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NEWS TRAVEL WEEKLY BUSINESS CONTINUED FROM THE BACK


many more packages [under the new regulations], so much more potential for liability.” He said: “Agents can be


liable if they haplessly allow themselves to be identified as an organiser. Even if you make clear you are an agent, if you put elements together at an inclusive price it will be a package and you will carry the liabilities as an organiser. “Clients struggle to understand this now. It will be true in spades under the new regulations.” Agents will also be liable for “miss-descriptions” of holidays and for “negligence or a negligent miss-statement in the booking process”, he said. “If you sell more than one


[holiday] element together you may be found to have sold a package. Judges will be under pressure to lean in the direction of saying ‘You sold a package’.” Barrister Sarah Prager of 1 Chancery Lane agreed, saying: “The new liability is bad for those who have tried to avoid liability through clever company structures or documentation. They are going to have a problem.” Maria Pittordis, marine,


trade and energy business group leader at Hill Dickinson, highlighted organisers’ extended liabilities when things go wrong. These will include a customer’s right to cancel a booking in the event of “unavoidable and extraordinary circumstances” in a destination or its “near vicinity”. Pittordis said: “The industry will want to limit the circumstances in which travellers can terminate. So this is likely to be contested. I see problems developing. Risk assessments in resorts will be very important.” Mason agreed, saying: “The


words ‘in the vicinity’ will be subject to a lot of litigation.”


Abta Travel Law Seminar: Compensation claims and new employm


Compensation: ‘Claims firms suing for any delay’


Specialist claims companies are “pushing the boundaries” of passenger compensation for flight delays.


Lawyer Sue Barham, partner at Holman Fenwick Willan, told the Abta travel law seminar: “Claimant companies are moving into bird strikes, lightning strikes, weather – even snow closing an airport. “The result is a massive increase


in the number of claims per flight.” Barham reported the rate of claims had risen from 10% of passengers on delayed flights in the late 2000s to 60%-70% today. She added: “The starting point


for claims companies seems to be if something could happen, airlines have to expect it. Whether an event is, in reality, beyond the control of the airline is no longer relevant.” Claims are brought under EU


Regulation 261 on air passenger rights, introduced in 2004 to ensure compensation for cancellations or denied boarding and entitlements to refreshments. A subsequent ruling by the


European Court of Justice extended compensation to delays of three hours or more, while other rulings have restricted carriers’ ability to


Appeals: Lawyer urges travel firms to contest rulings


Travel firms have been advised to contest compensation cases when lower courts disregard higher court rulings, such as the requirement for claimants to produce evidence of local safety standards. Barrister Sarah Prager said the


68 travelweekly.co.uk 19 May 2016 DELAYS: Airlines face a growing list of claims for compensation 60-70%


Passengers on delayed flights who make claim


withhold delay compensation on the grounds of “unavoidable or extraordinary circumstances”. For an airline to fight a claim for


delay compensation, she said: “You need evidence a technical issue is down to a manufacturing issue and not wear and tear. Premature failure [of a part] is not enough.”


2014 ruling in Lougheed v On the Beach should have been “the final word on local standards”. But she highlighted two cases at Croydon County Court, Blades v Thomas Cook in December 2015 and Morrin v Thomas Cook in February 2016, which she said “show a district judge having none of it”. Thomas Cook lost both cases.


But Prager insisted: “A claimant is required to demonstrate local standards. I would appeal if claims go against you. You have to pick up


Recent cases in the UK courts


involving a bird strike and a lightning strike have gone in the claimants’ favour. Barham said: “These cases were definitely wrongly decided, but they are having an effect. Back in 2005 you could pretty much defend all these as ‘extraordinary’. Now we’re left with manufacturing defects, security threats and terrorism.” Abta legal affairs director Simon


Bunce queried whether the courts’ interpretation of air passengers’ claims could “leak into the new Package Travel Directive”. Barham warned: “It’s very likely.”


the costs, but if you don’t appeal you will get lots of claims.” Separately, Plexus Law partner


Michael Gwilliam said the government’s intention to raise the small-claims limit to £5,000 should benefit businesses. He said: “The vast majority of


claims for sickness and ill health [on holiday] fall below the £5,000 threshold. It will inevitably lead to a reduction in claims being pursued by solicitors [but] could lead to more claims pursued by consumers.”


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