Travel agent has issued us county court case over refunded flights

eskbanker

NJ69x said:

GingerTim said:

Have you sought legal advice?

The only legal advice i've sought is from the forum users here who I have no idea whether they are actual experts on travel law or if it's a case of the blind leading the blind.

Posts from well-meaning but anonymous internet strangers can't be described as legal advice in its true sense, but they're hopefully better informed than the blind leading the blind....

brianposter

I would suggest more detail about the failure to assist you and providing evidence of phone calls or emails.

NJ69x

Hi guys just to update on this, I received a letter back from the courts asking a few questions and to choose which court I want the case heard in. 

The TA has also sent me a copy of the same form they filled out where they are requesting the case be heard in a central London small claims court. We live approx 120 miles away and have requested our local court.

We paid the £70 fee to counter claim for the loss incurred on the return flight. It doesn't look like the TA is going to back down so this will be going to a small claim court at some point soon.

mdann52

Best of luck! Make sure to apply for a default judgement if the TA does not defend the counter claim in time. It doesn't stop the original case from running, but at least means you'll get the judgement for the funds back. I hope you also submitted a defence along with the counter claim?

Just make sure you've fully got your head around their T&Cs, and have a rebuttal to the inevitable argument they will make  about the airline being liable to reschedule flights and not the travel agency.

I'm not aware of any statutes covering this situation, EU261 doesn't apply as it's a non-EU carrier. However, it might also be worth looking at taking the airline to court for the costs of the alternative flights. Ideally they should have been added as a party to this case, and then the airline and TA would be able to argue over who was liable, but that ship has sailed. Gulf Air have a UK address so can be taken to court via MCOL, and worst case, if you win and they don't pay, you send a HCEO to Heathrow to seize a plane!

Personally, I don't see you having any success at court, I think you've recovered funds from the wrong party and the counter claim is unlikely to succeed. If Gulf Air was willing to put in writing that they had refunded the TA, it would be different, but you have no proof the airline have refunded the monies and the TA are in breach of their contract. For the benefit of the forums, is there any chance you can share the claim and counter-claim particulars? I note the post on the previous page, I hope this isn't your defence and counter claim?

For what it's worth, and for future reference, ignoring a Letter Before Action does no favours at court. 

If you lose, you will likely have an order for costs, especially if you lose a counter-claim. In small claims these are usually limited to around £75 + court fees.

NJ69x

Hi the counter claim and defence is exactly the one I have shared on the previous page of this thread.

From reading the TA and airline terms and conditions if they are unable to honour a flight they should refund the customer for any unused portion. They failed to do that which is why we opened a chargeback. The TA is taking us to court claiming the FULL amount, they want all the money paid back not just the outgoing flight. We received a full refund because the TA did not respond to the credit card chargeback. Barclaycard have sent us a letter confirming this is what happened.

They can claim the airline is liable but my parents didn't purchase from the airline their contract of purchase is with the TA and the TA has to bear responsibility when things go wrong. Not just pass the buck and say not our problem.

There's no point taking the airline to court as by your logic their terms and conditions also state they only have to refund the unused portion and they aren't liable for any additional costs incurred flying home. If the counter claim against the TA won't work it wouldn't work against the airline either.

We are just normal folk and this is a crappy situation, we may lose yes but there's no way they should be winning a full refund if they do win the case. At most according to the terms and conditions they can get the outgoing flight costs back, not the refund of the full return flights they are claiming. 

On conclusion of this case I will be naming the travel agent here for you guys to be aware. 

With regards to costs I thought in the smalls claim court it's not possible to claim costs back from the other party?

Westin

“their contract of purchase is with the TA and the TA has to bear responsibility when things go wrong”

Just be sure that this is the case. The ‘agency’ relationship can be cloudy. For a successful claim you need to be claiming against the correct party.

BoGoF

NJ69x said:

With regards to costs I thought in the smalls claim court it's not possible to claim costs back from the other party?

A misconception as some recent posters can attest to.

mdann52

From the T&C's posted earlier, this appears to be TravelTrolley, or at least one of the agencies related to them.

There terms include the following for flight-only bookings:

40.Our responsibility for your booking

Your contract is with the Supplier/Principal and its terms and conditions apply. As agent, we accept no responsibility for the actual provision of the arrangements. Our responsibilities are limited to making the booking in accordance with your instructions.

If I was you, I'd be contacting the agency and seeing if they are willing to settle before the matter goes to court, or at least entertain arbitration.

You are going to get at least a partial judgment against you for the cost of the outbound leg, and I don't see having much luck in court unfortunately. I personally think the counterclaim is unlikely to succeed, unless in your witness statement you can work in why the agency owes you the money.

brianposter

"40.Our responsibility for your booking

Your contract is with the Supplier/Principal and its terms and conditions apply. As agent, we accept no responsibility for the actual provision of the arrangements. Our responsibilities are limited to making the booking in accordance with your instructions."

This is the sort of T&C which makes the TA vulnerable, for they have presumably made the booking in a form that is not consistent with the T&C.

They have acted as if they have no further responsibility after making the booking, but that clearly cannot be the case as any refund has (I presume) to come through the TA.

The TA has in fact failed to make the booking in a manner consistent with its own T&Cs, but then acted as if those T&Cs apply. The TA can then reasonably be held liable for the OPs losses.

At least that is how I might look at matters if I were in the OPs position.

mdann52

brianposter said:

They have acted as if they have no further responsibility after making the booking, but that clearly cannot be the case as any refund has (I presume) to come through the TA.

The TA has in fact failed to make the booking in a manner consistent with its own T&Cs, but then acted as if those T&Cs apply. The TA can then reasonably be held liable for the OPs losses.

The TA has made the booking though, evidenced by the outward ticket being booked and flown. I think arguing a booking has not been made is unlikely to fly.

This is an alteration, and will be at the point where the ticket has likely been taken over by the airline, as evidenced by the outward leg being flown. The TA can forward the alteration request to the airline, however I don't see it can be argued the booking has not been made.