Non refundable hotel booking - what are my ACTUAL rights?

Grumpy_chap

the_lunatic_is_in_my_head said:

If the “non-refundable” aspect also relates to the core subject matter why does the CAA talk of airlines refunding customers for things like airport taxes (which the airline won’t pay if the customer cancels)? 

AIUI, APD is a tax levied on the passenger who flies.  The airline is merely the collection agent on behalf of the Government.  If the passenger does not fly, the APD is not levied by the Government and, therefore, the airline cannot collect it and pass it on.

That does seem to make APD different from, say, the costs of food that may be included in the rate for a flight or a hotel booking but not incurred by the operator if the customer fails to turn up.

the_lunatic_is_in_my_head

MobileSaver said:

the_lunatic_is_in_my_head said:

MobileSaver said:

the_lunatic_is_in_my_head said:

MobileSaver said: Secondly the legislation explicitly states "may be regarded as unfair" not "is an unfair term".

Which is why we look to the guidance on what maybe unfair, in it's opinion.

We do and that is why I still think you are wrong regarding this for two different reasons...

Fundamentally the guidance says the test of fairness is only against the standard terms (i.e. the "small print" as it's commonly known), core terms that set the price and subject matter (e.g. Double Room Non Refundable £150 vs Double Room Fully Refundable £250) are exempt.

Furthermore the guidance states that a consumer/supplier rights imbalance in itself is not an unfair term; to be unfair it must also be "contrary to the requirements of good faith".

It then defines "good faith" as expressing fully, clearly and legibly the terms and conditions and that the supplier is "not to take advantage of consumers' weaker bargaining position, or lack of experience". For me, offering the OP the choice of the same room with £100 difference for non-refundable versus fully-refundable easily passes the good faith test and hence again the term is not unfair even if your take on how rooms are priced was accepted.

I disagree the term relates directly to the price, it relates to termination without any justification for doing so. 

You are correct about the core subject matter which I understood to mean the thing being purchased (in this kind of scenario), I.e the hotel room.

Clause 19.12 of the Unfair contract terms guidance clearly explains what Core Terms are: "Terms which define what is being purchased under the contract, or set the price to be paid, are exempt from the test of fairness to the extent that the consumer is able to read and understand them".

The OP knew in advance that they could buy the same room at different prices either with or without a refund option and so the "non-refundable" part was obviously a Core Term and therefore "fairness" is a non-issue anyway.

To answer the OP's question, their actual consumer rights were to stay in the room on the night they paid for or cancel the stay and lose the full amount that they paid.

I am confident that going to court would be an expensive way to confirm this and is why there is little or no case law which supports your viewpoint.

For the avoidance of doubt, I am sure that there will be a tiny number of shady hoteliers who hide the fact that the booking is non-refundable, in which case your approach could work from a legal viewpoint, but the OP booked through a legit site that made it abundantly clear what they were signing up to.

the_lunatic_is_in_my_head said:

If the “non-refundable” aspect also relates to the core subject matter why does the CAA talk of airlines refunding customers for things like airport taxes (which the airline won’t pay if the customer cancels)? 

Who knows? Perhaps all airlines/intermediaries don't make taxes as clear a core term of the booking? Irrelevant to the OP though as they didn't book a flight.

Like I say the term is triggered on termination, I don't believe it relates to either the price or the core subject matter.

Open letter here from the CMA back in 2016:

https://assets.publishing.service.gov.uk/media/5f3265148fa8f57ac14f69dc/Cancellation_advisory_letter_16.pdf

The CMA and the CPP consider that terms regarding advance payments and

cancellation charges are less likely to be fair where:

Deposits are non-refundable when the amount is more than that required by the

business to represent the consumer’s payment to reserve the services.

Advance payments are more than that required by the business to cover its

actual costs.

Non-refundable advance payments and cancellation charges are calculated

to cover all of the business’ costs and loss of profit.

Sliding scales of cancellation charges allow the business to recover more from

the consumer than the losses it is likely to suffer if the consumer cancels.

If, on cancellation by consumers, the amount kept or charged by the business is too

much, or consumers have to pay a fixed amount in all circumstances, the business

may be receiving double compensation, and consumers may be paying a

disproportionate financial sanction.

If the core/price exemption applied all this guidance on retaining advance payments wouldn't exist. 

Grumpy_chap said:

AIUI, APD is a tax levied on the passenger who flies.  The airline is merely the collection agent on behalf of the Government.  If the passenger does not fly, the APD is not levied by the Government and, therefore, the airline cannot collect it and pass it on.

That does seem to make APD different from, say, the costs of food that may be included in the rate for a flight or a hotel booking but not incurred by the operator if the customer fails to turn up.

It mentions other things like charges imposed by the airport  

MobileSaver

the_lunatic_is_in_my_head said:

MobileSaver said:

the_lunatic_is_in_my_head said:

MobileSaver said:

the_lunatic_is_in_my_head said:

MobileSaver said: Secondly the legislation explicitly states "may be regarded as unfair" not "is an unfair term".

Which is why we look to the guidance on what maybe unfair, in it's opinion.

We do and that is why I still think you are wrong regarding this for two different reasons...

Fundamentally the guidance says the test of fairness is only against the standard terms (i.e. the "small print" as it's commonly known), core terms that set the price and subject matter (e.g. Double Room Non Refundable £150 vs Double Room Fully Refundable £250) are exempt.

Furthermore the guidance states that a consumer/supplier rights imbalance in itself is not an unfair term; to be unfair it must also be "contrary to the requirements of good faith".

It then defines "good faith" as expressing fully, clearly and legibly the terms and conditions and that the supplier is "not to take advantage of consumers' weaker bargaining position, or lack of experience". For me, offering the OP the choice of the same room with £100 difference for non-refundable versus fully-refundable easily passes the good faith test and hence again the term is not unfair even if your take on how rooms are priced was accepted.

I disagree the term relates directly to the price, it relates to termination without any justification for doing so. 

You are correct about the core subject matter which I understood to mean the thing being purchased (in this kind of scenario), I.e the hotel room.

Clause 19.12 of the Unfair contract terms guidance clearly explains what Core Terms are: "Terms which define what is being purchased under the contract, or set the price to be paid, are exempt from the test of fairness to the extent that the consumer is able to read and understand them".

The OP knew in advance that they could buy the same room at different prices either with or without a refund option and so the "non-refundable" part was obviously a Core Term and therefore "fairness" is a non-issue anyway.

To answer the OP's question, their actual consumer rights were to stay in the room on the night they paid for or cancel the stay and lose the full amount that they paid.

I am confident that going to court would be an expensive way to confirm this and is why there is little or no case law which supports your viewpoint.

For the avoidance of doubt, I am sure that there will be a tiny number of shady hoteliers who hide the fact that the booking is non-refundable, in which case your approach could work from a legal viewpoint, but the OP booked through a legit site that made it abundantly clear what they were signing up to.

Like I say the term is triggered on termination, I don't believe it relates to either the price or the core subject matter.

We can't say definitively as we don't know exactly which site the OP booked on but if it is similar to say Booking.com then it's irrefutable that it's a core term of the contract. The refundable/non-refundable option is literally the only difference between two differently priced booking options and so must be a core term, how else can you distinguish between two otherwise identical products?

Regardless, even if you don't accept that it is a core term, the OP was fully aware they were booking a non-refundable room and so it fails the "contrary to good faith" test and so still isn't an unfair term under the legislation.

The bottom line is the OP knew what what they were buying and has no legal rights to a refund if they cancel.

the_lunatic_is_in_my_head said:

The CMA and the CPP consider that terms regarding advance payments and

cancellation charges are less likely to be fair where:

Note it says "less likely to be fair" and does not say "will be deemed unfair" and this is clearly one of the situations where it would frankly be perverse for the law to deem it to be unfair if a customer knowingly and willingly chooses a cheaper non-refundable option then asks for a refund and is refused.

 

born_again

MobileSaver said:

the_lunatic_is_in_my_head said:

MobileSaver said:

the_lunatic_is_in_my_head said:

MobileSaver said:

the_lunatic_is_in_my_head said:

MobileSaver said: Secondly the legislation explicitly states "may be regarded as unfair" not "is an unfair term".

Which is why we look to the guidance on what maybe unfair, in it's opinion.

We do and that is why I still think you are wrong regarding this for two different reasons...

Fundamentally the guidance says the test of fairness is only against the standard terms (i.e. the "small print" as it's commonly known), core terms that set the price and subject matter (e.g. Double Room Non Refundable £150 vs Double Room Fully Refundable £250) are exempt.

Furthermore the guidance states that a consumer/supplier rights imbalance in itself is not an unfair term; to be unfair it must also be "contrary to the requirements of good faith".

It then defines "good faith" as expressing fully, clearly and legibly the terms and conditions and that the supplier is "not to take advantage of consumers' weaker bargaining position, or lack of experience". For me, offering the OP the choice of the same room with £100 difference for non-refundable versus fully-refundable easily passes the good faith test and hence again the term is not unfair even if your take on how rooms are priced was accepted.

I disagree the term relates directly to the price, it relates to termination without any justification for doing so. 

You are correct about the core subject matter which I understood to mean the thing being purchased (in this kind of scenario), I.e the hotel room.

Clause 19.12 of the Unfair contract terms guidance clearly explains what Core Terms are: "Terms which define what is being purchased under the contract, or set the price to be paid, are exempt from the test of fairness to the extent that the consumer is able to read and understand them".

The OP knew in advance that they could buy the same room at different prices either with or without a refund option and so the "non-refundable" part was obviously a Core Term and therefore "fairness" is a non-issue anyway.

To answer the OP's question, their actual consumer rights were to stay in the room on the night they paid for or cancel the stay and lose the full amount that they paid.

I am confident that going to court would be an expensive way to confirm this and is why there is little or no case law which supports your viewpoint.

For the avoidance of doubt, I am sure that there will be a tiny number of shady hoteliers who hide the fact that the booking is non-refundable, in which case your approach could work from a legal viewpoint, but the OP booked through a legit site that made it abundantly clear what they were signing up to.

Like I say the term is triggered on termination, I don't believe it relates to either the price or the core subject matter.

We can't say definitively as we don't know exactly which site the OP booked on but if it is similar to say Booking.com then it's irrefutable that it's a core term of the contract. The refundable/non-refundable option is literally the only difference between two differently priced booking options and so must be a core term, how else can you distinguish between two otherwise identical products?

Regardless, even if you don't accept that it is a core term, the OP was fully aware they were booking a non-refundable room and so it fails the "contrary to good faith" test and so still isn't an unfair term under the legislation.

The bottom line is the OP knew what what they were buying and has no legal rights to a refund if they cancel.

the_lunatic_is_in_my_head said:

The CMA and the CPP consider that terms regarding advance payments and

cancellation charges are less likely to be fair where:

Note it says "less likely to be fair" and does not say "will be deemed unfair" and this is clearly one of the situations where it would frankly be perverse for the law to deem it to be unfair if a customer knowingly and willingly chooses a cheaper non-refundable option then asks for a refund and is refused.

 

You have to be careful with Booking.com as they run their own cancelation service. Which in some cases is not what is stated in Hotels T/C.
Which if hotel takes funds, means a fight with Booking.com to get the money back...

the_lunatic_is_in_my_head

MobileSaver said:

Regardless, even if you don't accept that it is a core term, the OP was fully aware they were booking a non-refundable room and so it fails the "contrary to good faith" test and so still isn't an unfair term under the legislation.

The CAA doc talks of good faith with regards to transparency noting

Openness is not enough on its own. In the CMA’s view, businesses must also deal fairly with consumers and must not take advantage of them. The Court of Justice of the European Union (CJEU) has also considered the meaning of ‘good faith’ and said that it should be considered broadly and that courts should consider whether the consumer would have accepted the term if the contract had been agreed on in individual contract negotiations with the consumer. The CMA considers that the CJEU’s ruling means that, in formulating their contract terms, businesses should actively take into account the legitimate interests of the consumer.

Good faith also requires balance, i.e offering the same should the trader be the one unable/unwilling to fulfil the contract.

MobileSaver

the_lunatic_is_in_my_head said:

MobileSaver said:

Regardless, even if you don't accept that it is a core term, the OP was fully aware they were booking a non-refundable room and so it fails the "contrary to good faith" test and so still isn't an unfair term under the legislation.

whether the consumer would have accepted the term if the contract had been agreed on in individual contract negotiations with the consumer.

Which in the case of @jax1701 is, in essence, exactly what they did do! The OP had a choice of the same room at say £250 that was fully-refundable or the same room at £150 but non-refundable; the OP negotiated/chose the cheaper room knowing full well they could not have a refund if they didn't turn up.

the_lunatic_is_in_my_head said:

Good faith also requires balance,

I believe you are mistaken; according to the OFT, good faith means transparency and "not to take advantage of consumers' weaker bargaining position, or lack of experience, in deciding what their rights and obligations shall be". Offering the consumer a choice of refundable/non-refundable bookings clearly satisfies the good faith test and so everything else is moot, it can't be an unfair term and needn't be balanced.

And as already pointed out, this whole conversation is pointless anyway as "unfair terms/good faith/imbalance" only apply to "the small print" and the OP has admitted they knew they selected non-refundable so it was presumably prominently displayed at the point of entering the contract.

the_lunatic_is_in_my_head

MobileSaver said:

Which in the case of @jax1701 is, in essence, exactly what they did do! The OP had a choice of the same room at say £250 that was fully-refundable or the same room at £150 but non-refundable; 

That’s just “here are 2 options, pick one” that isn’t a negotiation! 

MobileSaver said:.

And as already pointed out, this whole conversation is pointless anyway as "unfair terms/good faith/imbalance" only apply to "the small print" and the OP has admitted they knew they selected non-refundable so it was presumably prominently displayed at the point of entering the contract.

The CAA paper makes mention to the Parking Eye case, the pay £80 if you stay longer than x hours isn’t in the small print but was still tested for fairness. 

MobileSaver said:

the_lunatic_is_in_my_head said:

Good faith also requires balance,

I believe you are mistaken; 

Yes you are correct, I am mistaken on that point  

MobileSaver

the_lunatic_is_in_my_head said:

MobileSaver said:.

And as already pointed out, this whole conversation is pointless anyway as "unfair terms/good faith/imbalance" only apply to "the small print" and the OP has admitted they knew they selected non-refundable so it was presumably prominently displayed at the point of entering the contract.

The CAA paper makes mention to the Parking Eye case, the pay £80 if you stay longer than x hours isn’t in the small print but was still tested for fairness. 

This is starting to turn into a whataboutism and while no expert on the Parking Eye case I am pretty sure it was also found NOT to be an unfair term so perhaps not a good example to support your position... 

Fundamentally I think you need to take a step back and explain to yourself and the OP why "non-refundable" in the OP's case is not a Core Term of the contract? 

The same room for the same date booked at the same time with the same breakfast/wifi/parking options is two different prices depending on whether you choose refundable or non-refundable. Refundable or not is literally the only differentiator for a £100 price difference so I genuinely cannot see how that cannot be considered as part of "the main subject matter of the contract".

TL;DR it is a core term and so it cannot be unfair from a legal viewpoint as the OP chose the option knowingly and willingly.

the_lunatic_is_in_my_head

MobileSaver said:

the_lunatic_is_in_my_head said:

MobileSaver said:.

And as already pointed out, this whole conversation is pointless anyway as "unfair terms/good faith/imbalance" only apply to "the small print" and the OP has admitted they knew they selected non-refundable so it was presumably prominently displayed at the point of entering the contract.

The CAA paper makes mention to the Parking Eye case, the pay £80 if you stay longer than x hours isn’t in the small print but was still tested for fairness. 

This is starting to turn into a whataboutism and while no expert on the Parking Eye case I am pretty sure it was also found NOT to be an unfair term so perhaps not a good example to support your position... 

Fundamentally I think you need to take a step back and explain to yourself and the OP why "non-refundable" in the OP's case is not a Core Term of the contract? 

The same room for the same date booked at the same time with the same breakfast/wifi/parking options is two different prices depending on whether you choose refundable or non-refundable. Refundable or not is literally the only differentiator for a £100 price difference so I genuinely cannot see how that cannot be considered as part of "the main subject matter of the contract".

TL;DR it is a core term and so it cannot be unfair from a legal viewpoint as the OP chose the option knowingly and willingly.

Yes correct it was found to be fair term, due to the argument of legitimate interest. If you think that would apply here perhaps it would, perhaps it wouldn’t  

As I said the term is triggered on termination, as such I don’t believe it’s a core term. 

MobileSaver

the_lunatic_is_in_my_head said:

MobileSaver said:

the_lunatic_is_in_my_head said:

MobileSaver said:.

And as already pointed out, this whole conversation is pointless anyway as "unfair terms/good faith/imbalance" only apply to "the small print" and the OP has admitted they knew they selected non-refundable so it was presumably prominently displayed at the point of entering the contract.

The CAA paper makes mention to the Parking Eye case, the pay £80 if you stay longer than x hours isn’t in the small print but was still tested for fairness. 

This is starting to turn into a whataboutism and while no expert on the Parking Eye case I am pretty sure it was also found NOT to be an unfair term so perhaps not a good example to support your position... 

Fundamentally I think you need to take a step back and explain to yourself and the OP why "non-refundable" in the OP's case is not a Core Term of the contract? 

The same room for the same date booked at the same time with the same breakfast/wifi/parking options is two different prices depending on whether you choose refundable or non-refundable. Refundable or not is literally the only differentiator for a £100 price difference so I genuinely cannot see how that cannot be considered as part of "the main subject matter of the contract".

TL;DR it is a core term and so it cannot be unfair from a legal viewpoint as the OP chose the option knowingly and willingly.

As I said the term is triggered on termination, as such I don’t believe it’s a core term. 

Unless you can provide any evidence that a term triggered on termination is excluded from being a core term then I think this discussion has run its course. I've read through the Unfair terms guidance and several other official .gov.uk sources and can't find anything that supports your view.

At the end of the day, if "non-refundable" was not a core term of the contract, why did the OP pay £100 less for an otherwise identical room? Or perhaps look at it from a different perspective, why would another person pay £100 more for an otherwise exact same room if the termination policy is not part of the main subject matter of the contract?