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

eskbanker

Mark_R said:

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.

To me the issue is clearly with the FOS adjudicator's interpretation (aligned with the bank's), that doesn't appear to be supported by the contract's terms, rather than those terms themselves being inherently unfair, so personally I wouldn't see any value in trying to assert that the quoted term is unfair as such in the context of CRA's unfair terms provisions.

Mark_R said:

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?

As above really - I disagree with the bank's interpretation that multiple individual contracts have been formed, but to me that's simply a case of flawed interpretation rather than an unfair term as such, i.e. the problem is the bank (and FOS) not the contract.  The bank doesn't 'become' the trader but if the correct legal interpretation of the clause is that all travellers are party to one contract then theoretically this position applies equally both the supplier and the creditor under s75.


The more I think about it, the more self-contradictory the bank/FOS position is - if "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" genuinely signified that each group member had their own contract with the supplier then there'd be no need for the lead passenger to fulfil any such coordinating role, as there'd be a direct contractual relationship between the supplier and each traveller individually, to which the lead passenger wouldn't even be a party!

Mark_R

eskbanker said:
The more I think about it, the more self-contradictory the bank/FOS position is - if "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" genuinely signified that each group member had their own contract with the supplier then there'd be no need for the lead passenger to fulfil any such coordinating role, as there'd be a direct contractual relationship between the supplier and each traveller individually, to which the lead passenger wouldn't even be a party!

A very good point.  Also the fact that no individual traveller names (rather just the number of travellers) are listed anywhere on the main document or receipts suggests that individual contracts are very unlikely.

The point I'm trying to make about the unfairness of the term is that it is very ambiguous and open to widely different interpretations which have an obvious impact on the contractual liability. The CMA Guidance states that any such important terms, especially those which may put the consumer at a disadvantage, should be explained clearly and without ambiguity so that their intent is clearly understood.

eskbanker

Mark_R said:
The point I'm trying to make about the unfairness of the term is that it is very ambiguous and open to widely different interpretations which have an obvious impact on the contractual liability. The CMA Guidance states that any such important terms, especially those which may put the consumer at a disadvantage, should be explained clearly and without ambiguity so that their intent is clearly understood.

I disagree about the significance of the unfair terms angle and don't see it as relevant - I don't think that the supplier intended to gain any advantage by including that wording and still see it solely as clarifying that the lead passenger is the sole point of contact between the supplier and the other passengers, on whose behalf s/he's deemed to be acting.

The fact that another party, or two (bank and FOS), have chosen to interpret it in a frankly untenable way IMHO doesn't signify any unfairness on the part of the supplier who prepared the contract.

I know that citing other contracts muddies the water as far as FOS is concerned, but see the contentious clause as essentially covering the same standard ground as the major players do in their contracts, for example TUI:

When you book your holiday you are accepting Our Agreement on behalf of everyone travelling with you. We will only deal with you, the lead name, and you must be an adult when you book.

and Jet2:

When a booking is made with us, the person who signs the booking form or completes the booking online or by telephone is confirming that they are over 18, have the authority to appoint the “lead name” on the booking (the person who makes the booking will be asked to choose a lead name for the booking) and accept these terms and conditions. The lead name must be 18 or over to make a booking with us and has to travel with us if all other customers on the booking are under 18. The lead name is responsible for payment of the total booking price, including any insurance premiums and subsequent cancellation or amendment charges that may be payable. The lead name also agrees to provide accurate and full information to the remainder of the travelling party in relation to the booking, including any changes to the booking. The lead name also confirms that all the other members of the party, including any that may be added at a later date, agree to be bound by these conditions and all other information on our websites or in our brochure (as applicable).

Mark_R

eskbanker said:

The fact that another party, or two (bank and FOS), have chosen to interpret it in a frankly untenable way IMHO doesn't signify any unfairness on the part of the supplier who prepared the contract.

Yes this is true, but for the sake of the S75 claim isn't it now effectively the bank's contract with me in terms of liability, in which case I can argue the fact that the term is open to misinterpretation and puts the bank at an advantage over me, the consumer?
If the bank and the investigator are interpreting it one way and literally everyone else is interpreting it another way then it is too unclear, especially given its importance.  And if it was worded more clearly to start with then it would have affected our decision to purchase in the first place.

I know that citing other contracts muddies the water as far as FOS is concerned, but see the contentious clause as essentially covering the same standard ground as the major players do in their contracts, for example TUI:

A good point and I thought about this too, as somewhere in the the CMA Guidance it was mentioned that a consumer expects a "standard" contract and any terms considered "non-standard" should be clearly worded and made obvious.
But how to present this argument without the Ombudsman just dismissing it as not being relevant to this case, or stating that all purchases from the major players would also be interpreted as having individual traveller contracts?

eskbanker

Mark_R said:

eskbanker said:

The fact that another party, or two (bank and FOS), have chosen to interpret it in a frankly untenable way IMHO doesn't signify any unfairness on the part of the supplier who prepared the contract.

Yes this is true, but for the sake of the S75 claim isn't it now effectively the bank's contract with me in terms of liability, in which case I can argue the fact that the term is open to misinterpretation and puts the bank at an advantage over me, the consumer?
If the bank and the investigator are interpreting it one way and literally everyone else is interpreting it another way then it is too unclear, especially given its importance.  And if it was worded more clearly to start with then it would have affected our decision to purchase in the first place.

No, it isn't effectively the bank's contract - under section 75, your claim against the supplier for breach of contract can also be raised against the creditor, but this doesn't make the bank a party to the contract itself as such, so I don't see it as valid to assert that, as muddying the water potentially weakens your case rather than strengthening it.

Mark_R said:

I know that citing other contracts muddies the water as far as FOS is concerned, but see the contentious clause as essentially covering the same standard ground as the major players do in their contracts, for example TUI:

A good point and I thought about this too, as somewhere in the the CMA Guidance it was mentioned that a consumer expects a "standard" contract and any terms considered "non-standard" should be clearly worded and made obvious.
But how to present this argument without the Ombudsman just dismissing it as not being relevant to this case, or stating that all purchases from the major players would also be interpreted as having individual traveller contracts?

I don't think it's really a 'standard contract' issue in the sense intended by the CMA, but is potentially useful in conveying the generally accepted role of the lead passenger in the industry.

However, I'd be inclined to major on the fact that, logically, the contentious clause doesn't imply what the bank and FOS suggest it does, so would continue to dispute the conclusion that multiple separate contracts were in play, especially when that conclusion would be self-contradictory, as discussed earlier.

It seems that interpretation of your contract is the crux of this, so other contracts and previous FOS cases are unlikely to hold much sway if the FOS adjudicator isn't persuaded by their relevance on the basis of different Ts & Cs.

Mark_R

eskbanker said:

However, I'd be inclined to major on the fact that, logically, the contentious clause doesn't imply what the bank and FOS suggest it does, so would continue to dispute the conclusion that multiple separate contracts were in play, especially when that conclusion would be self-contradictory, as discussed earlier.

It seems that interpretation of your contract is the crux of this, so other contracts and previous FOS cases are unlikely to hold much sway if the FOS adjudicator isn't persuaded by their relevance on the basis of different Ts & Cs.

Yes I like that and I does seem like my focus should be on the interpretation of that term in the contract.

Rather than cite specific FOS cases I suppose it could help to strengthen my argument if I give examples of the similar clauses in the T&Cs from the major players as you showed, and point out the fact that there are dozens of FOS case decisions for purchases of group holidays (with the assumption that many of these would have been purchased through the major players) where the interpretation of individual contracts was never made and, in fact, I have not yet found a single case where this interpretation was made. Surely this would point to the idea of this "standard" term not having the meaning that the investigator had interpreted?

On your earlier point:
"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."

I'm not familiar with the term consideration in this context, can you please explain it in layman's terms and how it would relate to helping my claim?

eskbanker

Mark_R said:

On your earlier point:
"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."

I'm not familiar with the term consideration in this context, can you please explain it in layman's terms and how it would relate to helping my claim?

As I say, I'm not a lawyer, but my understanding is that in a valid contract each party has to be providing something of value to the other, so in this context that would be the supplier providing a holiday and the customer providing financial payment.  If it was asserted that there were multiple separate contracts involving each of the travellers, how was each contract valued and, more to the point, paid (I think you said that there was no itemisation of value per individual)?

What is Consideration?

Put simply, consideration is something that has value in the eyes of the law. It is an essential element of forming a valid contract. In practice, this means there must be an exchange of things that have value for a legally binding contract. It is one aspect of the contract forming process and is necessary for every new contract to be enforceable in law.

What is Consideration in Contract Law? | LegalVision UK

However, this would really be a bit of a technicality as a side issue and I wouldn't suggest using this line of argument without qualified legal advice, as it may be counterproductive!  It might be worth posting the whole situation on a legal forum such as Legal Beagles?

Mark_R

eskbanker said:

However, this would really be a bit of a technicality as a side issue and I wouldn't suggest using this line of argument without qualified legal advice, as it may be counterproductive!  It might be worth posting the whole situation on a legal forum such as Legal Beagles?

Yes I did that last week actually!  It has not been very beneficial yet -- I was given the idea of the T&C wording being deemed "unfair", and that the bank is limiting its liability and S75 should be researched further, but not much that will actually help my arguments.  Link is here:
https://legalbeagles.info/forums/forum/legal-forums/consumer-and-civil-rights/1661999-fos-case-contract-interpretation-in-section-75-refund-claim-for-cancelled-holiday

Mark_R

Hi all,
I just want to thank you again for all of your continued help.  I have tried to get the wording of my arguments (based a lot on your wording) as succinct and convincing as possible but covering everything I want to convey.  Here is what I would like to present to the FOS investigator as my final attempt before it is passed on to the Ombudsman - I appreciate that some of you (especially @eskbanker ) have said that covering too much ground might muddy the waters and be counter-productive but I think all of the below points are valid and important and work together.
Any final thoughts or advice appreciated!!

The point of contention is your interpretation of the contract 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" meaning that each traveller in the party has their own individual contract with the supplier in terms of financial liability.

Further to my previous arguments on this issue I would also like to add the following points, which I believe constitute not only valid legal arguments but also what is considered fair and reasonable:

1. The fact that each traveller is party to the single booking contract in no way implies that each member holds a distinct and separate financial contract with the supplier.  It is understandable that all party members must adhere to contractual terms obliging reasonable conduct on the holiday, etc., which is what this term ensures. But it does not state nor imply that each traveller has their own direct and individual contractual relationship with the supplier.  Payment to the supplier was made as a single purchase transaction for the package holiday and not individually by each traveller and, conversely, any refunds by the supplier would expect to be paid back to the purchaser's payment method (i.e., my <bank's> credit card) as a whole and not individually to each traveller.

2. "Consideration" in contract law is a key ingredient for an enforceable contract. It is concerned with what one party is giving or promises in exchange for what the other party is giving or exchanging. In terms of the package holiday purchase, the funds were paid with my <bank's> credit card ("what I am giving") for the purchase of a package holiday ("what the supplier is giving"). This forms a single financial contract and single debtor-creditor-supplier agreement for the package holiday as a whole, which is being disputed. There were no individual itemisations of value by traveller on the booking payment receipts nor in the main booking Itinerary document.

3. The contract term in contention can be considered an "industry standard" contract term as it is found in the package holiday T&Cs of most if not all of the major package holiday providers -- please see the examples below (online links to each of these can be provided if required).  With this in mind, there are dozens of example case decisions in the FOS decision database for group holiday refund claims where an interpretation of individual contractual liability per traveller is not made, and I have yet to find even one example where this interpretation is made.

I appreciate that FOS cases are handled on their individual circumstances but it reasonable to assume that many of these cases would have been based on T&Cs which included this standard term.

As a starting point can I refer you to the three case decision references which have already been provided in my claim: DRN-387197, DRN-3978278, DRN-4027550.

Jet2: "The lead name also confirms that all the other members of the party, including any that may be added at a later date, agree to be bound by these conditions and all other information on our websites or in our brochure (as applicable)."

TUI: "When you book your holiday you are accepting Our Agreement on behalf of everyone travelling with you. We will only deal with you, the lead name, and you must be an adult when you book. Anyone aged under 18 on your holiday must be accompanied by an adult."

Loveholidays: "you have read all the terms and conditions set out on this webpage and agree (on behalf of yourself and all other persons named on the booking) to be bound by them and any applicable Service Provider's booking conditions and website terms of use;"

Thomas Cook: "you have read all the terms and conditions set out on this website and agree (on behalf of yourself and all other persons named on the booking) to be bound by them and any applicable booking conditions of the Supplier;"

On the Beach: "By making a booking, the first named person on the booking agrees on behalf of all persons detailed on the booking that he/she: has read these Booking Conditions and has the authority to and does agree to be bound by them;"