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

CKhalvashi

Mark_R said:

@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?

You need to complain to the bank directly, give them all the information here (even link them to this thread if it helps) and the FOS document and give them 8 weeks to decide on the complaint and whether they wish to fight this.

After those 8 weeks (or sooner with a negative response from the bank) you can escalate your complaint directly to the FOS.

Their website gives a good overview of this and it's worth a read before proceeding further. I'd also argue that despite what the bank say, there's no need to take legal advice. This can't be claimed through the FOS in most circumstances as part of the compensation. The FOS website is here. https://www.financial-ombudsman.org.uk/consumers/how-to-complain.

I'm quite busy this weekend and away from Monday, but feel free to post here for any virtual hand holding you need through the process. Many of us here are experienced (but I'm not qualified and not sure of the qualifications of others) with consumer law. My own background is in business.

Mark_R

@tightauldgit , @twopenny , @eskbanker , @lisyloo , @Alan_Bowen , @sheramber , @CKhalvashi ,

Hi all,
Thanks for your patience, I finally got a reply from the bank.

Firstly, this is what I sent to them in my final attempt to argue the two points which they are disputing, based on your helpful advice:

In regard to your statement:

"...the agreement is not in your name this would therefore make you the financing party only."

Please refer to the Financial Ombudsman Decision Reference DRN3871979 which I have attached and for which a link is provided below:

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

This FOS case decision makes it quite clear that, for payment of such types of bookings where only one person can be named as Lead Passenger, by virtue of myself being named on the passenger list there is a valid debtor-creditor-supplier arrangement for the entire payment between myself, the travel agency and the bank.

Can I therefore please remind you of Subsection 1 of the Consumer Credit Act 1974, Section 75, which states:

"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."

In regard to your statement:

"... 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"

The clause in the terms and conditions which you are referring to is "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."  This clause states neither explicitly nor implicitly that each traveller has individual financial liability outside of this contract, nor that there should be any distinction between party members who are immediate family and those who are not.  Furthermore the legislation makes no such distinction.  This is a single contract booking encompassing all passengers in the party and payment has been made on behalf of all passengers who were to get enjoyment from the holiday. The above referenced FOS decision further supports this fact.

Please confirm that you will continue to proceed with this case as requested.

The bank has discounted all of the above and basically restated their previous arguments to claim that they have no liability.
Their final reply is as follows:

Thank you for your email and your comments which have been noted.

We have reviewed the case you refer to however as each case is treated on its own merits and not having the full information other than an extract this cannot be taken as for like for like, therefore this element will now be disregarded.

We have highlighted our main points in our previous email, these now formally are put in place as the reason for rejecting your claim.  I have attached the below for your reference.

I can only advise that you now proceed to contacting the Ombudsman for further guidance, I am sorry that we cannot assist you further. You may take this as our final response.

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.

So, I assume my next action is to file a complaint with the Ombudsman.
Based on what the bank has stated in bold above, would I still need to raise a formal complaint to them and wait up to 8 weeks or is this sufficient grounds for me to now go straight to the FOS?
Never having raised a complaint to the FOS I would also appreciate any advice on how much or little evidence needs to be provided and in what structure/format -- I want to be sure to include everything required but don't want to make it difficult for the FOS to wade through!

eskbanker

Mark_R said:

I can only advise that you now proceed to contacting the Ombudsman for further guidance, I am sorry that we cannot assist you further. You may take this as our final response.

[...]

So, I assume my next action is to file a complaint with the Ombudsman.
Based on what the bank has stated in bold above, would I still need to raise a formal complaint to them and wait up to 8 weeks or is this sufficient grounds for me to now go straight to the FOS?

My interpretation of the bank's reference to 'final response' and directing you to FOS is that you don't need to go through a separate complaints process and can proceed directly to FOS.

Mark_R said:

Never having raised a complaint to the FOS I would also appreciate any advice on how much or little evidence needs to be provided and in what structure/format -- I want to be sure to include everything required but don't want to make it difficult for the FOS to wade through!

The online submission process is fairly straightforward to follow - you have the opportunity to attach files to augment your explanation, but the key documentation is the claim you made and then the subsequent correspondence with the bank, up to and including their final response.  The basis of the FOS process is to review how the bank has dealt with your complaint, rather than you complaining to FOS about the bank, so you should be providing FOS with everything you supplied to the bank - it's not a one-off submission though, so if they need more then they can ask you for it.

Mark_R

eskbanker said:

The online submission process is fairly straightforward to follow - you have the opportunity to attach files to augment your explanation, but the key documentation is the claim you made and then the subsequent correspondence with the bank, up to and including their final response.  The basis of the FOS process is to review how the bank has dealt with your complaint, rather than you complaining to FOS about the bank, so you should be providing FOS with everything you supplied to the bank - it's not a one-off submission though, so if they need more then they can ask you for it.

Sorry for the delayed reply, and thank you for this info, very helpful.  I wasn't sure whether every detail needed to be provided up front so this is good to know.

Is it also worth adding a link to this forum discussion in my submission to the FOS or would that be viewed by them as more subjective rather than sticking to the immediate facts?

TELLIT01

Comments and advice on this forum have no legal weight so it would be pointless, in my opinion, to include them in any communication with the FOS.  They are really no more valid that the conversation with the bloke down the pub who "knows about these things".

Mark_R

TELLIT01 said:

Comments and advice on this forum have no legal weight so it would be pointless, in my opinion, to include them in any communication with the FOS.  They are really no more valid that the conversation with the bloke down the pub who "knows about these things".

Very true, though my understanding is that the FOS bases their decision not only on what is legal but also what is just and fair -- this forum seems to garner very wise, knowledgeable and unbiased opinions on the latter.  Just a thought!

CKhalvashi

TELLIT01 said:

Comments and advice on this forum have no legal weight so it would be pointless, in my opinion, to include them in any communication with the FOS.  They are really no more valid that the conversation with the bloke down the pub who "knows about these things".

Sorry for the delay, I've been very ill (and am still not 100%).

I would consider raising some of the points, OP is welcome to use any of my postings here in their argument, editing as necessary and explaining the logic behind the thinking.

Linking to the thread may make it easier, however I wouldn't say it's necessary if OP feels they can confidently deal with the points raised.

I'm not a lawyer, I don't know the background of anyone else here.

Mark_R

@tightauldgit , @twopenny , @eskbanker , @lisyloo , @Alan_Bowen , @sheramber , @CKhalvashi ,

Hi all,
Thanks again for your patience with this.

I finally received a decision from the initial investigator for my FOS case.  I'm surprised by the outcome and would appreciate your feedback and advice.

The investigator has decided that the bank should pay me back, however their interpretation is that each of the travellers on this holiday has their own individual contract and thus the bank is only liable to reimburse my portion of the holiday, which is one seventh of the total amount that we paid.  This is despite the fact that it was bought as a family package holiday and in my opinion a single purchase transaction.

Below in italics is the excerpt from the holiday package T&Cs which the investigator is referring to (I have highlighted in bold the one sentence which I think is relevant to this decision) and the FOS investigator's comments regarding his decision -- I have redacted the names of the bank and myself:

"The lead name on any booking with us except the full responsibility of collecting the full

balance payable for the booking and indemnifies Viani London against any loss from any

individual failing to pay within your group. The lead name 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 lists on behalf of all persons

on the booking. It is understood that those booking via e-mail or telephone agree to and

accept our terms and conditions."

This is also the exact excerpt <the bank> referred to within its Section 75 outcome letter. And the

final response letter it issued maintaining its position after <myself> complained about the

outcome.

In my opinion, this excerpt of the Terms and Conditions says all seven travellers have a

contract with Viani London individually. So, although <myself> is not the lead traveller, he

still does have a contract. As do all the other travellers individually.

On the basis <myself> still has a contract with Viani London, he should have the right to

make a claim against Viani London for his own portion of the holiday.

As Section 75 allows consumers to hold their creditor jointly and severally liable, he should

also be able to make a like claim against <the bank>.

But on this basis, I also agree with <the bank's> view it is not responsible for the other members

of the travelling group, as they have their own individual contracts.


So, my questions are:

1.) I get that each member of the travelling party is bound by the T&Cs of the contract, but my interpretation of the sentence in bold is that it does not state explicitly nor even imply that each traveller has their own individual contract in terms of financial liability.  Is this your belief too?  Do you know if there are any legal references, precedences or any other helpful citations I could refer to?

2.) I cited the example FOS case decision that @eskbanker had provided, and another one I had found, both of which supported the fact that a traveller who was not the Lead Traveller had paid towards the holiday and was still entitled to compensation. No mention had been made in either case of this being for only that single traveller's portion.  Are there often inconsistencies like this across FOS case decisions?

3.) If I decide to not accept the initial investigator's decision then I believe the case will be picked up by an Ombudsman and they will do their own investigation and make a final decision.  What is the likelihood the Ombudsman would decide that I am not entitled to any compensation at all?  I would risk taking it to the Ombudsman if there was a very good chance that they would decide on either the same or more compensation.

As always, your views and advice are very appreciated!

CKhalvashi

On point 1, I agree with your interpretation.

If you're comfortable sending me the relevant page from the booking by PM (you can blank any personal details), I am happy to give an opinion on this.

Point 2, there can be different opinions given on the same case. This is a much more informal process than a court.

On point 3, I doubt it'll be found nothing will be owed, it's quite rare (but not unheard of) for the starting point to remain at the adjudicators point unless you are extremely unreasonable in any arguments.

I do agree that this needs to be treaded carefully, hence I'm asking now for anonymised copies of documents.

Mark_R

I asked the FOS investigator for some further clarification on a few points so I could better understand the reasoning behind their decision, and these are the details of my questions and their responses:

1.)  Regarding the clause: “The lead name is also responsible for ensuring that all group members are aware they are bound by our terms and conditions.” What was your basis for interpreting this to mean that each group member has their own individual contract in terms of financial liability? Is this purely your interpretation or is there a legal definition for this? If the latter, can you please provide any references to a legal definition or precedence which you would have used?
Their response:
"Here at the service, we consider law and regulations, but also, we consider what we believe to be fair and reasonable. So, I’ve considered how I think a reasonable person would interpret the wording of the contract.

The section that mentions <my wife as Lead Traveller> is responsible for ensuring all members are aware they are bound by these terms and conditions says to me their contract is separate from hers. <My wife> was the one who signed the contract as the lead traveller. She accepted the responsibility of making the others aware they also have contractual obligations – separate to her own.

I think it would be hard to argue that any member of your travelling party would have had no contractual obligations based on the wording of this contract. So, by reversing that logic, I also think it's fair and reasonable to assume being "bound by our terms and conditions" means there is a contractual relationship between all group members and the supplier.

Due to the fact you paid with your credit card, you benefitted from the trip, and because the contract says you are bound by the terms and conditions, I think it was unreasonable of <the bank> to have suggested the "debtor" element of the debtor-creditor-supplier agreement is broken."

2.)  I cited two similar example FOS case decisions where in each case a holiday was paid for by a traveller who was not the Lead Traveller and it was decided that compensation for the entire holiday purchase (not just their individual portion) was relevant. Can you please explain what was different to those cases compared to mine?

Their response:

I did read and consider the decisions you cited as part of my investigation. The difficulty I have in answering you directly is that every contract is different. The wording of the contract you have with the supplier makes every bit of difference to the outcome, and the relationship between the relevant parties.

Not being privy to the exact wording of the contracts in the cases you refer to makes it difficult to provide direct comparisons. Although I’m confident the relevant Ombudsmen would’ve thoroughly scoured the wording of those contracts before writing their decisions.

I'm still puzzled about their interpretation of the T&Cs clause in #1 above, as everyone I have spoken to about this and had advice from (including yourselves on this forum) has had the opposite interpretation -- that it was a single purchase transaction of the entire package holiday and there is no implication of each traveller having an individual contract in terms of financial liability.  And surely the bank's liability (shared with the travel agency) due to Section 75 is on the entire purchase transaction rather than individual contractual agreements of the travellers, especially if looked at in terms of "fair and reasonable"?