Abta Travel Law Seminar: Legal experts assess travel industry Continued from page 40 The CMA published
guidance on refunds for businesses and consumers in April and updated and expanded this in August “because of the additional restrictions”. Hadley acknowledged: “It’s
our view of the law. [But] in the end, it will be judges and courts which decide.” Leading industry lawyer
Rhys Griffiths, head of travel at Fox Williams, has criticised the CMA view of the legal position in relation to Foreign Office advice as “over-simplistic” and warned it “risks creating false expectations” (Travel Weekly, September 10). However, Hadley told the
seminar: “What we’ve said is ‘if a package holiday could be cancelled in light of Foreign Office advice against travel, we think consumers are entitled to a refund. There is a little uncertainty there. It is an ‘if ’. “The PTRs are not as clear
as some Abta members might like, but there is a general assumption the law means you should be getting your money back.” He argued: “Where there
is quarantine in place at the destination, it’s likely to lead to a cancellation right. It’s less clear where there is quarantine on return as that does not affect the fulfilment of the contract.” But Hadley added: “It’s very
difficult not to see the existence of this virus in a destination as ‘unavoidable and extraordinary’, in which case it would give consumers the right to a refund.” The PTRs give consumers the
right to cancel a package booking with a full refund in the event of “unavoidable and extraordinary circumstances” at the destination “or its immediate vicinity”.
‘Expect Covid claims and respond to them robustly’
Lawyers have warned of a “rush of Covid claims” and urged travel firms to “be tough” in response. David Scott, partner at law
firm Horwich Farrelly, told the Abta Travel Law Seminar: “Claims management companies will be jumping on the bandwagon. “So many companies have
formed already. There are 700-800 companies with Covid or coronavirus [in the title] and about 100 aimed at bringing claims. You may not be seeing these claims at the moment, but they are coming.” Scott said insurers had already set
up teams to handle Covid claims and warned of “indirect claims such as slipping on hand sanitiser” as well as claims of contracting Covid. Barrister Sarah Prager of
1 Chancery Lane said: “If you were a claims company, where would you go having lost whiplash and holiday sickness claims? There will be a rush of Covid claims.” However, Scott said claims would
“have to get over several hurdles”. He said: “Claimants have to prove
they contracted the virus, that you did something wrong and that caused their illness.
“It will be difficult for them to
prove they contracted Covid. They will have to prove a breach of duty of care or negligence. You need to prove you did enough. If the claimant can prove you did something wrong, they still have to prove it made a difference and that will be a battleground.” Barrister Ben Phelps of 2 Temple
Gardens agreed, saying: “The industry needs to be tough with these claims.” He argued: “[Proving an infection]
without a test will mean debate about the symptoms and what else it could be. With a test, there will be debate about the accuracy of tests and their timing. With breach of duty there will be debate because if countries are strug- gling with [Covid], it’s entirely fair that companies will be struggling with it.” Phelps insisted: “Proving
David Scott
‘A local lockdown is valid reason for travel cancellation’
Consumers are entitled to cancel holiday bookings if subject to local lockdowns, but “reasonable” cancellation charges should apply. Andrew Hadley, Competition
and Markets Authority (CMA) assistant director for policy and advocacy, told the Abta law seminar: “Asking a consumer to
38 1 OCTOBER 2020
commit a criminal offence to catch a flight to go on holiday seems unreasonable. Where there is a legal requirement to remain at home, we believe it likely to lead to a cancellation right.” But Abta head of legal services
Simon Bunce pointed out: “If customers can’t travel because they can’t leave their home town, the travel company is entitled to recover monies they can’t recover elsewhere.” Hadley agreed: “It would require
the consumer terms to be fair, although we appreciate it would be
cause [of a Covid infection] is the claimant’s burden. The defendant has the advantage. People develop different symptoms at different stages. It will be simple to challenge.” Scott noted: “If a claim is brought, respond quickly and robustly.”
harder to resell a holiday at present.” Travlaw senior partner Matt
Gatenby said: “You can equate this to someone who breaks a leg just before travel. You can still deliver the holiday. If that is not a case for travel insurance, I don’t know what is.” Kemp Little partner Farina
Azam agreed, saying: “The Package Travel Regulations don’t provide for a refund where local restrictions prevent a travel departure as long as your cancellation charges are reasonable and fair. Make sure they’re a genuine reflection of the costs of cancellation.”
travelweekly.co.uk
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