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

tightauldgit

1. It seems slightly confused but I would certainly be pushing back on the idea. I can sort of see how they've squinted and got separate contractual arrangements BUT they only took one payment from one individual didn't they? It would seem at a minimum counterintuitive if not outright unreasonable to say that payment is due 100% from one person but that payment can only be protected to the extent of that one person's individual share of the holiday. Were there children on the booking for example? Would the contract create separate contractual arrangements with minors? Can't see how that would work. 

2. Part of the problem of precedent is establishing that the facts are the same. They do have quite a bit of leeway to interpret things

3. I'd be very surprised if appealling led to a worse outcome for you but it may well mean a significant delay in getting any payment from them. 

Mark_R

tightauldgit said:

1. It seems slightly confused but I would certainly be pushing back on the idea. I can sort of see how they've squinted and got separate contractual arrangements BUT they only took one payment from one individual didn't they? It would seem at a minimum counterintuitive if not outright unreasonable to say that payment is due 100% from one person but that payment can only be protected to the extent of that one person's individual share of the holiday. Were there children on the booking for example? Would the contract create separate contractual arrangements with minors? Can't see how that would work. 

Technically it was two payments (the deposit on my credit card and payment of the flights portion on my wife's debit card), but it was for the single package holiday purchase as a whole.  So my understanding is that under Section 75 rules I have a single debtor-creditor-supplier agreement which the bank is liable for.  I did raise this argument with both the bank and the FOS investigator to no avail.

Yes the booking did include one 16-year-old who I believe would be considered a minor in this case.

eskbanker

Mark_R said:

"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.

Mark_R said:

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."

I think the FOS adjudicator is missing the point - IMHO the fact that each of the travellers is a party to the (single) contract doesn't in any way imply that they hold separate contracts with the supplier!

https://www.financial-ombudsman.org.uk/decision/DRN-4027550.pdf is another FOS case where this point is made, but it is obviously a concern that this adjudicator seems intransigent and unwilling to consider precedents that seem valid, so there may be limited value in citing another one.

For what it's worth, my view is that the problematic clause "The lead name is also responsible for ensuring that all group members are aware they are bound by our terms and conditions" doesn't create any sort of separate contract but is actually reflecting the fact that all travellers are party to the contract, so, for example, need to comply with any contractual term obliging reasonable conduct in resort, rather than actually holding and managing a direct contractual relationship with the supplier as such.

I'm no lawyer but understood that one of the prerequisites of a valid contract is consideration, so if there really were multiple individual contracts, they'd presumably have needed to be paid individually to be legally valid.  Is there anything in the holiday documentation, invoicing, etc, that could support a viewpoint that there were multiple individual contracts?

CKhalvashi

@Mark_R I'll respond to your PM yesterday when I get back to the UK tonight.

Esk has said roughly what the lady I've been working with today has said (and is more qualified than I am to say), but there are some additional points that she has raised also with the additional information you've provided me.

tightauldgit

eskbanker said:

Mark_R said:

"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.

Mark_R said:

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."

I think the FOS adjudicator is missing the point - IMHO the fact that each of the travellers is a party to the (single) contract doesn't in any way imply that they hold separate contracts with the supplier!

https://www.financial-ombudsman.org.uk/decision/DRN-4027550.pdf is another FOS case where this point is made, but it is obviously a concern that this adjudicator seems intransigent and unwilling to consider precedents that seem valid, so there may be limited value in citing another one.

For what it's worth, my view is that the problematic clause "The lead name is also responsible for ensuring that all group members are aware they are bound by our terms and conditions" doesn't create any sort of separate contract but is actually reflecting the fact that all travellers are party to the contract, so, for example, need to comply with any contractual term obliging reasonable conduct in resort, rather than actually holding and managing a direct contractual relationship with the supplier as such.

I'm no lawyer but understood that one of the prerequisites of a valid contract is consideration, so if there really were multiple individual contracts, they'd presumably have needed to be paid individually to be legally valid.  Is there anything in the holiday documentation, invoicing, etc, that could support a viewpoint that there were multiple individual contracts?

That was my immediate thought re: consideration also. I can't see how there are separate contractual agreements formed by saying 'all parties are bound by this contract' and I certainly don't see how you can say there are separate contractual agreements but only one payment (or two in this case) at a very minimum surely the separate contractual arrangements can't apply to the finances?

The thing is you probably would need a solicitor to actually word this objection properly i think and refer to the right parts of law. 

Mark_R

I fully agree with the comments above.  However, playing devil's advocate with the FOS case decision which @eskbanker just provided I can see there are some differences between that case and mine -- I don't know if these could have made a material difference to the Ombudsman's decision in that case:

In that case "Mr. T" (the person making the claim) was named as the Lead Name on the booking and the entire purchase was made on his card, whereas in my case it was my wife who was Lead Name on the booking and it was part funded by me (on my credit card) and part by her (on her debit card).  Also, Tesco had admitted some liability by offering a partial refund to Mr. T whereas my bank has denied liability.

My belief is still that there is a DCS with my bank for the purchase of the holiday booking as a whole... but how to argue the point strongly enough?


On the question from @eskbanker :
"I'm no lawyer but understood that one of the prerequisites of a valid contract is consideration, so if there really were multiple individual contracts, they'd presumably have needed to be paid individually to be legally valid.  Is there anything in the holiday documentation, invoicing, etc, that could support a viewpoint that there were multiple individual contracts?"

We received only three proper documents from the travel agency throughout all of this:
- a Sales Receipt PDF file for the initial deposit - it has no Traveller names and states only "07 adults".
- a Sales Receipt PDF file for the flights portion - it has no Traveller names and states only "6 Adults + 1 Child (16 Yrs)".
- a Final Itinerary PDF file of 19 pages which appears to be the official booking, itinerary detail and T&Cs document.  Aside from listing my wife's name under "Prepared for:", it has no Traveller names and states only "Number of Travellers: 7" in the relevant places.

At some point we did provide the Traveller names to the travel agency as they would have been required for the airline.  I can't recall if they were given during the initial booking process (which was done via an online portal) or provided at some point afterwards, but we have no documentation from them which lists Traveller names aside from an email from the travel agency confirming flight details (seat numbers, etc.) for the original Jun-2020 travel date.

eskbanker

Mark_R said:

However, playing devil's advocate with the FOS case decision which @eskbanker just provided I can see there are some differences between that case and mine

Absolutely - I wasn't suggesting that it was an exact replica but was just citing it specifically because of its examination of the multiple individual contracts argument.  I was just having a quick search of the FOS decisions database on keywords like 'section 75 family booking contracts' or some such, so it might be worth spending some time on there and trawling through some?

On the documentation point, it doesn't sound like there's any significant support there for their contention that there were multiple contracts.

Mark_R

Thanks @eskbanker - your efforts are appreciated, I only pointed it out because I need as much ammunition as I can get for this without an Ombudsman poking holes in any of it. I did find another relevant FOS case decision which I had included with your original one in my argument to the investigator but they were both disregarded because, according to the investigator, "every contract is different ... not being privy to the exact wording of the contracts in those cases makes it difficult to provide direct comparisons."

A new point of argument:
Someone had raised the fact to me that just because T&Cs are included does not mean they are fair, and any unfair or ambiguous terms can be challenged.  I was pointed to the following "Unfair Contract Terms" guidance document from the Competition & Markets Authority and its "Guidance document explained" summary:
https://assets.publishing.service.gov.uk/media/5a7f8b58ed915d74e33f716e/Unfair_Terms_Main_Guidance.pdf
https://assets.publishing.service.gov.uk/media/5a807f4c40f0b62302693daf/Unfair_Terms_Explained.pdf

This guidance states (amongst many other things) that a contract between consumer and trader should be balanced in terms of liability, and any terms within it which would put the consumer at a disadvantage in terms of redress if the contract is broken by the trader can be considered unfair.  Furthermore, any such terms must be stated clearly and unambiguously.

And a new question:

Under Section 75 rules does my bank effectively become the "trader" (i.e., provider of the package holiday purchase) and is bound to the purchase contract exactly as though they are the trader? Or does the fact that it is a Section 75 claim restrict their liability somehow (in terms of responsibility or scope) and therefore offer them leeway?
I ask this question because I feel that if this was a claim against the travel agency themselves they would be both liable and expected to repay the sum we paid them in full, whereas this is an S75 claim by me against my bank and both the bank and the FOS investigator are under the impression that only I as the claimant am in scope and none of the other travellers in the party is entitled to be refunded.

Does anyone have any thoughts on the above question and the new point of argument?
Also, please note that I have only until this Friday 15th December to let the FOS know whether I accept or disagree with the investigator's decision.   

eskbanker

Mark_R said:

A new point of argument:
Someone had raised the fact to me that just because T&Cs are included does not mean they are fair, and any unfair or ambiguous terms can be challenged.  I was pointed to the following "Unfair Contract Terms" guidance document from the Competition & Markets Authority and its "Guidance document explained" summary:
https://assets.publishing.service.gov.uk/media/5a7f8b58ed915d74e33f716e/Unfair_Terms_Main_Guidance.pdf
https://assets.publishing.service.gov.uk/media/5a807f4c40f0b62302693daf/Unfair_Terms_Explained.pdf

This guidance states (amongst many other things) that a contract between consumer and trader should be balanced in terms of liability, and any terms within it which would put the consumer at a disadvantage in terms of redress if the contract is broken by the trader can be considered unfair.  Furthermore, any such terms must be stated clearly and unambiguously.

It's certainly true that the Consumer Rights Act offers some protection if contract terms are deemed to be unfair, but (a) you have to make the case that there's a specific term that fits that description, and (b) you're no longer arguing breach of contract but challenging the legality of the contract in the first place, which is a more complex argument and one that is for a court rather than a s75 claim.  Which term(s) within the contract are you thinking of asserting to be unfair, and on what grounds?

Mark_R said:

And a new question:

Under Section 75 rules does my bank effectively become the "trader" (i.e., provider of the package holiday purchase) and is bound to the purchase contract exactly as though they are the trader? Or does the fact that it is a Section 75 claim restrict their liability somehow (in terms of responsibility or scope) and therefore offer them leeway?
I ask this question because I feel that if this was a claim against the travel agency themselves they would be both liable and expected to repay the sum we paid them in full, whereas this is an S75 claim by me against my bank and both the bank and the FOS investigator are under the impression that only I as the claimant am in scope and none of the other travellers in the party is entitled to be refunded.

Section 75 grants the debtor the same rights against the creditor as they'd have against the supplier:

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.

However, you can't force a bank to interpret the situation in the same way as the supplier, so, when your bank's argument is effectively that the other parties aren't debtors under that agreement, whether or not the travel agency would see things the same way is ultimately irrelevant when it's the bank you're pursuing under s75.

Mark_R

eskbanker said:

It's certainly true that the Consumer Rights Act offers some protection if contract terms are deemed to be unfair, but (a) you have to make the case that there's a specific term that fits that description, and (b) you're no longer arguing breach of contract but challenging the legality of the contract in the first place, which is a more complex argument and one that is for a court rather than a s75 claim.  Which term(s) within the contract are you thinking of asserting to be unfair, and on what grounds?

I think the problem with the FOS investigator's decision is that it isn't saying the contract has been breached, but rather that for my S75 claim the scope of the contract is limited to just me and none of the other travellers because of how one term has been interpreted.

I would try to assert that the term "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" is ambiguous and unclear if its intended meaning is that each member of the travelling party has their own individual contract with the supplier in terms of financial liability -- nobody I have discussed this with (including you and the others in this thread) has interpreted the term to have that meaning. If that intent of the term was made clear it would certainly make someone think twice when booking a group package holiday, and the fact that it is unclear gives the supplier a distinct advantage.

However, you can't force a bank to interpret the situation in the same way as the supplier, so, when your bank's argument is effectively that the other parties aren't debtors under that agreement, whether or not the travel agency would see things the same way is ultimately irrelevant when it's the bank you're pursuing under s75.

Yes I get that, but if the bank effectively becomes the "trader" and therefore the supplier of the holiday which was never provided, they should be liable for the entire contracted purchase. If they are then interpreting an unclear term of the contract to mean that they are only liable for one member of the travelling party rather than for the package as a whole then surely it can be deemed unfair?