likely to put up a huge fight.

I'll get the relevant parts of the legislation when I'm not on a phone.

sheramber

Remember if you do agree with the bank's decision you can take the case to the Financial Ombudsman.

eskbanker

sheramber said:

Remember if you do agree with the bank's decision you can take the case to the Financial Ombudsman.

If you agree with the bank's decision then there's no need to escalate to FOS

sheramber

eskbanker said:

sheramber said:

Remember if you do agree with the bank's decision you can take the case to the Financial Ombudsman.

If you agree with the bank's decision then there's no need to escalate to FOS

oops, should read disagree

Mark_R

Hi all,
@tightauldgit, @twopenny, @eskbanker, @lisyloo, @Alan_Bowen, @sheramber, @CKhalvashi, thanks again for your feedback.

After a month of patient waiting I have received a response from the bank.  It appears that they have totally ignored our arguments against their reasons for avoiding liability and have just reiterated what they stated previously.

Their response is as follows:

We previously advised the agreement is in your wife’s name and you have only funded the agreement. You have advised as you are a passenger you are bound by the terms to validate.

Furthermore the bank advised you that only immediate family members are counted as part of a claim, this is dependent on the terms and conditions.

In this case I have taken the extract as per below, this was provided previously also which clearly states the lead passenger is liable to ensuring all passengers are aware and bound by the terms and conditions, this separates to individual liability.

The bank therefore is not liable for additional travellers that are non-related, and the agreement is not in your name this would therefore make you the financing party only.

You may wish to seek legal advice before responding.

As a reminder, the extract from the T&Cs which they are referring to above is this one:

"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."

Where the bank has said "the lead passenger is liable to ensuring all passengers are aware and bound by the terms and conditions, this separates to individual liability" -- is this true in legal terms? Surely there is nothing in the above extract which states or even implies that each passenger is individually liable for their own part of the payment of the package holiday.

Can you please offer suggestions on how to reply to this without just restating our previous arguments?

Many thanks,
Mark

eskbanker

Mark_R said:
Can you please offer suggestions on how to reply to this without just restating our previous arguments?

Have you cited the FOS case that I linked on 5 April?

CKhalvashi

I'll answer this comprehensively when I get into the office again but I feel the bank is clearly missing the wording in the law here.

Edit to add (the above was just a reminder):

My interpretation of the legislation is that OP should get some benefit from this trip, but doesn't necessarily need to be the person booking the trip themselves.

OP is still a party to the agreement, therefore the debtor-creditor-supplier link should (under my reading of the legislation) still stand.

I'd view this to be the case on the following wording of subsection 1 of S75 CCA

(1)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.

The debtor is OP, he is a party to the contract under section 12 and there is an issue with the financed agreement. That the agent has chosen to use another party as the 'lead passenger' and has chosen to not allow the OP and his wife to jointly hold the 'lead passenger' status is the problem of the agent and the bank, not OP.

If OP was not named on the agreement at all I could see the bank being right, however again, this is worth pursuing, preferably now via the formal complaint route hopefully giving certainty within 8 weeks. Please link the claim that Esk has linked above in your correspondence as this is more than relevant to this case.

Edit again to add: This is a single contract booking, there are not different contracts for different parties or different services. Payment has been made on behalf of all travellers under this single contract and OP was due to get enjoyment from this single contract.

Definitely it's complaint time. The bank is clutching at straws.

Mark_R

@eskbanker / @CKhalvashi :
I told the bank that a recent FOS decision supports this situation and I can provide the case reference if required, naively thinking that they wouldn't just ignore that sentence.  I'll be sure to provide the reference number and cite the relevant parts in my next response!

I think I'd like to give the bank one last chance before going the complaint route, armed with the helpful details and references you provided above.

Never having made a formal complaint before, I have these questions:
1.)  I assume the complaint would be raised directly to the FOS? Does the bank need to be made aware at the time of submission?
2.)  If the FOS agrees in my favour do they have the authority to force the bank to pay out? Or can the bank just adopt a "yes we'll take it under advisement but let's look for more loopholes in the T&Cs" approach?
3.)  If the FOS disagrees with my complaint is that the end of the road for my S75 claim with the bank?

eskbanker

Mark_R said:

I think I'd like to give the bank one last chance before going the complaint route, armed with the helpful details and references you provided above.

Never having made a formal complaint before, I have these questions:
1.)  I assume the complaint would be raised directly to the FOS? Does the bank need to be made aware at the time of submission?

You can only escalate a complaint to FOS once you've gone through the bank's formal complaints process anyway (a s75 claim isn't a complaint as such), so locate the procedure on their website and submit your complaint to them.  If they don't give a satisfactory response within eight weeks, you can go to FOS at that stage, but the bank doesn't need to be informed of this.

Mark_R said:

2.)  If the FOS agrees in my favour do they have the authority to force the bank to pay out? Or can the bank just adopt a "yes we'll take it under advisement but let's look for more loopholes in the T&Cs" approach?

There are two stages of FOS - your case will initially be addressed by an adjudicator, who will effectively seek a mutually agreeable resolution, but if that isn't possible then either party can insist on escalation to an actual ombudsman, whose decision is legally binding.

Mark_R said:

3.)  If the FOS disagrees with my complaint is that the end of the road for my S75 claim with the bank?

You'd still have the option of taking them to court, but if you can't persuade FOS of your argument then it's unlikely that you'd convince a court - FOS doesn't just rule on legislation and regulation but also what's considered fair and reasonable, so is an easier threshold to meet.

https://www.financial-ombudsman.org.uk/consumers/how-to-complain