PI Brief Update

Package Travel Claims: Where Are We Now? - Katherine Allen, Hugh James

21/10/19. In April 2018 regulations[1] implementing Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements (PTD 2015) were published. These came into effect on 1 July 2018. The Directive acknowledges that since the first Package Travel Directive was adopted in 1990 (PTD 1990), implemented in the UK in the form of the 1992 Package Travel Regulations (PTR 1992), the holiday market has undergone considerable changes and holidays were no longer purchased in the same way. Many combinations of travel services sold as a result were either clearly not covered by PTD 1990 or fell into a legal “grey zone”, creating uncertainly about the status of the holiday purchased.

So what has changed under the 2018 Regulations (PTR 2018)?

Wider Definition of the Term “Package”

Regulation 2(5) defines “package” in much wider terms than its predecessor. A “package” has to be a combination of two different types of travel service for the purpose of the same trip or holiday.

“Travel service” is defined in Regulation 2(1) as:

1. the carriage of passengers;

2. the provision of accommodation which is not intrinsically part of the carriage of passengers and is not for residential purposes;

3. the rental of cars and other motor vehicles subject to some qualifications;

4. any other tourist service not intrinsically part of a travel service within the meaning of points (a), (b) or (c)”

As well as the traditional pre-arranged package holiday (usually consisting of a flight and accommodation purchased from one tour operator at the same time), the definition in Regulation 2(5) now also covers a holiday where separate contracts for travel services are concluded with individual travel service providers provided they are either:

(1) purchased from a single point of sale and selected before the traveller agrees to pay;

(2) offered, sold or charged at a total price as well as an inclusive price;

(3) advertised under the term “package” or a similar term;

(4) combined after the conclusion of a contract by which a trader entitles the traveller to choose among a selection of different types of travel services; or

(5) purchased from separate traders through linked online booking processes where the traveller’s name, payment details and e-mail address are transmitted from the trader with whom the first contract is concluded to another trader or traders, and a contract with the latter trader or traders is concluded at the latest 24 hours after the confirmation of the booking of the first travel service.

Despite the wider definition, there remain some obvious ways in which a holiday can be marketed that would avoid the application of the regulations. In addition, ongoing innovation in the travel industry may mean that the 2018 Regulations are out of date almost as soon as they come into force.

In any event, it is only a matter of time before the issue of whether a combination of travel services amounts to a package is tested before the courts.

Responsibility for Performance of the Package

Under the PTR 1992, for a tour operator to be liable, the Claimant had to establish improper performance of the package holiday contract by reference to local standards.

Regulation 16(3) of the PTR 2018 states that the organiser must offer the traveller appropriate compensation for any damage which the traveller sustains as a result of any lack of conformity. Regulation 16(4) confirms the traveller will not be entitled to compensation if the lack of conformity is:

• attributable to the traveller;

• attributable to a third party unconnected with the provision of the travel services included in the package travel contract and is unforeseeable or unavoidable; or

• due to unavoidable and extraordinary circumstances

Although the language appears at first blush to be slightly different from that used in the PTR 1992, when you look at the detail the terminology is not dissimilar. “Lack of conformity” is still likely to fall to be determined by reference to local standards given that the definition of the term refers to the concept of “improper performance”. The defences are in remarkably similar terms.

It is likely, therefore, that it is the wider definition of what amounts to a package that will be the area where the most significant changes between the PTR 1992 and the PTR 2018 will surface. At the date of writing there are no reported cases on the interpretation of the PTR 2018 but the wealth of case law that its predecessor generated suggests that it can surely only be a matter of time before the PTR 2018 finds itself before the courts.

Katherine Allen, Partner and Travel Litigation Specialist, Hugh James