14
Dec
20
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Carry on Donating Edition

Our hearty thanks go to all of our readers for donating so generously to Crisis at Christmas via the link provided in last week’s Weekly Roundup (First Christmas Alone — Police Dog Hogan). Our fundraising efforts have been so successful that the band has surpassed its original target figure, and is within a few percentage points of attaining its revised target. Well deserved pats on backs to all.

 

Carry on Flying

The second wave of Covid-19 has arrived in more ways than one for the beleaguered travel industry, in the form of the next round of refund and rebooking disputes with consumers.

In the wake of the initial chaos of the pandemic, travel firms and airlines implored holiday makers to rebook their holidays or accept various forms of credit vouchers, rather than request refunds for their cancelled holidays. Many travel firms initially refused refunds out of hand, forcing the Competition and Markets Authority to get involved in order to secure refunds for those who had requested them.

As many will, by now, be aware, the law on refunds for cancelled package holidays is helpfully clear. Where a booking is for a package holiday to which the Package Travel and Linked Travel Arrangements Regulations 2018 apply, the “organiser” of the package is required to provide a refund in full within 14 days where the organiser cancels the holiday “because of unavoidable and extraordinary circumstances”.  The requirement is imposed by Regulations 13 and 14, which imply the obligation as a term into every package travel contract.

Many consumers, however, did accept a rebooking or a credit voucher. This was a show of support for the travel industry which may lead to further headaches for consumers, however. As the effects of the pandemic continue to be felt with further lockdowns and ongoing travel restrictions, many consumers may now have had a change of heart. Many may now prefer (or need) to have the cash back from holidays which are increasingly likely to be much further away than previously anticipated.

Whether consumers will be in a position to get refunds now is likely to depend on what they accepted from their travel operator when their holiday was initially cancelled.

Those with refund credit notes will probably be able to exchange them for cash. Those who accepted rebooking vouchers however, are likely to be met with an argument from the operator that they can still use their voucher as it hasn’t expired (many are valid for 12 months or more) and that therefore they aren’t entitled to a full refund. Those with rebooked dates next year who have now had a change of heart or circumstances will be able to cancel, but probably with the loss of their deposits.

It appears that there is going to be a second wave of disputes between consumers and the travel industry as the year draws to a close and we look to the early months of next year. This time round however, the disputes are looking likely to be more fragmented, with consumers now falling into distinct groups depending on how they opted to deal with their disappointment the first-time round.

The industry will welcome the news of vaccine roll outs as a positive sign that things may begin to improve, but the end is still some way off.

About the Author

Chris Pask was called in 2013. He undertakes work arising out of contractual disputes, including cases involving sale of goods and supply of services, and in particular claims raising issues of fundamental dishonesty. Chris accepts instructions by way of Direct Public Access.

 

Carry on Consulting: Jet2 Holidays v Hughes reconsidered

The Civil Justice Council (“CJC”) is currently carrying out a review of all Pre-action Protocols (“PAPs”).  They would like all those with experience of PAPs to complete their survey, accessible here:

The PAPs make up a somewhat miscellaneous collection, including as they do the Pre-action Protocol for Personal Injury Claims (the oldest PAP) and the narrowly defined Pre-action Protocol for Possession Claims Based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property.  Certain claims (for example claims in nuisance) are not covered by a PAP.  The CJC’s provisional terms of reference address diverse topics, including the differences between PAPs, the purpose of PAPs, and sanctions for non-compliance.  The case of Jet 2 Holidays Limited v Hughes [2019] EWCA Civ 1858; [2020] 1 WLR 844 is cited.

In Jet 2 the Court of Appeal considered whether committal proceedings under CPR 81 could be brought if false statements were made in a witness statement signed with a statement of truth, but proceedings were never brought.  The court found that dishonest witness statements which were filed (purportedly) in compliance with a PAP were capable of interfering with the administration of justice and thus engaged the jurisdiction to commit for contempt of court.  The judgment was unequivocal about the significance of the parties’ communications prior to the issue of proceedings, and regardless of the exact wording of the relevant PAP[1]:

“40.  All PAPs, however, expressly state that one of their objects is to enable proceedings to be managed efficiently where litigation cannot be avoided: see, for example, the Practice Direction on Pre-Action Conduct and Protocols, paragraph 3(e), the Personal Injury Claims PAP at paragraph 2.1(d), the Disease and Illness Claims PAP at paragraphs 1.2 and 3.1 and the Resolution of Package Travel Claims PAP at paragraph 3.1(5). Paragraph 4 of the Pre-Action Conduct Practice Direction provides that neither a PAP nor the practice direction must be used by a party as a tactical device to secure an unfair advantage over another party and that only reasonable and proportionate steps should be taken by the parties to *853 identify, narrow and resolve the legal, factual or expert issues. A dishonest witness statement designed to elicit from a potential defendant an admission which may be deployed against that person in any subsequent proceedings (as to which, see CPR r 14.1A ), runs directly counter to that requirement. The adverse consequences for the proper administration of justice are plain…

  1. In practice claimants often serve witness statements as part of compliance with a PAP, even though that is not strictly required by the PAP. They do so, as in the present case, to give weight to the claims. Observations of Moore-Bick LJ in KJM Superbikes Ltd v Hinton (Practice Note) [2009] 1 WLR 2406 in relation to a false witness statement served in the course of proceedings apply with equal force to witness statements served as part of purported compliance with a PAP….”

It is right in my view that witness statements sent pre-action should have consequences comparable to those of witness statements exchanged in the course of proceedings.  But it is also only fair that PAPs warn litigants – of whom a significant minority are unrepresented – that evidence sent pre-action must be reliable, and that weighty consequences may result if the evidence is false.  Such a warning might have the added benefit of prompting Defendants to give more weight to the evidence they receive under the PAPs.

About the Author

Susanna Bennett was called to the Bar in 2017 and now accepts instructions across all of chambers’ areas of expertise. She is instructed by Claimants, insurers, local authorities and NHS Trusts, and has a particular interest in clinical negligence and travel law.

 

…And Finally…

We don’t know about our readers, but we at 1CL have been treating ourselves lately, knocking back the eggnog and conducting hard fought mince pie tastings (the 1CL mince pie supply contract is an astonishingly lucrative one). But don’t think we’ve forgotten you! On Tuesday we will be gathering together to conduct our Festive Caselaw Roundup. Four members of chambers representing five practice groups; festive jumpers and hats; 45 minutes covering the most important authorities of the year; all your questions answered; we know, we’re spoiling you.

 

[1] In Jet 2 the parties proceeded under the wrong PAP, and there was no requirement for a pre-action witness statement.

 

Written by or involving: Christopher Pask, Susanna Bennett

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