As the summer holiday season comes to an end a new season begins – the holiday complaints season. These disputes have been a fruitful source of work for the small claims court for many years. Holiday claims fall into a fairly unique position as one of the very few claims in contract law where damages for distress and inconvenience are recoverable (another claim in such a unique position is that relating to weddings - so if you had a spoiled wedding and a rotten honeymoon you have a double-whammy of sorts). Having dealt with such disputes for over 20 years I proffer my top ten tips about bringing such claims, which I hope will be helpful:
1. Don’t litigate – mediate
This is the first and, by far, most important tip. Since the new procedures for civil proceedings were introduced in 1999, the emphasis has been on discouraging litigation generally and seeking to settle claims instead. Most responsible travel companies are ready to consider settlement if they feel that the claim is genuine and justified (see tip 5 below). It is surprising how many travellers actually recover less or even nothing when they reject a reasonable offer from the travel company and decide to go to court instead. Going to court is filled with uncertainties. Even if small claims costs are limited, you also have to take into account court fees and the time you have to put aside to deal with the dispute.
2. There are strict regulations which limit damages arising out of air travel
As air travel gets cheaper so it seems to get more fraught. Because flying forms the start and end of many holidays, it can both set the tone for the holiday and be a source of post-vacation depression. There is nothing like a 24-hour delay on the way home to dissolve all inner peace achieved during two weeks on a sun-kissed beach. The bad news is that regulations apply to most aspects of air travel and severely limit the damages that may be recovered. A glance at EU Regulation 261/2004/EC is as salutary as a cold bucket of water thrown in the face and is worth studying before bringing any claim – try www.lal.lt/en/main/info/eu_261. Further, while a personal injury incurred on a plane flight as a result of negligence on the part of the carrier may be actionable, a screaming child on a long-haul flight or urine pouring underneath the toilet door are not, nor are most other uncomfortable experiences which may, unfortunately, occur. What about trying to enjoy yourself in Ibiza with one set of clothes while your luggage has the holiday of a lifetime in Hawaii? Limited by regulation I’m afraid. Separate comprehensive travel insurance may help to bridge the gap.
3. Foreign countries are different
No matter how much the British try to recreate foreign resorts in their own image, the fact is that it is a mistake to judge ‘abroad’ by our own standards. Thus, for example, food may be served lukewarm at some restaurants on Greek Islands; there may be a lot of dogs on French camp-sites – the French love their dogs; some places do still have holes in the ground for toilets and no washing facilities. Compromises have to be made depending on where you are going and what you are promised or not promised by the glossy brochure.
4. You get what you pay for
You will not get five-star treatment for a two-star price. By all means congratulate yourself on getting a great deal on a holiday for £89 but don’t be surprised if what you get actually reflects what you paid. The star system is not particularly reliable anyway. What is classed as four star in one country, or even in one area, may be two star or less in others. Many travel companies do not rely on stated star ratings but rely instead on their own assessments, which may radically conflict with the local assessment. There also seems to be a particular problem with those who book last minute deals through Teletext and do not have an immediate opportunity of seeing what their accommodation or its surroundings actually look like in advance. It can be rewarding but it can also be risky. Where you can, rely on trusted recommendation or look at the travellers’ comments on particular places, hotels and restaurants which can often be found on the internet.
5. Suing for the whole cost of the holiday may be counter-productive
It is a common practice by complaining holiday-makers to claim back the whole of the cost of a holiday. I can understand this – it can take very little to spoil a holiday – a bad meal, surly service, a partially-obscured sea-view. However, tactically this is often a mistake. First, you run the risk of being seen as an unreasonable opportunist; secondly, travel companies may not be as willing to attempt to settle a claim with a traveller who is making a mountain out of molehill, rather than one who limits the amount of the claim to the actual area of complaint (see tip 1 above). Proportionality is an important feature of civil litigation and will be applied by the court. Very few holidays are actually a total disaster – it is more likely that one or two aspects have been unsatisfactory. Try to tailor the claim just to them – this may enhance your credibility.
6. Beware the dangers of do-it-yourself
With the increase in use of the internet, many more travellers are booking their own holidays – flight, car hire and accommodation and so on. This is all very fine and money may even be saved on occasion but there is an in-built danger. There are regulations which give quite creditable protection for those who prefer to go the good old package holiday route where the travel company arranges everything for you. If anything goes wrong with any one component of the package, your claim will be against the travel company which is usually based in the UK and is probably bonded. Arrange your holiday yourself and you have no such protection. If your hire car doesn’t materialise when you turn up at Limpopo airport, your claim is against the car rental company and, worse still, you may find that your contract with them was in fact made in the away country and not in dear old Blighty. The net result is that you may not have jurisdiction to sue in this country but must place yourself in the hands of a foreign jurisdiction and foreign places are different (see tip 3 above).
7. Have good evidence
Photos and/or videos are worth a thousand words. Independent witnesses (i.e. not the brother and his wife who came with you on your fateful trip) may also be a source of useful and believable information.
8. The damage claimed must flow directly from the breach
The best way to illustrate this is from a recently reported case. Dr Wiseman was inexplicably prevented from boarding a return flight from Nigeria to London by Virgin Airlines staff and was only allowed to do so several days later. He was able to recover reasonable accommodation, food and taxi expenses. He was not able to recover anything for the expenses of his fiancée whose connecting flight to London he failed to meet, the expenses of his friends who accompanied him to the airport, injury to reputation, nor mental trauma, including the effects of being robbed in Nigeria while waiting to return to London. A claim of almost £20,000 was reduced to one under £3,000.
9. To succeed in a claim there must be someone to blame
For example, a bad case of gippy tummy can be uncomfortable and inconvenient but the traveller has to prove who caused it. Was it the hotel swimming pool? Was it a crew member on a cruise line? Are the travel companies to blame? These are not easy questions to answer. Some degree of expert evidence is likely to be necessary and, even then, may prove inconclusive. It has to be proved that the defendants were somehow responsible for what happened.
10. Don’t litigate – mediate!
See tip 1. Bon voyage!
Further details are available from the Chairman of the Solicitors Family Law Association (now called "Resolution"), Andrew Greensmith at andrewgreensmith@dicksohaslam.com
