EVENT SPONSORS BUSINESS NEWS of the pandemic. Ian Taylor reports

‘Heed Foreign Office advice to safeguard against Covid claims’

Travel organisers should not be unduly concerned about the risks of clients developing Covid-19 while travelling as long as they follow Foreign Office advice. That is the view of Travlaw

senior counsel Stephen Mason, who told the Future of Travel summit: “There is a potential ‘duty of care’ responsibility under the Package Travel Regulations and under English Common Law. But it may not be that easy for a consumer [to win a claim] where the Foreign Office has not advised against travel to a destination. “If a person goes to that

destination and develops Covid, they are going to have to show they contracted it through a service linked to the package holiday. “They’re going to have to show

it was caused by negligent provision of a service – [such as] not follow- ing protocols in hotel cleaning. Given the wide incubation period for this illness, it may not be easy.” But Mason said: “If you take

consumers to a destination contrary to Foreign Office advice, then you are definitely notching up the odds against you winning a case.” He acknowledged operators

may look to change terms and conditions to account for the risks of Covid but warned: “You can’t contract out of consumer rights.”

Stephen Mason

RCNs play crucial role but ‘insurers regard them as refund liabilities’

Refund credit notes (RCNs) have been vital in enabling travel businesses to survive despite unprecedented volumes of cancellations due to Covid. But insurance underwriters

view outstanding RCNs as outstanding refunds rather than forward bookings, according to Chris Photi, head of travel and leisure at White Hart Associates. Photi told the Travel Weekly

Future of Travel summit: “Insurance underwriters’ take on refund credit notes is that you will have to refund everybody. “They say, ‘We’re going

to assume you have to pay all that cash’. They’re refusing to recognise the point of a refund credit note is to allow the

customer to remain protected and come back and say, ‘I’d like an Easter holiday in 2021’ and use the credit note to book.” John de Vial, Abta director of

membership and financial services, told the summit the continuing failure of airlines to process refunds was “one of the reasons the government has given the flexibility it has with refund credit notes, acknowledging that Abta and the CAA have been protecting them”. Stephen Mason, senior counsel

at Travlaw, said: “I wonder whether RCNs could become a permanent feature of the landscape, could have statutory backing by being built into the Package Travel Regulations. Some governments in the EU did that.”

Abta sought chargeback suspension

Abta sought a temporary suspension of chargeback rights on credit card transactions at the height of the cancellations and refunds crisis due to Covid, but the government refused. Speaking at Travel Weekly’s Future

of Travel summit last week, John de Vial, Abta’s director of membership and financial services, revealed the association asked the government to intervene in the issue. De Vial said: “We did a lot of work

talking to the Department for Business and other agencies of government about that [the Consumer Credit Act] and whether anything could be done to interfere with it on a temporary basis, to suspend it in some way during this crisis, particularly for the retail community. The government wasn’t prepared to do that.” He said: “The real victims of

chargebacks are retailers, [who] would not ordinarily have the legal responsibility [for refunds] of a travel organiser or an airline. Yet they are the merchant of record on a transaction under the Visa and Mastercard agreements.” De Vial added: “Part of the

problem with chargebacks is that the system operates under agreements that Visa and Mastercard hold with merchants and operates as a separate regime to the law. “The fact that a consumer

can recover their funds under the Consumer Credit Act is a protection that, in most circumstances, we all value as consumers. “It seems sensible and indirectly

relieves the burden on other protection costs. So in normal times,

we look fondly on it as something that benefits our industry.” De Vial argued: “Different

acquiring banks have behaved quite differently through this, some being pretty good and consistent on recognising refund credit notes and rebooking arrangements, others less so. “It’s a real problem, but I can’t see

anything fundamentally changing. The government will say that, outside of something as extraordinary as Covid, this is good for consumers and good for confidence in trade.” Stephen Mason, senior counsel

at Travlaw, told the summit: “My message to agents is to challenge, challenge, challenge chargebacks. “Just because you receive notice

of a chargeback, doesn’t mean you have to lie down. You have a right to challenge, a right to appeal.”

John de Vial 24 SEPTEMBER 2020 39

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